Taking ‘Third World’ Lives Seriously: Decolonising Global Health Governance to Promote Health Capabilities in the Global South

Authors

Uchechukwu Ngwaba, Lincoln Alexander School of Law, Toronto Metropolitan University

Document Type

Article

English Abstract

Behind glib claims of universalism in global health, evidenced by the push for universal health coverage in the Sustainable Development Goals 2030 (SDGs), lies an uncomfortable truth about the unequal, uneven and broken system of the existing framework for global health governance. A situation made more evident by the behaviour of powerful states of the Global North at the height of the Covid-19 pandemic through the hoarding of vaccines, refusal to accommodate waivers to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime to allow cheaper versions of the Covid-19 vaccines to be manufactured for the Global South and the preference for securitisation over solidarity in the response to the pandemic. The rhetoric of “vaccine apartheid” was deployed by WHO Director General to describe this lack of solidarity by Global North States (particularly in the context of vaccines procurement). However, this paper argues contrarily that the colonial foundations of the current framework for global health governance, which does not take Third World lives as seriously as those of citizens of the West, has functioned exactly as designed. This has led to the “othering” of Third World peoples, generating pathologies of suffering and vulnerabilities in their encounter with global health governance frameworks. Informed by critical Third World Approaches to International Law (TWAIL) this paper makes the case for decolonising existing frameworks for global health governance to promote health capabilities in the Global South.

Citation Information

Ngwaba, Uchechukwu. "Taking ‘Third World’ Lives Seriously: Decolonising Global Health Governance to Promote Health Capabilities in the Global South." The Transnational Human Rights Review 10. (2023) :
DOI: https://doi.org/10.60082/2563-4631.1104
https://digitalcommons.osgoode.yorku.ca/thr/vol10/iss1/2

References

1 Perhaps it is functioning as it was originally intended to function - a point I aim to interrogate deeply in this paper.

2 The categorisation "Global South" (or in earlier terminology, the Third World, or geographically Asia, Africa, Latin America and the Pacific) is rooted in international development studies. On the basis of a North-South binary, inequalities between 'developed' and 'developing' countries have been given prominence. See Willy Brandt, North-South: A Programme for Survival - The Report of the Independent Commission on International Development Issues Under the Chairmanship of Willy Brandt (Cambridge, MA: MIT Press, 1980); see also Rory Horner, "Towards a New Paradigm of Global Development" (2020) 44:3 Progress in Human Geography 415 at 417. https://doi.org/10.1177/0309132519836158

3 A growing realisation of the universalisation of the threats posed by diseases has motivated wealthy countries to expand their solidarity groups - that is community of persons with whom they feel similarity. See Peter G N West-Oram & Alena Buyx, "Global Health Solidarity" (2017) 10:2 Public Health Ethics 212 at 214.

4 A first glance, the field of Global (Public) Health connote a universality of humanity and interests. Yet, as Afffun-Adegbulu and Adegbulu rightly observe, "the hierarchisation of humanity is very much an issue in Global (Public) Health. See Clara Affun-Adegbulu & Opemiposi Adegbulu, "Decolonising Global (Public) Health: From Western Universalism to Global Pluriversalities" (2020) 5 BMJ Global Health 1 at 1. https://doi.org/10.1136/bmjgh-2020-002947

5 SDG Target 3.8 aims to achieve universal health coverage, including financial risk protection, access to quality essential health-care services and access to safe, effective, quality and affordable essential medicines and vaccines for all - see World Health Organization, "The Global Health Observatory" (30 June 2022) online: who.int/data/gho/data/themes/topics/indicator-groups/indicator-group-details/GHO/sdg-target-3.8-achieve-universal-health-coverage-(uhc)-including-financial-risk-protection ; universal health coverage involves a set of health goals adopted by member states of WHO in 2005 to be achieved by health systems around the world (Sustainable Health Financing, Universal Coverage and Social Health Insurance, WHA, 9th Plen Mtg, UN Doc A58/20 (2005)). These goals call upon member states to secure a level of access to healthcare for their population that is not catastrophic and impoverishing. Health spending is said to be "catastrophic" whenever it is 40% or more of the capacity to pay (see Kei Kawabata, Ke Xu, & Guy Carrin, "Preventing Improverishment through Protection against Catastrophic Health Expenditure", (2002) 80:8 Bulletin World Health Organization 612; see also Uchechukwu Ngwaba, "A Right to Universal Health Coverage in Resource-Constrained Nations? Towards a Blueprint for Better Health Outcomes" (2018) 5 Transnational Human Rights Review 1. https://doi.org/10.60082/2563-4631.1082

6 Megan Twohey, Keith Collins & Katie Thomas, "With First Dibs on Vaccines, Rich Countries Have 'Cleared the Shelves'" (December 15, 2020), online: nytimes.com/2020/12/15/us/coronavirus-vaccine-doses-reserved.html?smid=tw-share ; Seye Abimbola et al, "Addressing Power Asymmetries in Global Health: Imperatives in the Wake of the Covid-19 Pandemic" (2021) 18:4 PLoS Medicine 1 at 2. https://doi.org/10.1371/journal.pmed.1003604

7 "UN Confirms Hoarding of Covid Vaccines by 10 Developed Countries" (17 February 2021) (Miami, Wire Feed, ProQuest One Business); Hoda Kotb et al, "The New COVID Concern Vaccine Hoarding" (22 January 2021) (New York, CQ Roll Call); Daphne Psaledakis, "Developing Nations' Plea to World's Wealthy at U.N.: Stop Vaccine Hoarding," Reuters (22 September 2021), online: reuters.com/world/developing-nations-plea-worlds-wealthy-un-stop-vaccine-hoarding-2021-09-22/.

8 The original communication from India and South Africa was tabled on 2 October 2020 (Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment and Treatment of Covid-19, WTO, UN Doc IP/C/W/669 (2020)); a revised communication with several other countries and the African group joining was tabled on 25 May 2021 (Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment and Treatment of Covid-19, WTO, UN Doc IP/C/W/669/Rev.1 (2021)).

9 It is worth noting that what has been negotiated bears little resemblance to the proposal India and South Africa tabled before the WTO in October 2020 (and in the revision of 25 May 2021). In the original version of the proposal, India and South Africa called for the waiver of patents, industrial designs, copyrights, and trade secrets that are guarded by WTO agreement on TRIPS. The compromise proposal that emerged indicates "some attempt to ease the burden of compulsory license mechanism for those supplying medicines and those importing medicines". The proposal will allow eligible members issue a single authorisation to waive multiple patents, including on ingredients and processes, without fear of a challenge from the patent holders. In the compromise, all countries that exported less than 10% of the world's vaccines in 2021 are eligible, which appears to exclude only China, the U.S., and the EU. It will also allow countries to export products to other eligible nations. A timeline for the length of the waiver remains to be decided. See Andrew Green, "TRIPS Waiver Compromise Draws Mixed Response" (17 March, 2022), online: devex.com/news/trips-waiver-compromise-draws-mixed-response-102860.

10 Apart from the significant loss of lives, the economies of many Global South States are yet to recover from the adverse impact of the pandemic.

11 While the bulk of the population of Global North States have been fully vaccinated with some getting booster shots, many Global South States are still struggling to get first doses out to their population. The result is that Global North States have now shifted gears and are ready to welcome a post-pandemic world with an emphasis on a return to 'new normal' while Global South States are still battling the adverse impacts of the Covid-19 pandemic. See Simar Singh Bajaj et al., "Vaccine Apartheid: Global Cooperation and Equity" (2022) 399 Lancet 1452. https://doi.org/10.1016/S0140-6736(22)00328-2

12 Emma Frage & Michael Shields, "World Has Entered a Stage of 'Vaccine Apartheid' - WHO Head" (17 May 2021), online: reuters.com/business/healthcare-pharmaceuticals/world-has-entered-stage-vaccine-apartheid-who-head-2021-05-17/.

13 Reuters, "WHO Says World Has Entered Stage of 'Vaccine Apartheid'" (17 May 2021), online (video): youtube.com/watch?v=FxMdIL6qERk.

14 See Bajaj et al, supra note 11; United Nations, "UN Expert Urges States to End 'Vaccine Apartheid'" (14 June 2022), online: ohchr.org/en/press-releases/2022/06/un-expert-urges-states-end-vaccine-apartheid ; Roojin Habibi et al, "The HIV/AIDS Crisis Showed Us How to Equitably Overcome a Pandemic," (19 January 2022), online: theglobeandmail.com/opinion/article-the-hivaids-crisis-showed-us-how-to-equitably-overcome-a-pandemic .

15 By their virtue of their selfish hoarding of life-saving vaccines and refusal to yield to the request for waivers to the TRIPS regime to allow cheaper access to the Covid-19 vaccines by Global South States. See Bajaj et al, supra note 11.

16 What is suggested to have been trivialised is the crime of apartheid under international law which is viewed with the highest level of reprobation. The paper by no means suggests that hoarding vaccines and limiting access to those in need is not an equally egregious act of international wrongdoing.

17 International Convention on the Suppression and Punishment of the Crime of Apartheid, UNGA, UN Doc A/9030 (1974) GA Res 3068 A (XXVIII) [Apartheid Convention] Art II defines the crime of apartheid.

18 The right to health encourages regard for principles of international solidarity and cooperation in advancing health capabilities of all peoples regardless of geographical location, national identity, or any other distinguishing factor.

19 I borrow from Paul Farmer's work to coin this expression. See Paul Farmer, "Pathologies of Power: Rethinking Health and Human Rights" (1999) 89:10 American J Public Health 1486. https://doi.org/10.2105/AJPH.89.10.1486

20 See Apartheid Convention, supra note 17.

21 Ibid.

22 Obiora Chinedu Okafor, "Panel on Vaccine Apartheid (Legal Voices Conference" (13 November 2021), online (video): youtube.com/watch?v=uuYAxParchE ; multiple data sets have tracked the mortality rates arising from Covid-19. While Sub-Saharan African States appeared to have been relatively spared of high mortality rates, the collateral damage on the health system and economy for these states was more severe, with many not fully recovered from the aftershocks. See Robert Colebunders & Joseph Nelson Siewe Fodjo, "Covid-19 in Low and Middle Income Countries" (2022) 11:11 Pathogens 1325. https://doi.org/10.3390/pathogens11111325

23 Universal Declaration of Human Rights, UNGA, 3rd Sess, UN Doc A/810 (1948) GA Res 217 A (III).

24 International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, UNGA, 21st Sess, UN Doc A/6516 (1966) GA Res 2200 (XXI) at Art 2(1); the right to health is protected under Art 12 of the ICESCR.

25 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties' Obligations (Art. 2, Para. 1, of the Covenant), UN Doc E/1991/23 (1991) [General Comment 3]. 26 Ibid.

27 Ibid at para 3.

28 See Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights, CESCR, 2020, UN Doc E/C.12/2020/1

Statement on Universal and Equitable Access to Vaccines for COVID-19, CESCR, 2020, UN Doc E/C.12/2020/2.

29 ICESCR, supra note 24, Art 2(1).

30 General Comment 3, supra note 25 at para 13.

31 Ibid.

32 See Mariam O. Fofana, "Decolonising Global Health in the Time of Covid-19" (2020) 16:8-9 Global Public Health 1155 at 1157. https://doi.org/10.1080/17441692.2020.1864754

33 Ibid.

34 Deborah J Neil, Networks in Tropical Medicine: Internationalism, Colonialism, and the Rise of a Medical Speciality, 1890-1930 (Stanford, CA: Stanford University Press, 2012).

35 Fofana, supra note at 27, 1156.

36 Ibid.

37 Philip D Curtin, "'The White Man's Grave:' Image and Reality" (1961) 1:1 J British Studies 94. https://doi.org/10.1086/385437

38 Neil, supra note 29 at 13-19. https://doi.org/10.3928/0098-9134-19931001-08

39 Fofana, supra note 27 at 1156.

40 We were reminded of this colonial past in the suggestion that was made by two French doctors on a French television channel to test the early development of the Covid-19 vaccine on Africans. See Rebecca Rosman, "Racism Row as French Doctors Suggest Virus Vaccine Test in Africa" (4 April 2020), online: aljazeera.com/news/2020/4/4/racism-row-as-french-doctors-suggest-virus-vaccine-test-in-africa .

41 Helen Tilley, "Medicine, Empires and Ethics in Colonial Africa" (2016) 18:7 AMA J Ethics 743. https://doi.org/10.1001/journalofethics.2016.18.7.mhst1-1607

42 Richard Horton, "Offline: Frantz Fanon and the Origins of Global Health" (2018) 392 Lancet 720. https://doi.org/10.1016/S0140-6736(18)32041-5

43 Ibid.

44 Allan M Brandt, "How AIDS Invented Global Health" (2013) 368 New England J Medicine 2149; referred to in Horton, supra note 36. https://doi.org/10.1056/NEJMp1305297

45 Peter Piot & Thomas C. Quinn, "Responses to the AIDS Pandemic - A Global Health Model" (2013) 368 New England J Medicine 2210; referred to in Horton, supra note 36. https://doi.org/10.1056/NEJMra1201533

46 Horton, supra note at 36.

47 Ibid.

48 Ibid; for an interesting reading of the impact of the colonial on modern global health, see Seye Abimbola, "On the Meaning of Global Health and the Role of Global Health Journals" (2018) 10 Intl Health 63. https://doi.org/10.1093/inthealth/ihy010

49 Fofana, supra note 27 at 1162.

50 Ibid at 1158-60.

51 Eugene T Richardson, "On the Coloniality of Global Public Health" (2019) 6:4 Medicine & Anthropology Theory at 101-118. https://doi.org/10.17157/mat.6.4.761

52 On this point see Abimbola et al, supra note 6.

53 Institute of Medicine of the National Academes, Vector-Borne Diseases: Understanding the Environmental, Human Health, and Ecological Connections: Workshop Summary (Washington, DC: National Academies Press, 2008).

54 See Anu Kumar, "White Supremacy in Global Health" (18 June, 2020), online: thinkglobalhealth.org/article/white-supremacy-global-health ; see also Abimbola et al, supra note 6; and Fofana, supra note 27.

55 Anu Kumar, supra note 48.

56 Available data show that 85% of global health institutions are headquartered in Global North States where major decisions impacting global health are made. See Global Health 50/50, "The Global Health 50/50 Report 2020: Power, Privilege and Priorities" (2020), online: globalhealth5050.org/wp-content/uploads/2020/03/Power-Privilege-and-Priorities-2020-Global-Health-5050-Report.pdf .

57 Ibid.

58 Joseph L Dieleman et al, "Global Health Spending and Development Assistance for Health" (2019) 321:21 JAMA 2073. https://doi.org/10.1001/jama.2019.3687

59 The Lancet commissions, for example, are dominated by Global North experts, and a vast majority have secretariats based in Global North universities (Manuel W Hetzel & Bassirou Bonfah, "Towards More Balanced Representations in Lancet Commissions (2020) 395 Lancet 1693 https://doi.org/10.1016/S0140-6736(20)30617-6 ; awards in global health are mostly given to men and experts from the Global North (Emily MacLean et al, "Global Tuberculosis Awards Must Do Better With Equity, Diversity, and Inclusion" (2021) 397 Lancet 192 https://doi.org/10.1016/S0140-6736(20)32627-1 .

60 Madhukar Pai, "How Prestige Journals Remain Elite, Exclusive and Exclusionary" (30 November 2020), online: forbes.com/sites/madhukarpai/2020/11/30/how-prestige-journals-remain-elite-exclusive-and-exclusionary/?sh=12ae2e334d48 .

61 Abimbola et al, supra note 6, 7; Even when research work is focused entirely in the Global South, much of donor funds are given to agencies and institutions in the Global North and Global North States hold the purse strings (see Dieleman et al, supra note 52); for example, less than 2% of all humanitarian funding goes directly to local NGOs (see Bibi van der Zee, "Less than 2% of Humanitarian Funds 'Go Directly to Local NGOs'" (16 October 2015) online: theguardian.com/global-development-professionals-network/2015/oct/16/less-than-2-of-humanitarian-funds-go-directly-to-local-ngos ; about 80% of USAID's contracts and grants go directly to United States firms (Kenan Malik, "As a System, Foreign Aid is a Fraud and Does Nothing for Inequality" ( 2 September 2018), online: theguardian.com/commentisfree/2018/sep/02/as-a-system-foreign-aid-is-a-fraud-and-does-nothing-for-inequality ; 70% of NIH Fogarty grants go to US and Global North institutions (Roger I Glass, "Decolonizing and Democratizing Global Health are Difficult, But Vital Goals" (2020) 19:4 Global Health Matters 1 at 10); and 73% of the total international grant portfolio of the Welcome Trust supports United Kingdom-based activity (Wellcome Trust, "Grant Funding Data Report 2018/19" (March 2020), online: wellcome.org/sites/default/files/grant-funding-data-2018-2019.pdf . Even when funds given to Global South agencies or researchers, Global North donors often set the agenda and micromanage the work, leaving little room for Global South groups to innovate.

62 Luis Eslava & Sundhya Pahuja, "Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law" (2012) 45:2 L & Politics in Africa, Asia & Latin America 195 at 197. https://doi.org/10.5771/0506-7286-2012-2-195

63 Obiora Chinedu Okafor & Uchechukwu Ngwaba, "The International Criminal Court as a Transitional Justice Mechanism in Africa: Some Critical Reflections" (2014) 9:1 Intl J Transitional Justice 90 at 91. https://doi.org/10.1093/ijtj/iju025

64 Obiora Chinedu Okafor, "Newness, Imperialism, and International Legal Reform in Our Time: A Twail Perspective" (2005) 43:1/2 Osgoode Hall LJ 171. https://doi.org/10.60082/2817-5069.1348

65 Okafor and Ngwaba, supra note 63, 92.

66 Amartya Sen, Inequality Reexamined (Oxford: Oxford University Press, 1992).

67 Ibid; cited in Jennifer Prah Ruger, "Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements" (2006) 18:2 Yale JL Human 1 at 13.

68 Ibid.

69 Steve Biko, I Write What I like: Selected Writings (London: Bowerdean Press, 1978).

70 Abimbola et al, supra note 6, 3.

71 Ibid.

72 Ibid at 8.

73 Ibid at 6.

74 Ibid at 8; Sejuti Saha & Madhukar Pai, "Can Covid-19 Innovations and Systems Help Low- and Middle-income Countries to Re-imagine Healthcare Delivery?" (2021) 2:4 Med 369. https://doi.org/10.1016/j.medj.2021.02.008

75 World Health Organization, "Coronavirus Disease (COVID-19) Pandemic", online: who.int/europe/emergencies/situations/covid-19 .

76 World Health Organization, "Member States Consider Proposed Amendments to the International Health Regulations with Discussions on Equity to Continue" (19 February 2024), online: who.int/news/item/19-02-2024-member-states-consider-proposed-amendments-to-the-international-health-regulations-with-discussions-on-equity-to-continue .

77 World Health Organization, "WHO Member States Agree to Resume Negotiations Aimed at Finalizing the World's First Pandemic Agreement" (28 March 2024), online: who.int/news/item/28-03-2024-who-member-states-agree-to-resume-negotiations-aimed-at-finalizing-the-world-s-first-pandemic-agreement .

78 Luke Taylor, "Covid-19: WHO Treaty on Future Pandemics is Being Watered Down, Warn Health Leaders" (2023) 381 BMJ 1246. https://doi.org/10.1136/bmj.p1246