Vaccine Apartheid: The Structural Racism of the Intellectual Property Rights Regime 

COVID shots sign
Sign advertising a vaccination site. Credit: Roger Starnes Sr. https://unsplash.com/photos/pvLqXLVMsis

Caroline Ognibene, Research Fellow, Resource, Environment, and Energy Policy Lab
cognibene@africacfsp.org

This report argues that the current limitations on Covid-19 vaccine manufacturing as upheld by the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights are a codification of racist and exploitative political maneuvering. Far from a natural outcome of universally understood intellectual property law, the decision to limit access to vaccine development is a result of the pharmaceutical industry’s extensive influence. The harms of this intellectual property regime entrench structural racism not only within public health but also in the nonprofit sector.  

“The reason we have the vaccine success is because of capitalism, because of greed my friends.”- Boris Johnson. UK Prime Minister1Pippa Catterall. ‘‘Greed, my friends’: has Boris Johnson finally revealed his political philosophy?’ LSE British Politics and Policy, March 29, 2021. https://blogs.lse.ac.uk/politicsandpolicy/greed-my-friends/

“The only thing that makes us human is that we share when we don’t have to. It is that we understand that there is no natural morality or justice to life unless we actively enforce it through sharing with others. Anything else is apartheid.” – Nesrine Malik, columnist at The Guardian and panelist on BBC’s Dateline London 2Nesrine Malik. ‘When my family in Sudan caught Covid, the sheer injustice of fate sank in.’ The Guardian, March 14, 2021. https://www.theguardian.com/commentisfree/2021/mar/14/family-sudan-covid-injustice-hospital-resources-uk

“They all left with photographs of us, but few ever took the time to learn our names and hear our stories. Perhaps to them, it didn’t matter who we were.” – Jonea Agwa, Fundraising and Community Coordinator at Beautiful World Canada3Jonea Agwa. ‘The Ethics of Photography in Fundraising and International Development Work.’ Foundation for Philanthropy Canada, February 13, 2019. http://www.afpinclusivegiving.ca/story/ethics-photography-fundraising-international-development-work/

Vaccine Inequity

Over a year into the COVID-19 pandemic, high-income countries (HICS) are currently amid national vaccination campaigns, with widespread coverage forecasted to be completed by late 2021.4‘Most poor nations will take until 2024 to achieve mass Covid-19 Immunization.’ The Guardian, January 27, 2021. https://www.theguardian.com/society/2021/jan/27/most-poor-nations-will-take-until-2024-to-achieve-mass-covid-19-immunisation The long-awaited vaccines are available to at-risk populations, with immunization for the general population not far down the line.

However, for countries without a reliable and secure supply of vaccines, the pandemic is very much still underway. In January 2021, The Economist Intelligence Unit published a predictive model for global vaccine distribution, and the outlook for developing countries is bleak.5“More than 85 countries will not have widespread access to coronavirus vaccines before 2023.” The Economist Intelligence Unit, January 27, 2021. https://www.eiu.com/n/85-poor-countries-will-not-have-access-to-coronavirus-vaccines/ In Africa, only South Africa, Uganda, Ethiopia, Egypt, Morocco, Seychelles, and Gabon are predicted to have widespread coverage by the end of 2022, while every other African country has the dismal projection of “early 2023 onwards.”6Ibid. The gravity of this inequity can hardly be overstated. The effects of COVID-19 are far-reaching and deeply destabilizing. In Kenya, curfews and restrictions have been enforced through violent police raids.7‘Covid in Kenya: The woman who refuses to be defeated by the virus.’ BBC News, April 4, 2021. https://www.bbc.com/news/world-africa-56526627 Furthermore, African countries are experiencing a 40% increase in deaths since the start of 2021, as the new COVID-19 variant originating in South Africa continues to spread.8Eoin McSweeney and Nyasha Chingono. ‘Western countries have ‘hoarded’ Covid vaccines. Africa is being left behind as cases surge.’ CNN, February 5, 2021. https://www.cnn.com/2021/02/05/africa/vaccine-race-africa-intl/index.html Cases in Africa are projected to continue to worsen, with many African countries left to “rely upon collective bargaining and the goodwill of the international community.”9‘Africa faces major obstacles to accessing Covid vaccines.’ The Economist, January, 25, 2021. https://www.eiu.com/n/africa-faces-major-obstacles-to-accessing-covid-vaccines/

The inequity of vaccine access is stark. As of March 25, 2021, approximately 90% of the nearly 400 million vaccines thus far delivered went to people in upper and middle-income countries.10Selam Gebrekidan and Matt Apuzzo. ‘Rich Countries Signed Away a Chance to Vaccinate the World.’ The New York Times, March 25, 2021. https://www.nytimes.com/2021/03/21/world/vaccine-patents-us-eu.html Several HICS have pre-ordered enough doses to cover their populations twice.11Anna Rouw et al. ‘Global COVID-19 Vaccine Access: A Snapshot of Inequality.’ KFF, March 17, 2021. https://www.kff.org/policy-watch/global-covid-19-vaccine-access-snapshot-of-inequality/ Africa, meanwhile, accounted for only 2% of global doses.12Abdi Latif Dahir, Benjamin Mueller. ‘Some Nations Could Wait Years for Covid Shots. That’s Bad for Everyone.’ The New York Times, March 22, 2021. https://www.nytimes.com/2021/03/22/world/africa/africa-vaccine-inequality-covid.html Mutahi Kagwe, health minister of Kenya, was relieved to receive the country’s first million doses on March 2, but the doses were both a month late and only a quarter of what was expected.13Ibid. This is despite Kenya being also host to AstraZeneca clinical trials during vaccine development but was nonetheless not granted vaccine prioritization.14Ibid. Clinical trial ethics highlighted medical racism in vaccine development; this was exemplified by two doctors’ televised suggestion that COVID-19 vaccines be tested in Africa, prompting footballer Didier Drogba to state, “Africa isn’t a testing lab. I would like to vividly denounce these demeaning, false, and most of all deeply racist words.”15Rebecca Rosman. ‘Racism row as French doctors suggest virus vaccine test in Africa.’ Al Jazeera, April 4, 2020. https://www.aljazeera.com/news/2020/4/4/racism-row-as-french-doctors-suggest-virus-vaccine-test-in-africa

In order to achieve widespread vaccination, Kenya, like many other African countries, is relying on COVAX, a project coordinated by the World Health Organization (WHO), Gavi, the Vaccine Alliance, and the Coalition for Epidemic Preparedness Innovations.16Dr. Seth Berkley. ‘COVAX explained.’ Gavi.com https://www.gavi.org/vaccineswork/covax-explained, accessed 04/05/2021. COVAX, funded by nonprofit organizations and national governments, is an attempt to offset vaccine inequity by redistributing vaccine supply. However, it aims to vaccinate only up to 20% of low-income countries’ populations, which is well off the mark for vaccine efficacy. The project is currently $2 billion short of accomplishing even that.17Selam Gebrekidan, Matt Apuzzo. ‘Rich Countries Signed Away a Chance to Vaccinate the World.’ COVAX pools together different versions of the vaccine and, according to Abdi Latif Dahir and Benjamin Mueller, New York Times correspondents in East Africa and the United Kingdom, respectively, “built on the idea that many countries, including richer ones, would use it to purchase shots as a way of spreading their bets across vaccine makers. Instead, dozens of wealthy nations bought doses straight from pharmaceutical companies, elbowing the international effort out of the way and delaying shipments to the developing world.”18Abdi Latif Dahir, Benjamin Mueller. ‘Some Nations Could Wait Years.’ The World Bank is also providing vaccine aid in the form of loans – an action which may help bolster vaccination rates but which comes at the cost of compounding a separate issue: the global debt crisis.19Sharon Lerner. ‘World Faces Covid-19 “Vaccine Apartheid”’ The Intercept, December 31, 2020. https://theintercept.com/2020/12/31/covid-vaccine-countries-scarcity-access/

Despite the efforts of non-governmental organizations and advocacy groups, vaccine distribution is radically uneven. Many ascribe this inequality of access to the phenomenon of ‘vaccine nationalism,’ wherein governments overprioritize getting access to or hoarding vaccine supplies for their own populations.20Marco Hafner et al. ‘The global economic cost of COVID-19 vaccine nationalism.’ RAND Corporation, 2020. https://www.jstor.org/stable/resrep27756; Alex Roberts. ‘We Didn’t Make It for You: Vaccine Nationalism and the West’s Claim to the COVID-19 Jab.’ The Elephant, February 19. 2021. https://www.theelephant.info/features/2021/02/19/we-didnt-make-it-for-you-vaccine-nationalism-and-the-wests-claim-to-the-covid-19-jab/ The Economist, in the same article cited earlier, states that with regard to mass immunization, “production represents the main hurdle, as many developed countries have pre-ordered more doses than they need.”21The Economist, ‘More than 85 countries.’ Production certainly is the main hurdle, and vaccine hoarding by HICS is also clearly a problem, but it is not the fundamental issue. While the idea that countries act self-interestedly over the vaccine as a scarce resource is an important conversation, the question of whether and why this resource is scarce at all receives problematically little attention. This narrative framing serves the interests of the narrow few who profit the most from the pandemic, as the topic of vaccine nationalism presumes inherent resource scarcity. However, in the case of the global puzzle over how to distribute vaccines, scarcity is a policy choice.

Vaccine Inequity as Apartheid

On October 2, 2020, India and South Africa – supported by nearly 100 countries – submitted a waiver request to the World Trade Organization (WTO).22“Waiver from certain provisions of the TRIPS agreement for the prevention, containment and treatment of Covid-19,” World Trade Organization, October 2, 2020. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True The waiver would temporarily grant exceptions to certain limitations imposed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the legal statute that imposes and regulates intellectual property rights (IPR) across WTO member states. The text of the waiver states that “the rapid scaling up of manufacturing globally is an obvious crucial solution to address the timely availability and affordability of medical products to all countries in need.”23Ibid, pp.2 With COVID-19 continuing to mutate and grow ever-more deadly, the longer it exists, the more danger it poses even to countries with widespread vaccination. The global economy will continue to suffer with a schism of vaccine access between HICS and low to middle-income countries. Even to those with no interest in the well-being of the waiver countries themselves, the waiver is an obvious and efficient solution to a global supply crisis.

However, the United States, the United Kingdom, and the European Union, along with Norway, Switzerland, Japan, and Canada, all initially decided against permitting the waiver through the WTO, in a move that undermined distribution efficiency and hampered attempts at global solidarity in the face of the COVID-19 crisis.24Emma Farge. “Wealthy countries block COVID-19 drugs rights waiver at WTO – sources.” Reuters, November 20, 2020. https://www.reuters.com/article/uk-health-coronavirus-wto-idUKKBN28020X Earlier this year, the Archbishop of Cape Town, Thabo Cecil Makgoba spoke out: “to President Biden: You have an amazing opportunity to be a force for good in the world. So, we are appealing to you [to] look at those that are suffering and ensure that there is access, particularly to the global south, to this lifesaving vaccine.”25Sharon Lerner. ‘South African Archbishop denounces Coronavirus vaccine apartheid.’ The Intercept, February 12, 2021. https://theintercept.com/2021/02/12/covid-vaccine-south-africa-apartheid/ Archbishop Makgoba also reflected that “this crisis really reminds me of apartheid […] these vaccines that are available to the global north and the West and available by Moderna reminds me that we are saying, like apartheid, ‘Hey, you guys are not human enough. Wait a bit.’”26Ibid.

Quoted at the opening of this report is Sudanese-born, London-based journalist Nesrine Malik, who felt personally the “sheer injustice” of vaccine apartheid when his Sudanese family caught COVID-19.27Nesrine Malik. ‘When my family in Sudan caught Covid.’ His family was turned away from hospitals, but Malik adds that it would not have made a difference even if his family had the funds because so few resources are locally available. In response to the global complicity in this injustice, Malik describes the belief in resource scarcity as a “con to absolve us from helping others.”28Ibid. The question becomes, then, why is the myth of scarcity so widely held, and what can be done about it?

The IPR Regime: Manufactured Scarcity

After denying South Africa’s and India’s waiver requests, the U.S. Chamber of Commerce responded that “the pandemic provides evidence the global IP [(intellectual property)] system is working.”29‘U.S. Chamber Responds to India and South Africa’s Request for World Trade Organization to Ease Intellectual Property Rights.’ U.S. Chamber of Commerce, October 6, 2020. https://www.uschamber.com/press-release/us-chamber-responds-india-and-south-africa-s-request-world-trade-organization-ease In contrast, at the start of the pandemic, the WHO foresaw IPR as a barrier to public health and in early 2020 suggested a voluntary pool for patent rights that would enable widespread manufacturing of vaccines once developed. Albert Bourla, Chief Executive Officer at Pfizer, called the idea “nonsense,” and Pascal Soriot, Chief Executive Officer at AstraZeneca, claimed that “if you don’t protect IP, then essentially, there is no incentive for anybody to innovate.”30Ed Silverman, ‘Pharma leaders shoot down WHO voluntary pool for patent rights on Covid-19 products.’ STAT News, May 28, 2020. https://www.statnews.com/pharmalot/2020/05/28/who-voluntary-pool-patents-pfizer/ The WHO pool would not have seized patents, and pharmaceutical companies would still have collected royalties, so these responses were unwarranted and inaccurate, but they illustrate a broad motivation. The ultimate aim of pharmaceutical companies and interest groups is to establish themselves as an insurmountable inevitability as if the current active understanding of IPR marks the end of legal scholarship. But IPR was not discovered; it was invented. Any claims to philosophical or jurisprudential integrity are revealed to be fallacious by the plain truth that those who benefit the most from the modern IP regime are its authors.

IP as a concept is unique from other forms of property, as its transfer does not inherently lessen the assets of the original creator. IP is, therefore, a contested, open topic and, as such, has been politicized frequently. Through TRIPS, IPRs “construct a scarcity where none necessarily exists. Scarcity needs to be constructed because knowledge, unlike physical property, generally is not rivalrous,” as Christopher May and Susan K. SellChristopher May explained Susan K. Sell explained in Intellectual Property Rights: A Critical History.31Christopher May, Susan K. Sell. Intellectual Property Rights: A Critical History, Lynne Reinner Publishers, Inc., Boulder: 2006. In the lead-up to vaccine development, Alarmist headlines warned of foreign hackers and intellectual espionage. However, such an occurrence would neither lessen Pfizer’s ability to manufacture vaccines nor slow down vaccine distribution in the United States.32Hannah Kuchler, Aime Williams. ‘Vaccine makers say IP waiver could hand technology to China and Russia.’ Financial Times, April 25, 2021. https://www.ft.com/content/fa1e0d22-71f2-401f-9971-fa27313570ab In order for vaccine IP theft to be perceived as wrong, rhetoric around IPR must be linked with other societal values. Christopher May and Susan K. Sell identify three main branches of these justificatory attempts: association with what is deserved from labor; association between property and self; and the argument from efficiency.33Ibid, pp. 20-21 In the wake of COVID-19, pharmaceutical interest groups were quick to associate multi-billion-dollar profits with efficiency and ‘innovation,’ a term used so vaguely it may be considered an ideograph linked to whatever seems dire at the time. But as economists Giovanni Dosi and Joseph E. Stiglitz have explained:

there are neither strong theoretical reasons nor strong empirical evidence suggesting that modifying appropriability mechanisms for innovations in general – and appropriability by means of IPR in particular – has any clear, strong effect on the amount of resources that private, self-seeking agents devote to innovative search.34Giovanni Dosi, Joseph E. Stiglitz. ‘The Role of Intellectual Property Rights in the Development Process, with Some Lessons from Developed Countries: An Introduction.’ In Intellectual Property Rights: Legal and Economic Challenges for Development edited by Mario Cimoli et al., 2-53. Oxford Scholarship Online, 2014.

Though TRIPS was implemented fairly recently – 1995 – it has worked to depoliticize IP disputes by moving them from the political realm into an abstracted legal realm, effectively siphoning off debate.35Christopher May, Susan K. Sell. Intellectual Property Rights, pp. 162. IPR is not an abstract concept, but rather a political tool used to codify relational power imbalances. Before TRIPS, governments regularly used compulsory licensing to level relations between local manufacturers and the pharmaceutical industries.36Stephen Buranyi. “The world is desperate for more Covid vaccines – patents shouldn’t get in the way.” The Guardian, April 24, 2021. https://www.theguardian.com/commentisfree/2021/apr/24/covid-vaccines-patents-pharmaceutical-companies-secrecy Though Pfizer’s opposition to the TRIPS waiver proposal invokes the idea of global common-sense and universal legal thought, Pfizer’s own history betrays its appeal to abstract jurisprudence. In 1986, Edmund Pratt, former chairman of Pfizer, cofounded the Intellectual Property Committee (IPC), which lobbied extensively in favor of robust IP protections in the leadup to the General Agreement on Tariffs and Trade (GATT) talks, which resulted in the 1995 creation of the WTO.37Sarah Lazare. ‘Pfizer Helped Create the Global Patent Rules. Now it’s Using Them to Undercut Access to the Covid Vaccine.’ In These Times, December 17, 2020. https://inthesetimes.com/article/pfizer-covid-vaccine-world-trade-oganization-intellectual-property-patent-access-medicines

Additionally, contrary to Prime Minister Boris Johnson’s boast that “the reason we have the vaccine success is because of capitalism, because of greed my friends,” the development of covid vaccines was not the result of free market capitalism. In theory, the patent system requires risk with the potential for reward. But pharmaceutical companies worked with governments and extensive government funding to develop these vaccines, thus shielding them from serious risk.38Ed Silverman, ‘Pharma leaders.’ In the United States alone, six companies received over $12 billion in public support and benefitted from prior publicly-funded research.39Javati Ghosh et al. ‘The Pandemic and the Economic Crisis: A Global Agenda for Urgent Action.’ Institute for Economic Thinking, March 10, 2021. https://www.ineteconomics.org/uploads/papers/INET-Commission-Interim-Report.pdf In the United Kingdom, around $125 billion dollars of public money went into developing COVID-19 treatments.40‘Covid: Rich states ‘block’ vaccine plans for developing nations.’ BBC News, March 19, 2021. https://www.bbc.com/news/world-56465395 Additionally, as Nick Dearden, director of Justice Now, argues, the “tens of thousands of trial volunteers who risked their health by putting themselves forward, not out of greed, but out of a desire to end this pandemic” were not motivated by or rewarded with patent-generated profit.41Nick Dearden, ‘Greed is the problem.’ Al Jazeera, March 24 2021.

The pharmaceutical industry leverages immense funds and influence to ensure political support for the privatization of what would otherwise be a public good. PHrMA, a pharmaceutical lobby group, unsurprisingly opposed the TRIPS waiver proposal. Last year, PHrMA spent over $350 million on lobbying and political donations.42Sam Fraser. ‘Vaccine vote was early test for Biden’s new ‘global leadership’ and he failed.’ Responsible Statecraft, Quincy Institute March 17, 2021. https://responsiblestatecraft.org/2021/03/17/vaccine-vote-was-early-test-for-bidens-new-global-leadership-and-he-failed/ In the same year, Pfizer spent almost $10.9 million on lobbying 43 https://www.opensecrets.org/industries/lobbying.php?ind=H4300 In addition to money, transnational pharmaceutical corporations’ largest tool is rhetoric. TRIPS is now “a powerful instrument to construct a metaphorical link between property in knowledge and the legal mechanisms that have been widely developed to protect material property rights.”44Christopher May, Susan K Sell. Intellectual Property Rights, pp.18 As nonprofits and advocacy groups show support for the IP waiver in the first quarter of 2021, the pharmaceutical industry has mobilized over 100 lobbyists in Washington, D.C. to counter the movement.45Lee Fang. “Pharmaceutical industry dispatches army of lobbyists to block generic Covid-19 vaccines.” The Intercept, April 23, 2021. https://theintercept.com/2021/04/23/covid-vaccine-ip-waiver-lobbying/?utm_medium=social&utm_source=twitter&utm_campaign=theintercept This extensive political project undermines claims to good-faith uncertainty that an IP waiver will solve the scarcity problem. It is important to be clear: the project to codify IP as the global system for public health emergencies is not the result of centuries of legal scholarship or a broad jurisprudential consensus. It results from decades of political maneuvering, and it comes at a lethal price.

The IPR Regime: Structural Racism

The severe imbalance of access is clearly not arbitrary. The World Bank and the International Monetary Fund (IMF), institutions that implemented notorious Structural Adjustment Programs (SAPs), present similar racial inequalities. Voting power in the IMF is determined in accordance with GDP (Gross Domestic Product) and market openness, ultimately skewed such that a British citizen’s vote is effectively worth 23 times more than that of a Nigerian.46Jason Hickel. ‘Apartheid in the World Bank and the IMF.’ Al Jazeera, November 26, 2020. https://www.aljazeera.com/opinions/2020/11/26/it-is-time-to-decolonise-the-world-bank-and-the-imf This form of structural racism is directly linked to the current vaccine inequity; World Bank-imposed SAPs forced spending cuts of up to 50% from African universities, suggesting instead that higher education institutions focus on vocational training.47Dennis Brutus. ‘Africa 2000.’ In African Visions, edited by Cheryl B. Mwaria, Silvia Federici, and Joseph McLaren. Westport, Connecticut: Praeger Publishers, 2000. Silvia Federici characterizes this kind of policy as a premeditated division, “with the First World aiming again to play the ‘mind,’ and forcing the Third World back into its colonial role as the ‘body’ or ‘hand’ of the empire.”48C. George Caffentzis. ‘The International Intellectual Property Regime and the Enclosure of African Knowledge.’ In African Visions, edited by Cheryl B. Mwaria, Silvia Federici, and Joseph McLaren. Westport, Connecticut: Praeger Publishers, 2000. This division is part and parcel to the IPR regime, as it enabled the enclosure and extractive privatization of African knowledge, securing, as Federici states, “intellectual property [as] now the main surplus sector in the U.S. balance of trade.”49Ibid, pp. 9

An IP regime that works for some countries or some sectors does not necessarily work for others.50Giovanni Dosi, Joseph E. Stiglitz, ‘The Role of Intellectual Property.’ pp. 5. TRIPS in particular, Christopher May and Susan K Sell in Intellectual Property Rights, was “substantially drafted by lawyers and economists representing a group of twelve multinational US corporations, [and] is an overwhelmingly Anglo-Saxon legal discourse, presenting a specific view of the justification of IPRs and the efficiency benefits from making knowledge and information property.”51May, Sell, Intellectual Property Rights, pp. 19 That the asymmetry of IP discourse is racist is proven by what is considered IP and what is not. For example May and Sell argue, “semiconductor chips are identified as intellectual property whereas indigenous folklore is not,” demonstrating that “political power shapes the agenda of IPRs, not neutral and technical assessments.”52Ibid. In The Color of Creatorship: Intellectual Property, Race, and the Making of Americans, Anjali Vats recognizes IP as a “‘racial project’ that reproduces particular racial orders, in which people of color are coded as lacking the capacity to create.”53Anjali Vats. The Color of Creatorship: Intellectual Property, Race, and the Making of Americans. Stanford University Press, 2020. While Vats focuses on IP in American domestic law, her framework also applies globally. TRIPS enforcement leaves no space for African countries to generate their own copyright frameworks and legal systems. The African Charter on Human and Peoples’ Rights implies a prioritization of collective cultural rights over individualistic material interests, which indicates a very different and likely more humane approach to public health that is currently being silenced by extensive WTO enforcement.54Christiaan De Beukelaer, Martin Fredriksson. ‘The political economy of intellectual property rights: the paradox of Article 27 exemplified in Ghana.’ Review of African Political Economy, 46:161 (2019), pp. 474. https://www.tandfonline.com/doi/full/10.1080/03056244.2018.1500358 This IPR regime, as explained by Christiaan De Beukelaer and Martin Fredriksson, “thus protects the methods of appropriation used by Western companies while it excludes traditional forms of ownership applied by local and indigenous groups in ‘developing’ countries.”55Ibid, pp. 472. The existence of the IP regime reflects racial inequalities, which its outcomes then reproduce. The profiteering during this pandemic was made possible by a historical colonial capitalist project, described by Ngũgĩ wa Thiong’o as a “conquest of nature.”56Ngũgĩ wa Thiong’o. Decolonising the Mind: The Politics of Language in African Literature. Boydell & Brewer, Limited. 1986, pp. 66. In his 1986 book, Decolonizing the Mind, Thiong’o describes how colonial capitalism, “through its selective prescription of medical care, at least in the colonies, ensured a disease-ridden population who now lacked help from the herbalists and psychiatrists whose practices had been condemned as devilry.”57Ibid.

The commodification of medicine has caused needless death in Africa for years. During the HIV/AIDS crisis, millions of people were denied access to treatment because of IP restrictions.58Nick Dearden. ‘System change, not charity, will end the vaccine apartheid.’ Al Jazeera, February 26, 2021. https://www.aljazeera.com/opinions/2021/2/26/system-change-not-charity-will-end-the-vaccine-apartheid The drugs “remain prohibitively expensive” for many, and often are inaccessible due to SAP-weakened health infrastructures.59May, Sell, Intellectual Property Rights, pp.1 According to a 2005 WHO study, 2 million deaths result from inadequate access to vaccines each year.60https://www.who.int/whr/2005/en/ In this instance, distribution forecasts make it abundantly clear that in the next few years, “those who suffer will disproportionately be Black.”61Sarah Lazare. “Biden Must Reject Trump’s “Vaccine Apartheid” Policy at the WTO” In These Times, January 12, 2021. https://inthesetimes.com/article/world-trade-organization-trump-biden-vaccine-apartheid-covid-intellectual-property-patent Rejecting racism is not limited to changing mindsets, biases, and interpersonal behaviors. When policies are enacted through a systemically racist legal infrastructure, any decision to continue their enactment is a choice against justice. 

The White Savior Industrial Complex: Do they know it’s covid?

The IP regime not only reflects historic global white supremacy but also promulgates it. Refusing the TRIPS waiver in tandem with promises to donate or sell surplus supply cements the relationship between HICS and many African countries as paternalistic and neocolonial. Defenders of the IP regime have also argued that “a preferable approach would be to build more vaccine-manufacturing in the United States and then give those vaccines to countries in need,” so as to protect national interests in the long-run.62Josh Rogin. “Opinion: The wrong way to fight vaccine nationalism.” The Washington Post, April 8, 2021. https://www.washingtonpost.com/opinions/global-opinions/the-wrong-way-to-fight-vaccine-nationalism/2021/04/08/9a65e15e-98a8-11eb-962b-78c1d8228819_story.html Some similar suggestions to donate surplus vaccine supply approach the lives and livelihoods of populations in the Global South as an opportunity for soft-power diplomacy and competition.63Thomas J. Bollyky. ‘Democracies Keep Vaccines for Themselves.’ The Atlantic, March 27, 2021. https://www.theatlantic.com/ideas/archive/2021/03/rich-countries-give-money-keep-vaccines-themselves/618437/ While surplus reallocation may be a viable stop-gap solution, it perpetuates the paternalistic notion that the Global South must rely on aid from HICS to develop or even function. Pledges to donate surplus supply, then, seem “like the worst form of charity – handing over some old clothes only when you are sure you will never wear them again. But in fact, it is not even charity,” writes Nick Dearden, as countries like the United Kingdom may actually charge for surplus vaccine supply.64Nick Dearden, ‘Greed is the problem.’

In The Challenge for Africa, Wangari Maathai describes how nonprofit fundraising images have shaped a certain global perception of Africa. She cites the fundraiser song, ‘Do they know it’s Christmas?’ inspired by 1984 BBC reporting on the Ethiopian famine as disturbing, as it, alongside images like an emaciated girl on a UNICEF magazine, “risk[s] stereotyping all countries south of the Sahara as places of famine, death, and hopelessness.”65Wangari Maathai. The Challenge for Africa, Pantheon Books: New York, 2009, pp. 78. Though these projects are often used to generate some good, they are dehumanizing and destructive. Angela Bruce-Raeburn, regional advocacy director for Africa at the Global Health Advocacy Incubator, similarly posits that:

inherent in the very concept of aid is race and racism because only in this system can majority white societies with ample resources determine what poor black and brown people need, how much they need, set up the parameters for delivery of what they need, and of course create an elaborate mechanism for monitoring how well they have managed the donated funds to meet their needs.66Angela Bruce-Raeburn. ‘Opinion: International development as a race problem.’ Devex, May 17, 2019. https://www.devex.com/news/opinion-international-development-has-a-race-problem-94840

This is the paternalistic control that is ensured and codified by waiver refusal, laundered through questionable jurisprudence and silenced by the pernicious aid narrative described by Maathai. Too often, photographs of African people, frequently African children, are circulated on websites, magazines, and newspapers with little regard for the rights and dignity of those photographed. Nonprofit worker Jonea Agwa, reflecting on her childhood in Kenya, describes the effect of photographers who rarely bothered to speak with her and her schoolmates: “Months after they left, I thought about them. I wondered what they did with our photos and what stories they told -those who knew nothing about us and the lives we lived.”67Jonea Agwa, ‘Ethics of Photography.’

To be clear, this criticism is not intended to decry all the work of nonprofits that step in where governments do not. Aid projects, however, must be carried out with the recognition that poverty is not a naturally occurring phenomenon, but is the result of policies that rig economies.68Jason Hickel. ‘The death of international development.’ Al Jazeera, November 20, 2014. https://www.aljazeera.com/opinions/2014/11/20/the-death-of-international-development An anonymous international aid worker with senior level experience at the United Nations and NGOs argued that the aid sector must work to confront the “insidious racism by white leadership” reflected in white male organizational leadership and devaluation of local hires.69The aid sector must do more to tackle its white supremacy problem.’ The Guardian, June 15, 2020. https://www.theguardian.com/global-development/2020/jun/15/the-aid-sector-must-do-more-to-tackle-its-white-supremacy-problem; Kathyrn Nwajiaku-Dahou, Carmen Leon-Himmelstine. ‘How to confront race and racism in international development.’ Overseas Development Institute, October 5, 2020. Furthermore, legal and personal dignity categorically must be prioritized. Exploitive photography and voluntourism echo the previously-quoted words of Archbishop Makgoba – “you guys are not human enough” – for consent, for mutual conversation, for aid as a matter of justice rather charity.70Sharon Lerner. ‘South African Archbishop denounces Coronavirus vaccine apartheid.’

The current vaccine inequity is emblematic of the structural injustice that creates space for paternalistic white saviorism upheld by politicians and corporations who self-congratulate for donating surplus from where surplus never should have existed.

This form of the ‘White Savior Industrial Complex’, articulated by Nigerian-American author Teju Cole, “supports brutal policies in the morning, founds charities in the afternoon, and receives awards in the evening […] The White Savior Industrial Complex is not about justice. It is about having a big emotional experience that validates privilege.”71Teju Cole. ‘The White-Savior Industrial Complex.’ The Atlantic, March 21, 2012. https://www.theatlantic.com/international/archive/2012/03/the-white-savior-industrial-complex/254843/ That African lives are systematically delegitimized through racist legal frameworks while also being dehumanized in exploitive and misleading representations are not two separate phenomena; together they reflect and construct Western approaches to Africa as a forum for experimentation, savior sentimentality, political contest, and, above all, profit.

Conclusion

Adding to the COVID-19 tragedies that will unfold in the next few years is the almost unbelievable fact that they are avoidable. As this report has detailed, global vaccine inequality is predicated on racist legacies of colonialism and exploitation that are tended to and upheld by pernicious corporate influence. Thankfully, it is yet not too late to reverse the waiver decision, and an increasing number of health experts and advocacy groups are calling out governments that bowed to corporate pressure from the pharmaceutical industry. These groups include Médecin Sans Frontières, Public Citizen, Human Rights Watch, and Oxfam.72Nima Shirazi, Adam Johnson. “News Brief: Big Pharma, Bill Gates Spin Against Generic Vaccines for Global South as Biden a No-Show.” Citations Needed, April 10, 2021. https://citationsneeded.medium.com/news-brief-big-pharma-bill-gates-spin-against-generic-vaccines-for-global-south-as-biden-a-7664a13e8ee2 A few select members of the United States’ Congress have also made an effort to encourage President Biden to reconsider the WTO decision.73Sarah Lazare. “Biden Must Reject”

Further, in July of 2020, then-candidate Joe Biden agreed that “the only humane thing in the world” is to ensure that patents do not obstruct vaccine access.74Ibid. Over two million signatures represent U.S. domestic support for lifting IP restrictions in support of the People’s Vaccine project, an effort to impress upon President Biden the importance of vaccine equity and the need for an IP waiver.75“Covid-19 vaccine access: 2 million people sign petition urging Biden to back patent waiver.” The Daily Star, April 24, 2021. https://www.thedailystar.net/coronavirus-deadly-new-threat/news/covid-19-vaccine-access-2-million-people-sign-petition-urging-biden-back-patent-waiver-2082897 On May 6, 2021, the Biden Administration announced support for the IP waiver.76Covid: US backs waiver on vaccine patents to boost supply. (2021). BBC News. [online] 6 May. Available at: https://www.bbc.co.uk/news/world-us-canada-57004302 [Accessed 25 May 2021]. However, the World Bank remains opposed to the waiver, and thus far the Biden administration has focused on global donations rather than legal action.77David Lawder. ‘World Bank opposes vaccine intellectual property waiver as WTO talks resume.’ Reuters, June 8, 2021. https://www.reuters.com/business/healthcare-pharmaceuticals/world-bank-chief-says-does-not-support-vaccine-intellectual-property-waiver-wto-2021-06-08/

Rhetoric defensive of the IP regime proactively obscures culpability for vaccine apartheid, with headlines that focus on distribution ineptitude within African countries and the need to protect innovation.78Michael Rosenblatt, “The downside of suspending intellectual property rights on COVID-19 vaccines.” The Boston Globe, April 23, 2021. https://www.bostonglobe.com/2021/04/23/opinion/downside-suspending-intellectual-property-rights-covid-19-vaccines/ Consequently, advocacy groups should be clear to note that the question of vaccine access is not only about public health efficiency but also a matter of racial justice. The relational history of exploitation and economic subjugation between WTO power-countries and many nations of Africa generates a moral responsibility to correct racist and oppressive history. It is additionally significant to stress that the locus of this injustice is not in vaccine distribution per se, but rather in the structures that predetermine the blueprints for distribution. Efforts like COVAX are important tools to fill in supply gaps, but as scholars Parsa Erfani, Eugene Richardson, and Jason Hickel explain, COVAX “does not address the underlying structural problems that give rise to vaccine apartheid.”79Parsa Erfani et al. ‘A call for global vaccine justice.’ The solution ought not to be just a reallocation of surplus to make up for deficit; instead, the optimal approach would be to alter the policies that are actively creating the deficit. It is, therefore, of paramount importance that the interest groups who attempt to secure TRIPS as the ‘end’ of legal discourse do not succeed in doing so. Further denial of the IP waiver risks cementing not only TRIPS as a seemingly inescapable global framework, but also global racial inequities predicated on paternalistic racism. Short of governmental action on the part of HICS, lower-level operations should denounce and resist TRIPS as the final and quintessential version of IPR and should outline vaccine misdistribution as racial apartheid on the global scale. There is finally a light at the end of this tunnel, and it should not be systematically obscured from any part of the world.

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