International Economic Law in a Time of Global Perils: Omicron and other COVID variants, Climate Change, Human Rights, and Development

The World Trade Organization decided to indefinitely postpone its 12th Ministerial Conference, originally scheduled for this week (30 November to 3 December), due to travel constraints for many delegations coming from countries that had already imposed travel bans and other restrictions due to the new Omicron variant.  The 12th Ministerial was slated to take up a range of agenda items, but what was supposed to be most politically sensitive is the ongoing impasse on India and South Africa’s proposal (currently supported by over 100 countries) for a TRIPS waiver for COVID vaccines and other related medical goods, therapeutics, and equipment to respond to the pandemic.  United States President Biden has already openly supported the TRIPS waiver since May 2021, but to date the European Union remains opposed to the proposal. Switzerland recently announced it is open to compromise, but the indefinitely postponed 12th WTO Ministerial enables more time for the impasse on the TRIPS waiver to continue. As of this writing, the World Health Organization reports over 259 million COVID cases, over 5.8 million deaths from COVID, and 7.7 billion doses (first, second, or booster shots). The New York Times reports that 55.3% of the world’s population has received at least one vaccine shot, but the least inoculated regions in the world are also the least developed countries of the world in Africa, South Asia, Southeast Asia, Oceania, and Latin America.   

I and many others (see among others here and here,for example) wrote early on about equitable COVID vaccine and related health goods access as a human right.  Others have written many sharp refutations of the lack of legal and policy basis for the EU’s continued opposition to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver (see Human Rights Watch’s analysis here, and Medicins Sans Frontiere’s analysis here).  Even an appeal to self-interest could readily address the EU’s opposition to the TRIPS waiver, as stated by an American infectious disease expert: “From a U.S. perspective, getting everyone around the world vaccinated is not an altruistic thing. It protects us here in the U.S. The side effect is that it helps everyone else in the world.”

In this post, I make a more topographic examination of international economic law’s challenges in the face of Omicron and other present or future COVID variants, and question whether international economic law’s largely private law-driven raison d’etre of safeguarding property rights and investment returns, nondiscriminatory market access, financial stability and debt sustainability, retain primacy as policy values and legal priorities in a time of simultaneous and protracted global perils.  I take the position that none of these supposed overriding goals of the modern international economic system can be achieved or protected, so long as international economic law persists in either silence (such as that practiced for many years of inaction by Global North countries on continuing public sector financing of fossil fuel use, before around 20 countries led by the United States made the pledge themselves at COP26), indefinite delay (as in the 12th WTO Ministerial or the failed Doha Development Round) or a sharp separation (as seen in the resistance to a TRIPS waiver) with interacting values, norms, and constraints on State action under human rights law, environmental and climate change law, and development law.  The argument I make here is the same one I have made for well over a decade: international economic decision-making cannot afford to ignore its distributional consequences and externalized impacts on the lived realities of human rights deprivations in our societies and populations.  It is precisely because of the latter that the process of international economic decision-making has to include more voices from the most vulnerable.

International Economic Law’s Silence: Brinksmanship in Global Economic Decision-Making

For many years, neither international trade negotiations nor climate change negotiations ever confronted the issue of managing or regulating fossil fuel emissions or subsidies for fossil fuel producers (and neither did they significantly engage the global energy sector), due to the difficulty of achieving a desired global consensus.  It was not until the 2009 Pittsburgh Summit that OECD countries committed to phase out “inefficient fossil fuel subsidies”.  The challenges of achieving consensus made it difficult to operationalize this commitment in the years that followed (whether under global trade negotiations or under climate change negotiations at every session of the Conference of Parties to the UN Framework Convention on Climate Change), even if there was repeated affirmation of the 2009 commitment.  

The high cost of the ensuing global regulatory silence for many years – on issues that significantly implicate both private property interests and public goods protection – now haunts us at 2021.  Incipient actions at COP 26 in Glasgow on cutting public sector financing of fossil fuels might not be enough to reach desired climate targets under the 2015 Paris Agreement.  While the Organization of Petroleum Exporting States (OPEC) finally expressed its willingness to tackle climate change issues, this willingness comes at a much more critical point when 86% of today’s emissions now come from the fossil fuel sector.  Reaching net zero carbon neutrality through global negotiations is more elusive now than in 2009, now that we are a situation of brinkmanship but still without full transparency on all countries and private sectors’ respective climate actions.  What kind of agreement, at this point, is even feasible to get us all to the “just transition” of all our economies to carbon neutrality?  Which voices are part of the discussion on defining the “just transition” at this point, given the developing world’s continued energy dependence with less resources for transitioning into leapfrogging climate neutral technologies, the Global North’s dominant production and ownership of such technologies, and the Global North’s lagging efforts at climate financing commitments under the Paris Agreement?  Under international economic law and its multilateral institutions, are the most vulnerable and least climate-culpable (such as small low lying island States) even heard by those who create and shape multilateral rules in global economic institutions?

International Economic Law and Indefinite Delay: The Cost of Inaction

The indefinite postponement of the 12th Ministerial Conference of the WTO – coming at a time when so few of the world’s developing and least developed economies are able to cope with the pandemic – illustrates the heightened challenges of multilateral negotiations in a time of global emergency.  Ironically, multilateral negotiations on the global trading system have never been more crucial than during this global emergency’s demonstrated supply chain problems, world trade slowdown and COVID gridlocks to recovery for many economies still under various restrictions and lockdowns, as well as continuing challenges for most of the developing world to access COVID vaccines and related medical goods at affordable, transparent, and equitable prices.  The cost of multilateral inaction is high, with the poorest countries in the world estimated to have access to full COVID vaccines only at the earliest by 2023.  Given the rapid spread and evolution of COVID variants, this delay will be a recurring cost for the global economic system, where most of the developing world is not fully vaccinated (let alone having booster shots).  The heavily infectious Omicron variant was first reported in South Africa – where only less than a quarter of its around 59.3 Million population has had at least one vaccine shot.  The WTO’s official list of measures affecting trade in goods will just keep expanding with the continued rapid circulation of COVID variants.  Multilateral inaction and indefinite delay in global economic decision-making is a collective paralysis that none of us can afford.

International Economic Law and Sharp Separation from Interacting Human Rights Norms

Finally, at a time when the EU continues to oppose the TRIPS waiver, one is minded to ask how its Members seek to fulfill their respective treaty obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and related human rights and environmental treaties.  While the EU has put forward a “strong multilateral response” as its counter-proposal and alternative to a TRIPS waiver, the EU counter-proposal, as Medecins Sans Frontiers points out, “only applies to patent barriers; it does not address any other intellectual property barriers such as rights to use confidential information including trade secrets, regulatory data, and biological materials.  The EU proposal also only covers vaccines and treatments- there’s no mention of other vital medical equipment that countries need to tackle the pandemic, such as tests, tools and raw materials…[and is] too dependent on the voluntary actions of pharmaceutical companies.”  The EU’s emphasis on compulsory licensing, according to Human Rights Watch, “is burdensome and time-consuming because it must be applied on a product-by-product and country-by-country basis, and there are often significant regulatory obstacles to overcome. The Doha Declaration only addresses one form of IP: patents. The TRIPS waiver proposal, in contrast, would cover not just patents but other forms of IP, too.” (See MSF’s comprehensive analysis of the EU position on compulsory licensing here.)

The EU’s perplexing resistance to applying international human rights law to evaluate its own continuing opposition to the TRIPS waiver is a clear example of how States can readily separate international economic law from interacting human rights norms.  Ironically, the EU has not hesitated to proudly wave the human rights banner through its EU Global Human Rights Sanctions Regime, the EU Climate Law, or the EU General Data Protection Regulation.  Additionally, the centrality of human rights to the European Union is itself embedded in its own constitutive instruments.  Article 1(a) of the Lisbon Treaty emphasizes that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.  These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between men and women prevail.”  Considering the heavy United States Government and United Kingdom (for Oxford/AstraZeneca) funding that led to the production of many of the COVID vaccines (Oxford/AstraZeneca at 97% public funding; Moderna at about $6 Billion of US taxpayer funds; see other reports here and here), it is even more baffling that the EU is standing against the proposed TRIPS waiver.  While the EU Economy Commissioner protested against any description of the EU as a “protectionist or vaccine nationalist bloc“, neither has the EU defended its resistance to the TRIPS waiver from the EU values of respect for human dignity, human rights, equality, and solidarity.  The ongoing rapid spread of Omicron in Europe from African countries only serves to remind the EU of what is truly at stake if it does not observe its own values of respect for human dignity, human rights, equality, and solidarity in these times of global peril.

Conclusion

Protracted global crises such as climate change and COVID provide the litmus test for the salience of the international economic law’s primary (if not exclusive) emphasis on property rights protection, nondiscriminatory market access, protection of foreign investment returns, and financial stability.  One does have to ask whether any of the latter are ends unto themselves, or are simply means to achieve humanity’s idea of a good life.  The overemphasis on these traditional pillars of international economic law – forgetting the ends of human flourishing, beyond the objective of property protection in and of itself – is what has caused so much disenchantment with the current multilateral economic system.  It is hard to see how the continuing duty to cooperate under international law could be achieved, so long as there is a hard divide between those who think the global economic system is a man-made means to help realize human development (and, in turn, human dignity for all especially the most vulnerable), and those who think that the global economic system (and its international economic law framework) are the ultimate ends in themselves and must be kept immutable at all costs.  It is this implicit clash of values that is the tipping point for international economic law in a time of global perils.