• Yeşim Tırpan

Due Diligence and the Threat of Vaccine Apartheid


The most distinct questions that arise from the case of Covid-19 vaccine distribution are namely: to which degree does due diligence come into effect in the case of an international organization assuming the role of governance? Is the normative influence of due diligence sufficient enough to encourage sustainable and equitable distribution of healthcare? What are some of the mechanisms that could be put in place to overcome the discrepancy with regards to the vaccine apartheid and what are their chances of success?


Due Diligence

The definition of Coco and de Souza Dias (2020) with regards to due diligence is simplistic yet all-encompassing: “(Due diligence) ... it is a standard of good governance, assessing whether a state has done what was reasonably expected of it when responding to a harm or danger.” In a situation like a once-in-a-century pandemic, the realist approach to international relations comes back, meaning that states are central actors who can protect their people in the face of threats. This point of view could inherently undermine the element of due diligence which relies upon responsibilities of states outside of their borders. International organizations, like the World Health Organization in this case, are regarded as supplementary actors, as can be seen by the self-satisfying actions of states. This ranges from unilateral actions that block trade and traffic of civilians, draconian measures in the name of public protection, and international beef with China, the assumed origin country of the virus. The latter point is rather hypocritical as the element of due diligence, on the basis of the 2001 Draft Articles on the Prevention of Transboundary Harm, Article 3, on reporting such public health concerns but not necessarily on the 1966 International Covenant on Economic, Social and Cultural Rights, Article 12.1 with regards to the attainment of medical care. The habit of international law in being open for interpretation has backfired in assuring the common welfare of people. Similarly, the WHO has fallen short of its jurisdiction in surpassing the autonomy of the states in these outstanding times.


Vaccine Distribution Reality

Following along with the case of due diligence, its normative influence gets cut short in this case by the desire for profit maximization of private corporations and protectionist efforts of the global north. As mentioned in the piece by Dugard et al. (2021), the struggle to make the Covid-19 vaccine more accessible by making it a public good, as by the right to health principle of due diligence it should be, is being blocked by states of the global north. The protectionism of the states, in their desire to provide for the livelihood of their citizens, has gotten out of hand by their excessive purchasing and blockading of both the already existing and also future supply of vaccines. The WHO has endorsed the efforts of the states who are petitioning for the vaccines to become a part of the public property, yet the mandate of the organization is being undermined by the use of other laws from better-off states.


Looking forward, the most important question with regards to all of this material is: what to do from now on? The remark ‘No one is safe if not everyone is safe (Davies & Furneaux, 2021) is becoming a common understanding now with the most recent UN meeting on the topic. That being established, there seems to be a slim chance of states backing away from going well beyond securing their interests first. It is said that Intellectual Property rights are being used as a poor defense and a lot of states that have secured themselves with vaccines are persistent with their attitude towards vaccine inequity.


This is a case that can teach us a lot about how international laws can be mistreated and overlooked. The view over the power of COVAX remains not so hopeful in the sense that with little support and so much ground to cover, it is in need of endorsement by sovereign states. As the states in the Global North are getting to stock up on vaccines, and the people in the disadvantaged parts of the world are getting worse deals with little amount of money, the discrepancy in the vaccine distribution is once again highlighted. In the times of globalization where the world is ever so close, it is important to secure everyone’s health while we are securing our own.


Conclusion


In conclusion, we find that this case is as relevant of a case about the importance of having more solid provisions in international law as it could possibly be. It is not a field that is so clear-cut and thus has its own ups and downs with each topic. While countries have been going in and out of lockdown for a year in the interest of preserving as many lives as possible, it's quite ironic that in the case of vaccine apartheid, they turn a blind eye to the equally important lives of those outside of their borders.






Bibliography


Coco, A., & de Souza Dias, T. (2020). Part I: Due Diligence and COVID-19: States’ Duties to

Prevent and Halt the Coronavirus Outbreak. Ejil: Talk! Retrieved 03 01, 2021, from https://www.ejiltalk.org/part-i-due-diligence-and-covid-19-states-duties-to-prevent-and-halt-the-coronavirus-outbreak/

Davies, M., & Furneaux, R. (2021). The next Covid crisis: a vaccine apartheid endangering us all. The Bureau of Investigative Journalism. Retrived 05 04, 2021 from https://www.thebureauinvestigates.com/stories/2021-02-06/the-next-covid-crisis-a-vaccine-apartheid-endangering-us-all

Dugard, J., Handmaker, J., & Porter, B. (2021) Mobilising human rights to address coronavirus

vaccine apartheid. OpinioJuris. Retrieved 03 01, 2021, from

https://opiniojuris.org/2021/02/18/mobilising-human-rights-to-address-coronavirus-vaccine-apartheid/



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