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13 June 2022

Open Letter from the Special Rapporteur on contemporary forms of racism, racial

discrimination, xenophobia and related intolerance to the World Trade

Organization’s Twelfth Ministerial Conference

provisions of the TRIPS Agreement for the prevention, containment and treatment of

COVID-19.

As an independent expert appointed by the United Nations Human Rights Council

to monitor and report on contemporary manifestations of racism and racial discrimination,

I have closely monitored the global racial inequities exposed and exacerbated by the

COVID-19 pandemic. The pandemic has had disproportionate impacts on Africans and

people of African descent, Asians and people of Asian descent, indigenous peoples,

stateless persons, migrant workers, women, people discriminated against on the basis of

their sexual orientation, gender identity or sex characteristics, persons with disabilities

International trade law, including international intellectual property law,

perpetuates racial discrimination in access to lifesaving COVID-19 vaccines and

medicines. Urgent action is required to remove these legal obstacles to equality and non-

discrimination. I thus urge you to immediately use all tools available to you to rectify

transnational inequities in access to COVID-19 vaccines, treatments and other

technologies. This includes adopting a comprehensive TRIPS waiver under the terms

prominently proposed by certain WTO Members and civil society. International human

rights law requires the prohibition of racial discrimination as a matter of both treaty-based

and customary international law. Under these obligations, shared by all WTO Members,

the organization must be attuned to the current unequal distribution of life-saving

say”, 29 November 2021; “Statement by UN Human Rights Experts Universal access to

vaccines is essential for prevention and containment of COVID-19 around the world”, 9

November 2020; Tlaleng Mofokeng, “UN expert strives to make right to health a reality for all”,

23 June 2021.

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Unequal access to COVID-19 vaccines and other COVID-19 technologies within

and across nations is undeniably an issue of racial injustice. Racism, racial discrimination,

xenophobia and related intolerance operate through both: (1) differential treatment of and

The Committee on the Elimination of Racial Discrimination (“CERD”) has

highlighted how the disproportionate impact of COVID-19 between and within countries

reproduces colonial hierarchies and represents the international community’s failure “to

redress the effects of racism rooted in slavery, colonialism and apartheid.”

Certain

“developed” nations and powerful transnational corporations based within their

jurisdictions have monopolized authority to determine “who is worth saving” — and this

hierarchical power cannot be unlinked from its colonial origins. Researchers have

observed that “[t]he map of winners and losers in the COVID-19 vaccination race appears

almost indistinguishable from the map of European colonialism”.

Additionally, the

which certain countries are “plunged into multiple interlinked emergencies – a debt crisis,

a development crisis and a human rights crisis.”

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The term “vaccine apartheid” aptly

describes the regime that has been in place for much of the pandemic.

In addition to curtailed access to COVID-19 vaccines, intellectual property

barriers have limited the supply of COVID-19 diagnostic technologies and therapeutic

treatments. Monopolies over the creation and supply of COVID-19 technologies have

exacerbated shortages for low-income nations, with States in a position to materially

transform the situation failing to do so.

perspective. This consensus is captured in the findings and statements of, among others,

various Human Rights Council Special Procedures mandate holders,

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2

General Assembly. See, e.g., A/HRC/41/54.

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and non-discriminatory access to COVID-19 vaccines”, statement at the 106

equity/

briefing on COVID-19, Geneva, 7 June 2021.

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49th session of the Human Rights Council, Geneva, 11 March 2022.

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Ghebreyesus, the Director-General of the World Health Organization,

Bachelet, UN High Commissioner for Human Rights,

Undersecretary-General and Executive Director of UNAIDS,

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and UN Secretary-

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containment or treatment”. News reports have emerged that a compromise reached in

March 2022 is geographically limited and only covers vaccine production. The former

UN Secretary-General Ban Ki-Moon has gone so far as to identify the proposed text as

inadequate, calling it a “half measure”.

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Racial injustice is a defining challenge of our times. Systemic racial

discrimination is embedded into transnational legal, economic and political structures,

including the international intellectual property regime. These systems uphold racial

inequality by constraining the possible solutions for challenging such inequality. In the

almost entirely by States, peoples and territories which were the beneficiaries of

colonialism.

In the face of this monumental challenge and deeply entrenched historical

inequality, half-measures and weak compromises are not enough. It is notable that many

of the WTO Members now resisting a full TRIPS waiver were on the forefront of

denouncing systemic racial discrimination in the aftermath of the 2020 racial justice

uprisings. At that time, they called for the cooperation of all nations and all peoples in

eradicating racial inequality and systemic racism. Delegates, I urge you to honor those

any issues related to my mandate, please do not hesitate to contact me through the Office

of the High Commissioner for Human Rights (Ms. Eleanor Robb, eleanor[email protected]).

“UN Undersecretary-General Says Failure to Share COVID-19 Vaccines with Global South

‘Is Racism’”, World Economic Forum, 25 May 2022.

thematic debate on “Galvanizing Momentum for Universal Vaccination”, in New York, 25

February 2022.

Ban Ki-Moon, “India, South Africa must not accept half-measures by the West when lives are

on line during Covid-19 pandemic”, The Times of India, 24 March 2022.

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E. Tendayi Achiume