Global Health Jurisprudence: COVID-19 Pandemic and Pharmaceutical Patents
| DOI | http://doi.org/10.1177/23220058221084031 |
| Published date | 01 July 2022 |
| Date | 01 July 2022 |
| Subject Matter | Articles |
Article
Global Health Jurisprudence:
COVID-19 Pandemic and
Pharmaceutical Patents
Jagdish Wamanrao Khobragade1
Abstract
The onslaught of the COVID-19 pandemic has claimed millions of lives across the globe, and since
its emergence, it has brought to the fore the urgency of addressing public health issues from a global
perspective. Notwithstanding the calls for collective action and ambitious global initiatives launched
under the aegis of the World Health Organization (WHO), the search for effective new drugs and
vaccines and their equitable and affordable access remain captive to the contentious issue of balancing
the commercial (intellectual property) rights of the medicine manufacturers and the basic right to
health of the vast majority of humankind. There has been a divide among the governments of the
developed and developing countries as they jockey to seek trade concessions and intellectual property
(IP) waivers in multilateral Trade-Related Aspects of Intellectual Property Rights (TRIPS) forums to
ensure affordable treatment for their population. Neither the multilateral trade talks nor the parallel
global initiatives, especially the ambitious COVID-19 Technology Access Pool (C-TAP) project, has
made the promised progress, thus showing that the ground reality is a far cry from the appealing
ideas of global solidarity. The pandemic continues to take its toll; calls for a global response to global
challenges are getting louder and shriller by the day. The present study attempts to trace the history of
collective action in the realm of public health from the social and commercial perspectives. It is to seek
a globalized approach to global health issues within the framework of distributive justice. It is observed
that the present global framework found a sound economic sense with little scope for global health
jurisprudence.
Introduction
Coronavirus disease 2019 (COVID-19) has affected the world at large, and the World Health Organization
(WHO) declared it as a pandemic on 11 March 2020. In the face of 181.9 million conrmed cases and
3.95 million deaths worldwide and still counting,2 many multinational pharmaceutical companies are in
1 Department of Law, Maharashtra National Law University, Nagpur, Maharashtra, India.
2 World Health Organization, WHO Coronavirus (COVID-19) Dashboard. World Health Organization, 1 July 2021, available at
https://covid19.who.int/.
Asian Journal of Legal Education
9(2) 234–252, 2022
© 2022 The West Bengal National
University of Juridical Sciences
Reprints and permissions:
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DOI: 10.1177/23220058221084031
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Corresponding author:
Jagdish Wamanrao Khobragade, Department of Law, Maharashtra National Law University, Nagpur, Maharashtra
441108, India.
E-mail: jkhobragade@gmail.com
Khobragade 235
the race to invent vaccines, and some of them have invented vaccines such as Pzer, COVAXIN and
Covishield. These pharmaceutical companies will have the monopoly and exclusive rights over these
vaccines, according to their domestic patent laws. Simultaneously, the global call for collective efforts
has emerged to tackle the present pandemic. Previous experience of a pandemic like Human
Immunodeciency Virus/Autoimmune Deciency Syndrome (HIV/AIDS) suggests difculty in access
to medicines, and it raises concern over patent laws and access to medicines. The admired and modern
convention regarding intellectual proptery (IP) law is the agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). It was further reintroduced in terms of access to medicine by the
World Trade Organization (WTO) in the Fourth Ministerial Conference at Doha Declaration on TRIPS
and Public Health in 2001. Therefore, to resolve these conicts, global distributive justice and
international alliances such as the Global Alliance for Vaccines and Immunisation (GAVI alliance),
COVID-19 Vaccines Gloal Access (COVAX), The Global Fund to Fight AIDS, Tuberculosis and Malaria
(GFTAM), COVID-19 Technology Access Pool (C-TAP) and Quadrilateral Security Dialogue (QUAD)
have been formed as mechanisms to deal with the present pandemic. There is an interrelationship
between the existing IP regime and access to medicines during the COVID-19 pandemic. The global
health jurisprudence and global justice can be a call for resolving this present pandemic. In this study
developing countries such as India, Thailand and Nigeria and developed countries like Canada and the
USA are randomly chosen because their historical background can be traced to understand the pandemic,
compulsory licenses, pharmaceutical patents and access to medicines.
Contemporary Issues in Access to Healthcare
The existing arrangement relating to access to healthcare advocate privilege of the rich and the plight of
the poor, which can be found from the Tracking Universal Health Coverage: 2017 Global Monitoring
Report of both World Bank and WHO. As per the aforementioned report of 2017, 800 million people
spend at least 10% of their household budgets on health expenditure for their family members. It is
mentioned in the report that a large number of households are being pushed into poverty because they
have to pay for healthcare out of their other budgets. About this report, Dr. Tedros Adhanom Ghebreyesus,
Director-General of WHO said that ‘it is completely unacceptable that half the world still lacks coverage
for the most essential health services’.3 Furthermore, to substantiate it in the COVID-19 pandemic during
the second wave, the number of cases increased and the price of each vial has not been available to the
common people due to its high demand and certain medicines were not affordable to the poor people.
Although, during the pandemic, the price of the each vial of remdesivir in India has been cut by the
pharmaceutical companies to `3,400 from as high as `5,400, it was being sold in the black market for
prices anywhere between `15,000 and `60,000, due to the failure of the state arrangements.4 It was
difcult for the poor people to have access to medicines and get COVID-19 treatment at costly hospitals.
In 2019, the total global health spending reached US$88 trillion and was US$1,132 per person, with a
wide variation in spending across geographical regions and country income groups, and the spending on
health is expected to rise to US$1,519 (US$1,448–1,591) per person in 2050.5 In India, many cases were
3 WHO and The World Bank, Tracking Universal Health Coverage: 2017 Global Monitoring Report, WHO and The World Bank,
2017, available at https://apps.who.int/iris/bitstream/handle/10665/259817/9789241513555-eng.pdf.
4 Id.
5 https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)01258-7/fulltext
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