Viral Sovereignty, Vaccine Diplomacy, and Vaccine Nationalism: the Institutions of Global Vaccine Access

• Publication year: 2022

Viral Sovereignty, Vaccine Diplomacy, and Vaccine Nationalism: The Institutions of Global Vaccine Access

Sam F. Halabi

Ana Santos Rutschman

VIRAL SOVEREIGNTY, VACCINE DIPLOMACY, AND VACCINE NATIONALISM: THE INSTITUTIONS OF GLOBAL VACCINE ACCESS

Sam F. Halabi^* Ana Santos Rutschman^**

ABSTRACT

The COVID-19 pandemic has triggered a global vaccine race. Distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. This Article is the first to describe the phenomena that have driven the development of international vaccine-sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.

This Article explores the longstanding dissociation between global public health imperatives and nationalist responses to pandemics within the frameworks of "vaccine nationalism," "viral sovereignty," and "vaccine diplomacy." The Article then considers two international agreements indicative of an interest in international collaborations, division of gains from trade, and sustained governance structures—the 2011 Pandemic Influenza Preparedness Framework, and the 2020 COVAX Vaccines Pillar of the ACT Accelerator. The

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recurrence of these legal arrangements suggests that, to save the transaction costs generated by repeated development of ad hoc structures that centralize vaccine distribution, a permanent facility may be developed. One possibility for such a facility is the Pandemic Influenza Preparedness Framework, adapted to become an all- or most-pathogen-sharing international organization. A second possibility, which gained some momentum during the COVID-19 pandemic, is a Pandemic Treaty establishing the terms under which pandemic vaccines will be developed and shared in the future.

TABLE OF CONTENTS

INTRODUCTION.................................................................................................2

I. VACCINE NATIONALISM........................................................................9

A. Vaccine Nationalism: Polio, Smallpox, and Influenza ............... 11
B. Vaccine Nationalism: SARS-CoV-2 COVID-19 ......................... 13

II. VIRAL SOVEREIGNTY...........................................................................17
III. INTERNATIONAL INSTITUTIONS AND THE EMERGENCE OF THE LEGAL NORM OF VACCINE ACCESS.....................................................22

A. The Pandemic Influenza Preparedness Framework................... 22
B. The COVAX Facility................................................................... 24

IV. THE FUTURE OF PANDEMIC VACCINE ACCESS AFTER COVID-19......27

CONCLUSION...................................................................................................31

INTRODUCTION

The COVID-19 pandemic has triggered a global vaccine race, and distributive questions about which countries will receive scarce doses, and under which conditions, pervade international law and diplomacy.¹ As vaccines are

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distributed worldwide over the first few months of 2021, this Article analyzes the problem of vaccine access as a critical question in the literature on sources of international law and the influence of those sources.² As with past pandemics, research and development (R&D) capacity is largely concentrated in the wealthy countries of Europe and North America with growing capabilities in East and South Asia.³ Over the course of 2020, some governments exercised extreme forms of "vaccine nationalism," refusing to share, or contemplate sharing, COVID-19 vaccines or related knowledge with any populations but their own.⁴ According to Rutschman:

As some governments began narrowing down the roster of projects receiving priority status in late spring, the first hints of "vaccine nationalism" appeared. The expression is linked to agreements that reserve the bulk of emerging vaccines for a limited number of countries, traditionally in the developed world. While these strategies are not new, they have become a recent hallmark of negotiations during large-scale outbreaks of vaccine-preventable diseases. If left unaddressed, vaccine nationalism can have serious consequences for equitable access to the first COVID-19 vaccines to come to market.⁵

Other governments balanced the needs of their domestic populations with regional or global diplomatic objectives.⁶ Within this latter category, some governments shared bilaterally as a means of furthering local or international influence, while others participated in a multilateral sharing mechanism

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coordinated by international organizations.⁷ Of course, as with past pandemics, the great majority of governments were left without vaccine development and manufacturing capacity, possessed few resources with which to procure vaccines under prevailing commercial circumstances, and were therefore vulnerable and open to overtures from both bilateral and multilateral acquisition sources.⁸

As Adam Hancock noted in the EU Observer:

Inequality in vaccine coverage between rich and poor countries is stark. More than 1.5 million people die from vaccine-preventable diseases every year around the world, with the vast majority of these deaths in low-income countries.

Coronavirus is only making things worse.

The Global Alliance for Vaccines and Immunisation (Gavi) recently announced that 80 million children in at least 68 countries may now be at risk of contracting a range of regular diseases after the pandemic heavily disrupted routine immunisation programmes.

Systems to deliver and administer vaccines have been hit by a mixture of travel restrictions, delivery delays and people choosing not to leave their homes to be vaccinated due to the ever present threat of infection.

If this continues, health experts fear that low income countries won't be able to effectively administer a new coronavirus vaccine.

"If we neglect the supply chains and immunisation infrastructure that keep these programmes running, we also risk harming our ability to roll out the Covid-19 vaccine that represents our best chance of defeating this pandemic," said Gavi chief executive Seth Berkley.

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Traditionally, the cost of securing vaccines has always hindered developing countries. To put it bluntly, they simply can't afford most of the new vaccines being produced.⁹

This Article aims to explain this unique constellation of vaccine development and access from the lens of international law, focusing on the nascent global governance regime for vaccine research, development, and distribution. As wealthy governments used bilateral contracts—Advanced Purchase Agreements (APAs)—to secure vaccines for populations in the world's richest countries, those in poor countries remained at risk.¹⁰ Yet both multilateral and bilateral mechanisms emerged that prioritized vaccine access to those populations, an occurrence arguably at odds with realpolitik conceptions of how and why governments assess their legal options during international emergencies. We explore this dissociation between global public health imperatives and nationalist responses to the pandemic within the frameworks of "vaccine diplomacy," "vaccine nationalism," and "viral sovereignty." The Article ultimately argues that, over the course of the last thirty years, a global regime of vaccine access has emerged and, while not yet cohesive or uniform, it has manifested common characteristics through two vaccine-preventable global public health emergencies: H1N1 pandemic influenza and COVID-19.¹¹ A third, more regional epidemic, Ebola, demonstrated similar characteristics.¹² Even

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more importantly, this regime has been formed and implemented by international organizations, rather than coordinated through individual governments.¹³

Within the broader context of international law scholarship, this Article contributes a significant case for international organizations as international law-makers.¹⁴ The Article focuses on two international agreements—the 2011 Pandemic Influenza Preparedness (PIP) Framework, and the 2020 COVAX Vaccines Pillar of the ACT Accelerator (COVAX)—neither of which is a treaty, neither of which codifies customary international law as it would be conventionally defined, but both of which have been negotiated and implemented by international organizations.¹⁵ These organizations include specialized U.N. agencies like the World Health Organization (WHO) and United Nations Children's Fund (UNICEF), as well as international organizations technically formed under national law, but which include a broader set of decision-makers (including governments) like the Coalition for Epidemic Preparedness Innovations (CEPI) and the Global Alliance for Vaccines and Immunizations (GAVI).¹⁶ Each agreement represented a legal

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solution to disputes between high-income countries seeking to hoard medicines for their citizens, and low-income countries seeking greater shares of vaccines manufactured in high-income countries.¹⁷ Yet realizing those agreements depended on the coordinating and facilitating efforts of international organizations, rather than by individual or collective action by governments.

The importance of this development is significant not only in the context of sources of international law, but in the relative influence of those sources. Vaccine diplomacy—the efforts of primarily China, India, and Russia to use access to COVID-19 vaccines for regional or international influence—has been fundamentally shaped by international organizations advocating an international norm of vaccine access codified in multilateral legal instruments.¹⁸ COVAX has conditioned the diplomatic outcomes China, India, and Russia may realize through vaccine diplomacy.

The international norm of vaccine access did not emerge because of altruism or self-interest. Rather, it represents a...