Missing Questions in the ASEAN Human Rights Court Narrative

Missing Questions in the ASEAN Human Rights Court Narrative

Rafsi Albar*

Introduction

Southeast Asia has a grim track record on human rights. Suharto’s Indonesia killed alleged communists en masse during his 32-year reign. Pol Pot’s Khmer Rouge in Cambodia subjugated millions, and Ferdinand Marcos’s martial law in the Philippines was marked by torture, forced disappearances, and extrajudicial killings. Today, Myanmar faces a two-fold problem: first, with its oppressive military rule, which has deprived its people of fundamental rights; and second, with the Rohingya refugee crisis, which has persisted since the Rohingya genocide started in 2016. Many see the region as continuing to follow a dark path.

The Association of Southeast Asian Nations (“ASEAN”) connects these countries and six others. Born in 1967 with the mission to accelerate economic and social cooperation for collective growth and regional stability, the organization has expanded its scope to address evolving global challenges such as environmental issues and counter-terrorism. Human rights, while already included as a guiding principle in the 2007 Charter, became formally institutionalized in the ASEAN infrastructure through the establishment of the ASEAN Intergovernmental Commission on Human Rights (“AICHR”) in 2009 and the ASEAN Human Rights Declaration (“AHRD”) in 2012.

Many have voiced discontent over the Commission’s inability to provide real solutions to pressing human rights issues in the region. Some have suggested the creation of a regional human rights court. While this idea has garnered support from scholars and the public, the debate over the Court has failed to address fundamental questions about its need and feasibility.

I. The Ongoing Discourse

Many legal scholars have concluded that the present ASEAN human rights regime is insufficient to effectively respond to the increasingly rampant human rights violations occurring in member states, ranging from the silencing of political dissent to grave violations such as systemic genocide and crimes against humanity. With the Commission’s work mostly focusing on non-contentious topics that are easily agreeable by member states—which are still important—there is a growing sentiment that the Commission is unable to address the most urgent and controversial human rights issues.

To solve the problem, some have proposed the idea of a regional human rights court. Drawing inspiration from systems in Africa, the Americas, and Europe, many suggest that the best way to achieve justice for human rights violations when a state is unwilling to act is through a supranational judicial authority. In scholarly legal discussions, several proposals have emerged regarding the structure and operation of the Court. The discourse largely focuses on details such as the Court’s jurisdiction, composition of judges, and strategies for cooperation. Yet the goal is lofty: a supranational court empowered to enforce treaties and human rights, comparable even to those in the European continent.

II. The Missing Questions

Discourse about the establishment of a human rights court within the ASEAN system has not been very nuanced, especially considering the political volatility of countries in the region. “Debates”—which are in truth minor quibbles over operational details rather than substantive disagreements on underlying factors—have mostly revolved around how the court should be formed, premised on the common presumption that its formation is inevitable. The question thus arises: are the basic foundations of this presumption—that an ASEAN human rights court is needed and possible—correct?

1. Is a Court Needed?

To be clear, questioning the appropriateness of an ASEAN human rights court does not negate the claim that the region needs a human rights framework. While a Court is likely the most sophisticated option, it is far from being the only effective one. Taking examples from the United Nations’ human rights system, alternatives like employing rapporteurs, instituting special monitoring bodies, or even allocating reparation funds for victims are arguably more feasible alternatives.

The establishment of an ASEAN human rights court must be grounded in the fundamental principles of ASEAN and its member states, and attention to differences between ASEAN and other regional organizations is critical. The European Court of Human Rights, as implied in the preambulatory clauses of the Convention on Human Rights, was built on top of a shared European identity forged through centuries of war and political interactions. Its post-war creation reflected a common European aspiration for human rights and democratic governance. This codified sense of shared destiny and common values has gained the Court widespread legitimacy and respect.

However, ASEAN’s strictly intergovernmental character differentiates it from the supranational form of the European Union. As set up by the 1967 Bangkok Declaration, ASEAN is meant to help members realize their individual potential through socio-economic cooperation and the exchange of best practices while fully maintaining members’ autonomy. ASEAN and its bodies have very limited collective decision-making authority. This structural limitation necessitates innovative approaches to work around the governance gap vis-à-vis the power to compel measures on states and raises real questions about whether the organization should concern itself with human rights.

The foundations for a more comprehensive Southeast Asian human rights regime already exist, albeit not very robustly. The ASEAN Intergovernmental Commission on Human Rights (AICHR) and its landmark instrument, the ASEAN Human Rights Declaration (AHRD), could form the basis of improvements to the regional system. Global precedents have demonstrated that the viability of a judiciary in human rights enforcement is frequently aided by the establishment of a strong non-judicial arm. Therefore, before anything else, the AICHR has to undergo some level of transformation such that it serves as a solid bedrock for the development of a court. When a court is introduced, it can build upon the groundwork laid by the Commission, leading to more cohesive and coordinated efforts in upholding human rights. Creating a court requires significant political and financial capital. It should thus be pursued only after a comprehensive review and exhaustion of other options, such as enhancing the AICHR, developing regional mechanisms for monitoring and reporting, and setting up advisory bodies.

2. Is a Court Possible?

Even if a court is desirable, it might not be possible. The “ASEAN Way” is a paradigm (in)famous for how it has shaped the decisions of the organization and its member states. It dictates how international relations are done among member states, namely through less formalistic and confrontational dialogues in the interest of stability. Although well-intended as a means of showing respect to the sovereignty of states as prescribed as part of customary international law, it poses a number of problems for human rights.

The principle of non-interference, as stipulated in Article 2.2(e) of the ASEAN Charter, limits the organization’s jurisdiction to address human rights issues. The situation in Myanmar illustrates the organization’s current limits. Despite human rights abuses in Myanmar being consistently raised in ASEAN meetings, ASEAN members have yet to take concrete steps to address the crisis. Leaders openly acknowledge the organization’s inaction. But thanks to ASEAN’s overly exaggerated sense of “respect” for sovereignty, the prospect of establishing a permanent institution to address situations like Myanmar seems even more unlikely to gain member support. Moreover, the consultation and consensus-based decision-making process of the organization makes a court even more infeasible. The consultation-and-consensus model is designed to ensure strict obedience to ASEAN’s principles, but it is often blamed for ASEAN’s sluggish responses to problems. Given that some members—not just Myanmar—are still struggling to uphold human rights on their own, political unwillingness to create a human rights court will pose a significant obstacle.

Even if member states manage to put aside their individual agendas and come to a consensus on the establishment of the court, it is not clear that the Court would be able to stand the test of time. Southeast Asian nations differ widely in their political character and the region is deeply divided. Disunity can and has derailed the workings of ASEAN on various fronts. Maintaining an ASEAN human rights court in this environment may be difficult.

Concluding Remarks

The case for an ASEAN human rights court needs to return to its foundations. While the idea of having a judicial body akin to the courts in Europe, Africa, or the Americas holds a certain appeal, the region’s unique context demands tailored and contextual approaches. This article brings to light two often-overlooked basic questions: whether a court is necessary or possible in the first place. These questions do not necessarily mean a court is impossible. But they are prerequisites to further debate – and vital points of contemplation to assure the potency of the potential court should it eventually become a reality.


*Rafsi Albar is an undergraduate at Universitas Gadjah Mada, Indonesia, concentrating on public international law. He assists teaching in administrative law, conducts various public interest legal research, and serves as an editor at Juris Gentium Law Review, the country’s foremost student-run publication.


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International Investment Law Enables the Use of Frozen Russian Assets to Compensate for War Damage in Ukraine

International Investment Law Enables the Use of Frozen Russian Assets to Compensate for War Damage in Ukraine

Csongor István Nagy*

Editor’s Note: This piece is part of a special collaboration with the Harvard International Law Students Association on international arbitration.

I. Introduction

In February 2022, Russia launched a full-scale war against Ukraine. The overwhelming majority of the international community condemned this as a gross violation of international law. Although the U.N. Security Council did not adopt sanctions, several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond asset freezes and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international legal concerns. While states have, with good reason, been reluctant to react to one wrongful act with another,[1] this question has given rise to intensive debate. Recently, the EU set up a working group to inquire if and how Russian assets could be used to reconstruct Ukraine.

In this paper, I argue that instead of frontal approaches involving direct seizure, “maneuver lawfare” and international investment law provide a solution. Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. International investment law, notably the Russia-Ukraine BIT (“RUBIT”), “commercializes” acta jure imperii. It converts public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that a substantial part of Ukrainian war damages can be submitted to arbitration and that their incorporation into an arbitral award offers a solid legal basis for enforcement against Russian assets. Although the proposed approach promises no one-click solution and has not yet undergone baptism by fire, it is legally capable of producing substantial practical results.

II. Confiscating Foreign State Assets Under International Law

The wholesale freezing and confiscation of foreign state assets is generally prohibited under customary international law (Art 9 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Countries in Which They Live). There are, however, exceptions, most notably countermeasures. These are illegal acts whose wrongfulness is precluded by the fact that they react to a pre-existing wrongful act (see e.g. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ¶¶ 82-87; Air Services Agreement Case (France v. United States), ¶ 83), provided they are reversible and aim to compel compliance with international law (Article 22, 49(1) and 49(3) of the 2001 Draft UN Treaty on the Responsibility of States for Internationally Wrongful Acts (“TRSIWA”). Although generally countermeasures can be imposed only by injured countries, this limitation does not apply to the violation of erga omnes obligations. “Any State (. . .) is entitled to invoke the responsibility of another State (…) if (…) the obligation breached is owed to the international community as a whole” (Article 48(1) of TRSIWA). Russian aggression in Ukraine clearly violates the erga omnes prohibition on use-of-force in international relations (Article 2(4) of the U.N. Charter) and, hence, authorizes countermeasures. However, countermeasures are expected to preserve assets so they can be returned once their legal basis ceases (the perpetrator terminates the wrongful act and provides reparations (Article 48(3) of TRSIWA) or the countermeasure is revoked. This requirement implies that countermeasures may not go beyond asset-freezing and that the assets of the foreign state cannot be confiscated via countermeasures (Bederman, p. 824; Elegab, p. 196; Zoller, p. 15).

The confiscation of frozen Russian assets may also be described as a garnishment assisting the enforcement of Ukrainian international law-based claims to compensation. Undoubtedly, Russia is “under an obligation to make full reparation for the injury caused by the internationally wrongful act” (Article 31 of TRSIWA). Simultaneously, notwithstanding this substantive obligation, Russia has sovereign immunity in these matters. “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State” (Article 5 of 2004 UN Convention on Jurisdictional Immunities of States and Their Property (“CJISP”)). Although exceptions apply, the war is an actum jure imperii and all war-related claims may come under the general rule of sovereign immunity (Jurisdictional Immunities of the State (Germany v. Italy), ¶¶ 60, 77, 92-97, 134-35, 140-42).

While the confiscation of frozen Russian assets, both as countermeasure and garnishment, raises serious international law concerns, commercial matters (Article 10 of CJISP), as well as state consent (Article 7(1) of CJISP), are exceptions to sovereign immunity. This applies a fortiori to arbitration, which is, by definition, less intrusive in state sovereignty than proceedings by the courts of another sovereign. Section II demonstrates how investor-state arbitration embedded in BITs enables the use of this exception to claim compensation for war damages.

III. Investment Awards Create a Legal Title for Enforcement Against Frozen Russian Assets

International investment law, and specifically the RUBIT, converts claims emerging from acta jure imperii into private law, providing a basis of arbitral proceedings that rest on the consent of Russia. This makes the resulting arbitral award immune from sovereign immunity.

Investment arbitration is the only mechanism that authorizes compensatory claims by individuals for breaches of public international law.[2] While claims emerging from acta jure imperii are suppressed by sovereign immunity, investment arbitral awards are not. BITs have a dual nature and, by blending public international law with private law, they vest claims emerging from public law violations with a commercial law character. They convert public law disputes into private law controversies with a quasi-commercial character, where states lack immunity.

This commercial character manifests itself in both scholarship and practice (Moses, pp. 243-45; Sweet & Grisel, pp. 72-73). Some even argue that investment arbitration is “international commercial arbitration.” (Gaillard & Savage, pp. 42-43). This thinking is also reflected in a wealth of case law that applies the New York Convention’s rules on recognition and enforcement to investment awards (Van Harten, p. 378). U.S. courts take a similar approach (Argentina v. BG Group, pp. 117-19; Chevron v. Ecuador, pp. 207-08; Gold Reserve v. Venezuela; Crystallex v. Venezuela).

International law limitations apply to “non-commercial” assets, such as military or central bank holdings, which are immune from enforcement even if the award or judgement was rendered in a commercial matter (Article 21 of CJISP). Nonetheless, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can, however, be used to satisfy enforcement creditors.

IV. Do War Damages Fall Under RUBIT’s Scope?

The case law on BITs’ application to illegally occupied territories is scant. It is limited to a few cases concerning Crimea, where arbitral tribunals held that effective control is sufficient for the RUBIT to apply ratione loci (Ukrnafta; Stabil; Everest; Belbek; Privatbank and Finilon; Naftogaz; Oschadbank; Lugzor). The issue has attracted more attention and produced some scholarship on BITs’ application in times of war (Zrilic; Schatz; Fach Gómez; Ryk-Lakhman; Ackermann & Wuschka; Ackermann; Schreuer) and civil disorder (Greenman), but this has predominantly focused on interpretation of substantive provisions, such as rules on expropriation and treatment. Interpretive questions concerning BITs’ scope and their application to illegally occupied territories have remained largely unsettled.[3]

BITs apply to investments by citizens of one Contracting Party situated on the territory of another. They provide for protection against direct and indirect expropriation without compensation and set out various treatment standards for foreign investors. Translating this to the current question, the RUBIT applies to investments of Ukrainian nationals and legal entities within Russian territory. Article 12 of the RUBIT provides for its application to “investments carried out (…) as of January 1, 1992.” Accordingly, the RUBIT may apply to war damages caused by Russia in Ukraine, if the damages are done to an investment by a Ukrainian national made after January 1, 1992, within territory that could be considered Russian under the RUBIT.

Although the application of a BIT to seek compensation for war damages is uncharted territory, the real question of first impression is clearly the construction of territorial scope under the RUBIT and whether the territories of Ukraine illegally occupied or claimed by Russia can be regarded as Russian for purposes of the RUBIT. The other elements of scope have relatively settled meaning in international arbitral and state practice (Brown) and interpretation of these elements in the context of war damages raises no unprecedented issues.

Article 1(4) of the RUBIT defines the treaty’s territorial scope as “the territory of the Russian Federation or the territory of the Ukraine and also their respective exclusive economic zone and the continental shelf as defined in conformity with the international law.” Areas that legally belong to and are effectively controlled by a state are unquestionably that state’s territory. Nonetheless, what if the area legally belongs to but is not effectively controlled by a state or is effectively controlled by but does not legally belong to the state? Does it matter if a state frivolously claims the area it controls? What if a state makes continuous efforts to occupy an area it frivolously claims but momentarily does not control?

The possible scenarios can be presented in a three-dimensional coordinate system, whose axes are “legal title,” “effective control” (occupation) and “unilateral claim.” An additional question is if an area can, under the RUBIT, simultaneously belong to both Russia and Ukraine. Can Crimea qualify as Ukrainian territory via legal title and as the territory of Russia via effective control?

Based on the above factors, the following matrix emerges:

  1. Ukrainian territory controlled by Ukraine and neither claimed, nor controlled, by Russia;
  2. Ukrainian territory controlled by Ukraine and claimed by Russia (unoccupied parts of the Luhansk, Donetsk, Kherson, and Zaporizhzhia oblasts);
  3. Line of contact on Ukrainian territory claimed by Russia (the line of contact in the above four oblasts);
  4. Line of contact on Ukrainian territory not claimed by Russia (the line of contact during the offensive towards Kyiv);
  5. Ukrainian territory controlled but not claimed by Russia (e.g. the areas captured during the offensive towards Kyiv);
  6. Ukrainian territory controlled and claimed by Russia (e.g. Crimea, occupied parts of the aforementioned oblasts).

The starting point of the interpretation of the term “territory” is that this is strictly a question of treaty interpretation and not one of state territory and international recognition. This is how the arbitral practice approaches the applicability of the RUBIT.[4] Put differently, it is a contractual dispute, not a title dispute. The relevant question is how to interpret the term “territory” in the application of the RUBIT and not whether a given region legally forms part of a country or not (although the two issues certainly overlap, and one may argue that they should coincide). This implies that the RUBIT’s provisions on territorial scope must be construed in accordance with the 1969 Vienna Convention on the Law of Treaties (“VCLT”), customary international law, and arbitral and state practice.

Arbitral and state practice confirms that effective control constitutes territory in the application of BITs. Russia has been the defendant of several arbitral proceedings under the RUBIT. In these cases, listed above, the tribunals consistently concluded that, due to Russia’s effective control, its territory includes Crimea, notwithstanding its occupation’s illegality. These tribunals held that the term “territory” must be interpreted broadly and that de facto territory is the term’s “ordinary” meaning, detaching it from questions of legal title.

The most difficult territorial question is the status of illegally claimed but uncontrolled areas. On September 30, 2022, Russia annexed four Ukrainian provinces (Luhansk, Donetsk, Kherson, and Zaporizhzhia), without controlling substantial parts of each.

Arbitral practice concerning Crimea suggests that the territorial scope of BITs is not a question of control but of international obligations. Effective control is, however, not the only case where a state assumes international obligations over a territory. Although arbitral tribunals have applied the RUBIT based on Russia’s effective control over the area, their reasoning suggests that Russia’s unilateral and unlawful annexation played an important role in this assessment and that its unilateral illegal claim was a crucial consideration in addition to occupation. In Stabil v. Russia, the tribunal noted (¶ 190) that “Russia [had] assumed obligations over Ukrainian investment in Crimea.” It found (¶ 175) that the RUBIT “became opposable to Russia (. . .) upon Russia’s incorporation of Crimea in its territory no later than 21 March 2014 when Russia ratified the Incorporation Treaty and passed the Crimean Integration Law which formally incorporated Crimea as a subject of the Russian Federation.” In Belbek, the tribunal held (¶ 175) that “the term ‘territory’ (…) has a wider meaning capable of encompassing territory for which a State has assumed the responsibility for international relations.” These statements suggest that a state’s unilateral position regarding its own territory may have an important role in assessing this question.

The question of “territory” may also be grasped using the interlinked concepts of good faith, acquiescence and estoppel. The 1969 VCLT does not rule out the use of the principles of interpretation based on customary international law (Linderfalk; Fitzmaurice & Merkouris; Lo; Dörr & Schmalenbach).

By pronouncing the incorporation of the occupied oblasts, irrespective of whether it has gained effective control over their entire territory or not, Russia assumed legal responsibilities related to these territories. This implies that it claimed the right to represent these areas internationally, made their inhabitants Russian citizens, and made Russian law applicable. The question is whether Russia also assumed duties under the RUBIT in relation to these areas and whether Russia can contradict itself and argue that the areas which it declared to be Russian are, in fact, not its territory? Some argue, in the context of Crimea, that, due to the principle of estoppel, the unilateral annexation prevents Russia from raising the objection that the annexed area is not part of its territory.

Good faith is an elusive legal principle. It serves as the root of both estoppel (Crawford, p. 420) and acquiescence (Reinhold, p. 53-56). In international investment law, estoppel can be understood as responding to inconsistent behaviour (Grenada Private Power, ¶ 208; Karkey Karadeniz v. Pakistan, ¶ 628; Border Timbers v. Zimbabwe, ¶ 411) and can have a narrower and a broader meaning (MacGibbon; Tran Thang Long; Kulick). Under the narrow definition, the principle of estoppel becomes relevant if the other party relied on a  representation to its detriment (Amco v. Indonesia, ¶¶ 42-49). According to the broad definition, it suffices if the state acts contrary to its own facts. Although the former is the prevailing position (Besserglik, ¶¶ 423-424; Bolivia v. Chile (Access to the Pacific Ocean), ¶ 158; Bay of Bengal, ¶ 124; Province of East Kalimantan v. Kaltim Prima Coal, ¶¶ 211-12; Duke Energy, ¶ 231; Gruslin v. Malaysia (II), ¶ 20.2; Pope & Talbot v. Canada, ¶ 111), the broader approach also appears in arbitral practice (Rumeli v. Kazakhstan, ¶ 335; Dissenting Opinion of Mr. Bernardo M. Cremades in Fraport v. Philippines (I), ¶ 28), turning into another recognized principle of international law: tacit acceptance. According to the 2006 U.N. Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, “[d]eclarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith.” It would be reasonable to view the unilateral annexation of Ukrainian territory as implying the assumption of international legal obligations related to sovereignty over these areas, including the protection of BITs. Consequently, whether this implied assumption estops Russia from reneging on international obligations it assumed or if this amounts to acquiescence to these international obligations is a question of semantics.

Arbitral tribunals have also noted that it would violate good faith if Russia could evade the RUBIT notwithstanding its annexation. In Stabil, the tribunal noted, while discussing the principle of good faith, that “Russia cannot at the same time claim that Crimea forms part of its territory and deny the application of a Treaty that it has concluded to protect investments made on its territory, without incurring an inconsistency contrary to good faith and (. . .)  consistency” (¶ 170). “Russia (…) has clearly manifested its will to consider Crimea as part of its territory, whilst taking no action to terminate or suspend the Treaty” (¶ 172). “[A] good faith interpretation of the Treaty mandates that Russia’s declaration that Crimea is part of its territory cannot remain without legal consequence to Russia’s Treaty obligations vis-à-vis Ukrainian investors in Crimea” (¶ 174).

The tribunal reached a similar conclusion in Belbek. It found (¶ 265) that “a conclusion that the Treaty no longer applies to conduct occurring in the Crimean Peninsula would . . . relieve the Contracting Parties of their obligation to perform the Treaty in good faith, contrary to the cardinal principle of pacta sunt servanda. It would be to create a legal void . . . that was never contemplated and should not be countenanced.”

V. Mass Claims and Investment Arbitration

Investment arbitration is thought of as being individualistic. Indeed, most investment disputes emerge from individual investor claims. Nonetheless, mass claims are absolutely not unprecedented. They were first recognized in three Argentine bondholder cases (Abaclat v Argentina; Ambiente Ufficio v. Argentina; Alemanni v. Argentina) and subsequently confirmed in Adamakopoulos v. Cyprus. In Abaclat, 180,000 Italian bondholders sued Argentina before the ICSID (the number was later reduced to 60,000). In Ambiente Ufficio, proceedings were launched by 119 claimants. In Alemanni, the claimants were 183 Italian individuals and legal entities. In Adamakopoulos, 956 Greek and Luxembourgish claimants, holders of certain financial instruments and bank deposits, sued Cyprus for financial restructuring measures adopted after the 2009 financial crisis.

These cases confirmed that the collective nature of mass claims is not a hurdle to arbitral proceedings. Although the ICSID Convention and Arbitration Rules are silent on this issue, there is nothing preventing arbitral tribunals from accommodating the special needs of mass actions with applicable rules of procedure, especially because Article 44 of the ICSID Convention authorizes tribunals to decide unsettled procedural questions (Ambiente, ¶ 146).  Arbitral practice highlights two important propositions. First, if a tribunal has jurisdiction over individual claims, it may also have jurisdiction over their aggregation. There is no requirement of specific consent: states are not required to specifically consent to jurisdiction over mass claims, as long as they consented to jurisdiction over individual claims (Abaclat, ¶ 490; Ambiente, ¶ 146; Alemanni, ¶¶ 284, 286-87; Adamakopoulos, ¶¶ 269-270). Second, there needs to be a substantial link between the aggregated claims (Abaclat, ¶¶ 540-41; Alemanni, ¶¶ 287-88, 292; Adamakopoulos, ¶¶ 210-21). Third, although mass claims may raise issues of manageability, and unmanageable aggregations may be inadmissible, tribunals usually find mass claims manageable (Adamakopoulos, ¶¶ 224, 259).

For the purposes of the present analysis, it is sufficient to conclude that mass claims are admissible and feasible and that investment tribunals have a practice of entertaining them. Ukrainian war victims can meet the requirements of interconnectedness and manageability by creating “pockets” of claims and submitting them in separate collective proceedings. For instance, residents expelled from a specific occupied area can claim compensation for lost property. Similarly, the residents of a town damaged by shelling could jointly claim compensation for the indirect expropriation of their homes. They may establish an entity (a company or association) and assign their claims to this entity or establish a joinder of parties and sue jointly.

The above matters were entertained by ICSID tribunals, while the RUBIT, in investor-state arbitration matters, stipulates the jurisdiction of the Arbitration Institute of the Chamber of Commerce in Stockholm or ad-hoc arbitration under UNCITRAL rules. This is an irrelevant distinction. Neither the ICSID Convention nor ICSID Arbitration Rules, address mass claims and arbitral tribunals have dealt with them under this “regulatory silence.” There is no reason to doubt that the same approach could be adapted to the rules of the Stockholm Arbitration Institute or UNCITRAL.

Conclusion

International investment law is not susceptible to providing a quick, comprehensive vehicle to use frozen Russian assets to compensate Ukrainian victims. Instead, it can be used mainly to claim compensation for damages to tangible and intangible property, excluding personal injury, pain and suffering, and death. Nonetheless, investment arbitration could be a powerful tool that opens a path to remuneration. BITs are not a vehicle of compensating war damages but a mechanism for protecting foreign investments. Simultaneously, the existence of war crimes does not rule out or even limit the application of BITs, which partially overlap with compensation for war damages.  This overlap can be used to achieve compensation.

The magic of international investment law can turn immune sovereign acts into non-immune commercial matters. Once the magic of an arbitral award occurs, the claim becomes enforceable against frozen Russian assets, which are, under international law, otherwise untouchable. To accomplish this, victims need to walk an arduous path to turn their claims into an arbitral award. The proposed enforcement strategy is a jig-saw puzzle made up of myriads of pockets of congenial claims. However, a meticulously constructed jig-saw puzzle still provides a fuller picture.


*Csongor István Nagy is a professor of law at the University of Szeged and a research professor at the Center for Social Sciences of the Hungarian Research Network. He is a recurrent visiting professor at the Central European University (Budapest/New York/Vienna) and the Sapientia University of Transylvania (Romania), and an associate member at the Center for Private International Law at the University of Aberdeen, Scotland. Currently, he is a CICL visiting fellow at the University of Michigan.

[1] An exception is Canada, which opened the way to the confiscation (forfeiture) of frozen Russian assets and the use of the proceeds for the reconstruction of Ukraine, the restoration of international peace and security and the compensation of victims. Sections 5.4 and 5.6 of 1992 Special Economic Measures Act. The provision on confiscation was introduced by Section 439 of the 2022 Budget Implementation Act.

[2] An exception is the European Convention on Human Rights, which, however, does not enable large-scale claims. Furthermore, Russia withdrew from the Convention as from 16 September 2022. The European Court of Human Rights remains, however, competent to entertain cases concerning actions (or omissions) that occurred up until this date.

[3] For an exception, see e.g. Mayorga.

[4] See also Happ & Wuschka. Ackermann, p. 80. For a criticism of the approach of the arbitral tribunals, see Dumberry, Krumbiegel.


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The ICC’s Arrest Warrant Against Putin: A Grenade Against Peace in Ukraine?

The ICC’s Arrest Warrant Against Putin: A Grenade Against Peace in Ukraine?

Andreas Chorakis*

Introduction

The founding treaty of the International Criminal Court (ICC), the Rome Statute, states in its preamble, “such grave crimes [under the Court’s jurisdiction] threaten the peace, security and well-being of the world.” However, the peacemaking role of the ICC is not as straightforward as its preamble describes. As a judicial and political forum, the ICC engages in storytelling. In most occasions, the story is told only from one side. In other words, it is a well-known practice of the Court to create villains and enemies of mankind. The indictments and issuances of arrest warrants by the Court have been used as forces of political pressure towards specific groups and individuals to such an extent that they impact peace processes and international justice.

Characteristic is the example of Joseph Kony, the leader of the Lord’s Resistance Army (LRA) in Uganda. In 2005, then-Prosecutor of the ICC, Luis Moreno Ocampo, decided to issue arrest warrants only against Kony and his inner circle, leaving aside any crimes committed by the Ugandan government. The arrest warrant against Kony was issued while the Juba Peace Talks were ongoing, damaging any effect of the potential peace treaty and the delivery of substantive international justice. This move was significant because, as the leader of the rebel group in Northern Uganda, the active participation of Kony in the peace process was a vital element for a successful result. However, by targeting the major opponent of the Ugandan government, the ICC kept up with its policy to prosecute the main stakeholders engaging in mass atrocities. It is also important to mention that both sides of the conflict wished to use the ICC as the main judicial institution to prosecute war crimes and crimes against humanity. While the self-referral of the Ugandan government became a catalyst to the peace negotiations, the arrest warrants against the LRA buried an effort for peace and justice by failing to contribute to a substantive delivery of criminal justice and, respectively, to prosecute all perpetrators of heinous crimes that shock the conscience of humanity.

The new target of the ICC is the President of Russia, Vladimir Putin. In March 2023, almost a year after a multi-party referral from 43 State parties to the Rome Statute, the ICC Prosecutor, Karim Ahmad Khan, proudly announced the issuance of an indictment and arrest warrant against President Putin for the crime of unlawful deportation (children) and unlawful transfer of population (children) from occupied areas of Ukraine to Russia. Hence, the construction of a new villain has started. 

Against this backdrop, it is worth examining the potential impact of Putin’s arrest warrant on the peacemaking process and the delivery of international justice in Ukraine. Legal scholarship seems to predominantly embrace the arrest warrant positively. Some scholars remark that Putin’s arrest warrant is one of the most progressive movements made by the Court, while other scholars discuss how the warrant changes the dynamics in the Russia-Ukraine War, which includes the potential involvement of the United Nations (UN) Security Council. A few scholars highlight the risks of the arrest warrant. However, there is a glaring absence of legal scholarship that explains how Putin’s arrest warrant may serve peace and justice.

I. Breaking the Throne: The Al-Bashir Case

In March 2009, then-President of Sudan, Omar Al-Bashir, had the dubious honor of becoming the first sitting Head of State to be indicted by the ICC. Similar to then-President Al-Bashir, President Putin’s status as a sitting Head of State invokes two critical articles of the Rome Statute: Article 27 (Irrelevance of Official Capacity) and Article 98 (Cooperation with Respect to Waiver of Immunity and Consent to Surrender). First, under Article 27(2), there is no immunity protection for crimes under the jurisdiction of the Court; sitting or former Heads of State cannot hide behind the immunity veil to avoid prosecution and conviction. Second, under Article 98, as the Court does not have independent resources, States must cooperate with the Court and surrender the suspect immediately. 

In the Al-Bashir case, despite the strict wording of Articles 27(2) and 98, Al-Bashir’s transfer to The Hague before the ICC judges was a tumultuous journey with no ending result. The first duty to cooperate fell on Sudan, which, due to the UN Security Council Resolution 1593 (2005), was deposed under the jurisdiction of the ICC. As the sitting Head of State, Al-Bashir had control over all enforcement mechanisms of Sudan. So, of course, Sudan could not act independently to surrender Al-Bashir. Consequently, the burden of enforcement fell to the other State parties to the Rome Statute. However, despite this obligation and the desperate cries from the Court, other African and Arab States—most of which were State parties to the Rome Statute—did not show any willingness to arrest and surrender Al-Bashir to The Hague. Even with his outstanding warrant, Al-Bashir traveled to several African and Arab States for conferences of international organizations, such as the African Union (AU) and the Arab League, without risk of surrender. For over 8 years, Al-Bashir wandered about the African continent, and no State—neither State parties nor non-party States of the Rome Statute—was willing to take the initiative to arrest him. 

Due to the other State parties’ non-cooperation, the ICC was urged to interpret itself and made a strict ruling. In May 2019, the Court issued the Judgment in the Jordan Referral re Al-Bashir Appeal, interpreting the grounds of non-cooperation concerning the laws of immunities. The Court decided that as there is no exception to the waiver of immunity for sitting Heads of State in the Rome Statute and customary international law, there is no exception to the rule of cooperation. The States that have a duty to cooperate with the Court must cooperate with the Court no matter the circumstances. The Court set a precedent to stop any other Al-Bashir cases in the future.

II. A History Repeated?: The Putin Case

The first question is the enforceability of the arrest warrant. Russia has not waived the customary law immunity of its Head of State, and as a non-party State of the Rome Statute, it has no obligation to comply with the Court’s decision. Thus, the burden of enforcement mainly rests on Ukraine and other European Union (EU) Member States in the event that President Putin is present in their territories. As noted by Amsterdam Law School Professor Sergey Vasiliev, whether or not President Putin decides to visit an EU Member State falls in the spectrum of speculation. He also notes that even prior to the warrant, President Putin had reduced his travels to destinations outside Russia. 

A further question is the impact of the arrest warrant on peacemaking and substantive international justice in Ukraine. This issue is complex. In the context of transitional justice and attribution of criminal responsibility, the ICC has been used as a forum to prosecute perpetrators of war crimes committed during active hostilities. Characteristic is the example of the Juba Agreement for Peace in Sudan, which names the Court as one of the main forums for delivering international justice as part of the peace process.

However, the Court is not a peacebuilding institution but a criminal prosecution mechanism for the most heinous crimes. The prosecutorial function of the Court is often detrimental to the peace process as it criminalizes certain parties of the conflict. The criminalization of one side of the conflict not only tarnishes the public image of those accused, but it also politically disenfranchises the individual and their constituency. Consequently, warlords, regional leaders, and armed group leaders are unwilling to enter peace negotiations as arrest warrants are pending against them, and they have been identified as international criminals. This phenomenon was seen with the Ituri conflict in the Democratic Republic of Congo and the arrest warrants against the former leader of the Union of Congolese Patriots (UPC), Thomas Lubanga Dyilo, and the former leader of the Patriotic Resistance Force in Ituri (FRPI), Germain Katanga.

Additionally, the prosecutorial role of the Court could easily jeopardize the peacemaking role of international organizations. International organizations such as the EU and the AU can be a neutral forum for peace talks as they offer flexibility and neutrality. Moreover, these organizations have developed strong mediation skills due to their enlargement process.

In the case of Ukraine, the EU can be the main negotiator and peacemaker in the Russia-Ukraine War. The EU has played the same role in the past, on certain occasions with great success, such as the Bosnian War, and on other occasions with great failure, such as the situation in Cyprus. As a mainly political organization, the EU has the capacity, the skills, and the appropriate means to provide a peaceful solution for Ukraine. However, under the pressure of the arrest warrant, the EU could not fulfill its role. Having a fear of being arrested and being transferred to The Hague, the Russian political authority would avoid any visit to EU countries or any negotiations in an EU Member State’s territory. Therefore, the EU would lose its main advantage as a neutral negotiation mediator.

Moreover, the EU would need to spend its resources to enforce the arrest warrant. Such a policy would length the gap in the relationships between the EU and Russia, prolonging the armed conflict. Thus, the arrest warrant can provoke more damage to the EU’s role than any benefit. 

Conclusion

The arrest warrant against President Putin is indeed a challenging step for the ICC. The Court has indicted one of the world’s most powerful and prominent political leaders. On the one hand, such a move could increase the Court’s appeal. On the other hand, enforcing the arrest warrant is a complex matter that demands the cooperation of key factors, such as the EU. The implications of enforcing the arrest warrant could easily create a new Al-Bashir situation, which would not only damage the image of the Court as a forum of justice but also diminish the role of important stakeholders, such as the EU, in resolving the crisis. The ICC is one the main narrators in the Russia-Ukraine War, and its approach will vividly picture the villains and the enemies of mankind. The impact of the ICC’s storytelling will remain open for consideration in any future peacemaking efforts. 


* Andreas Chorakis is a MPhil/Ph.D. Candidate at Middlesex University. He is currently a Teaching Fellow at the School of Oriental and African Studies (SOAS) University of London. He has taught modules at Middlesex University London and the University of Law, specializing in English Business Law, Civil Litigation, and Human Rights. He is developing his research in Business and Human Rights Law, International Dispute Resolution, International Criminal Law and General International Law. He is a graduate of the Geneva Graduate Institute (LL.M., 2018) and the University of Athens (LL.B., 2017).


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International Treaty Negotiations and the Status of the ‘Principle of the Common Heritage of Mankind’: The 2023 BBNJ Treaty Text

International Treaty Negotiations and the Status of the ‘Principle of the Common Heritage of Mankind’: The 2023 BBNJ Treaty Text

Nayomi Goonesekere*

This piece explores the contours of the principle of the common heritage of mankind (“the Principle”) as embodied in the recently concluded text for the BBNJ Treaty, on 4 March 2023, as well as the various provisions of the major law of the sea treaties, with a special focus on treaty negotiations.  

In 1967, Ambassador Arvind Pardo of Malta in his seminal address before the United Nations (U.N.) General Assembly stated that “the seabed and the ocean floor are a common heritage of mankind and should be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole.” This concept was affirmed in the 1970 U.N. Declaration of Principles Governing the Seabed and Ocean Floor and the Subsoil thereof beyond the Limits of National Jurisdiction. In contrast to competing frameworks, the common heritage of mankind principle (“the Principle”) has strong communitarian and natural law underpinnings. It represents the notion that certain resources which fall outside national jurisdiction and to which all states have access should not be unilaterally exploited by individual states and their nationals, corporations, or other entities. It posits that an international arrangement or regime should govern the utilization of the global commons for the benefit of all humanity. The Principle is multifaceted and its core elements entail the active sharing of benefits, conservation and sustainable development, peaceful use of resources, governance via a common management system, and the obligation to cooperate. 

The Principle’s status as customary international law is controversial and represents the conflicting interests of industrialized and developing states (often former colonies) who have disagreed about whether rights to common space resources should vest in all of mankind, rather than in who captured the resource, and whether benefits should be equitably distributed, taking particular notice of developing states’ needs. Amidst this difficulty, the Principle has developed as an undergirding part of international law, through codification activities by the U.N. with respect to the law of the sea, the governance regimes of the moon and outer space, and Antarctica. The recently adopted Biodiversity Beyond National Jurisdiction Treaty (“BBNJ,” “BBNJ Treaty,” or “High Seas Treaty”) and its negotiation history sheds new light on the thorny issue of whether the common heritage of mankind has achieved the status of customary international law. This piece argues that the near-universal support for the common heritage-based regime contained in the BBNJ Treaty adds force to the status of the Principle as custom, especially when coupled with its continuity in international law, both as a part of the 1982 U.N. Convention on the Law of the Sea (“UNCLOS”) and its 1994 Implementation Agreement, which enjoy widespread state acceptance today. 

On  March 4, 2023, diplomats representing nearly 200 countries took a giant plunge to protect the world’s oceans by endorsing the text of the BBNJ Treaty, which was later adopted by U.N. member states on June 19, 2023. The BBNJ Treaty marks the culmination of nearly 20 years of discussions regarding the conservation and sustainable use of marine areas beyond national jurisdiction, supplementing the UNCLOS. The BBNJ introduces a regime for the protection of biodiversity on the high seas and in the deep seabed, which collectively comprise nearly two-thirds of the world’s oceans. Within this agreement, the Principle that Ambassador Pardo proposed fifty-six years ago appears at the forefront of international treaty-making both through its place in the text of the BBNJ Treaty and the negotiations that preceded its finalization. 

The Principle’s inclusion in the BBNJ was not a foregone conclusion. The principle had been removed from a draft of the text as recently as May 17, 2019. However, the centrality of the concept to this new regime governing the high seas and deep seabed is highlighted by the fact that the Principle made its way back into the final text, after strong retaliation by states. During the Third Session of the Intergovernmental Conference (“IGC”) on the BBNJ, the G77, China, Myanmar, Paraguay, Philippines, Thailand, and Malawi asked that the common heritage of mankind be reflected directly in the treaty text to ensure that it was fully operationalized in the relevant parts of the agreement. They stressed that it would help promote sustainable use of the high seas, equitable sharing of benefits, and capacity building in developing countries through financial and technical support. Palestine, issuing a statement on behalf of the G77 and China, reminded the delegates: “We set as our clear goal the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This goal can only be achieved when guided by the bedrock principle of the Common Heritage of Mankind … [t]he oceans and seas beyond national jurisdiction – common to us all – are to be treasured for the benefits that shall be shared equitably with due regard for future generations.” Speaking on behalf of the African Group, Algeria observed that “adopting a new BBNJ instrument without this principle would be like giving life to a treaty of this importance without a soul, or like putting a ship in the water without a navigational instrument.” 

From the start of the BBNJ negotiations in 2004, the question of the Principle’s inclusion in the BBNJ Treaty was a key point of discussion in two respects: first, in connection with its applicability to marine genetic resources in areas located beyond national jurisdiction, i.e., the High Seas, as well as the seabed and ocean floor and subsoil thereof (“the Area”). This is because the treatment accorded to marine genetic resources is one of the core substantive provisions of the BBNJ and seeks to expressly regulate the exploitation of resources such as microorganisms, bacteria, algae, corals, and other living resources. Through the Principle’s adoption, the delegates negotiating the BBNJ sought to place controls on the utilization of marine genetic resources by stipulating fair and equitable access and benefit sharing with developing states that do not have the financial or technical capabilities to collect or sample such resources. Secondly, the BBNJ Treaty as a whole enshrines the Principle both in its preamble and its provisions governing the scope of its application by express mention in the Treaty’s language. 

As in the negotiations preceding earlier law of the sea treaties, such as the UNCLOS, the United States asked for the removal of the common heritage principle from the scope of substantive provisions dealing with the utilization of marine genetic resources. However, a number of other states, which include both industrialized and developing states, such as the G77, China, the Caribbean Community, and Indonesia supported the inclusion of the communitarian approach. The G77, China, and the Caribbean Community, who were the Principle’s strongest proponents during negotiations, also submitted written proposals which identified the Principle as one of the general principles that would inform the objectives and implementation of the treaty. By the Fifth (and final) Session of the IGC on the BBNJ delegates made significant progress on definitions of key terms related to marine genetic resources such as “access,” “collection,” and “utilization” in line with proposals submitted by developing states. Delegates also agreed to notify a clearing house mechanism for projects involving collection or sampling of marine genetic resources in areas beyond national jurisdiction. However, diverging views persisted on the establishment of mechanisms for access and benefit-sharing, monetary benefit-sharing, and intellectual property rights – echoing the United States’ views at the First Session of the IGC on the BBNJ that “such a regime [would] stifle or impede exploration, science, innovation, and entrepreneurship.”

Following these negotiations, the substantive provisions of the treaty now reflect the Principle’s core elements. For example, in regulating the exploitation of marine genetic resources, the BBNJ provides that the activities involving “material of marine plant, animal, microbial or other origin containing functional units of heredity of actual or potential value” (used in genetics and microbiology research as well as products such as biochemicals used in medicine, cosmetics, food supplements and industrial processes) “are in the interest of all states and for the benefit of all humanity” and must “tak[e] into particular consideration the interests and needs of developing states” (Article 11). The benefits – both monetary (such as payments for commercialization of products) and non-monetary (such as sharing research results or technology transfer) – arising out of activities involving marine genetic resources and their associated “digital sequence information” like DNA data must be shared fairly and equitably amongst states (Article 14). A clearing house mechanism which is to be established will allow for the monitoring of the collection and use of marine genetic resources (Article 12). The BBNJ thus creates groundbreaking access and benefit-sharing obligations that will require companies to pay for the use of marine genetic resources beyond national jurisdiction for the very first time. Under the existing Convention on Biological Diversity and its Nagoya Protocol, companies were only required to make monetary and non-monetary contributions in order to utilize genetic resources under national jurisdiction from national territories, national seas, and exclusive economic zones. 

Further, all provisions of the BBNJ are subject to the overarching principled approach that “n order to achieve the objectives of [the] Agreement, Parties shall be guided by […] (b) the principle of the common heritage of humankind which is set out in the Convention” (Article 7(b)). The Principle is also crystalized in the Preamble, which recognizes the “importance of … a just and equitable international economic order which takes into account the interests and needs of humankind as a whole and, in particular, the special interests and needs of developing states, whether coastal or landlocked.” By incorporating the Principle into key provisions that form the object and purpose of the treaty, the BBNJ drafters have ensured that any future treaty interpretation and application in respect of the BBNJ’s substantive provisions will be guided by the Principle’s overarching values, as confirmed by the customary rules of treaty interpretation enshrined in Articles 31(1) and (2) of the Vienna Convention on the Law of Treaties.

The BBNJ’s embrace of the Principle adds new evidence to the hotly debated question of whether the common heritage of mankind has achieved the status of customary international law. Indeed, Ambassador Pardo’s ultimate objective as a proponent of this Principle was for “the common heritage principle to replace freedom of the seas as the foundation of international law of the sea.” The near-universal support enjoyed by the BBNJ Treaty, which incorporates the Principle in key substantive provisions and as a guiding element of its 76 Articles, provides strong evidence that the common heritage of mankind represents customary international law with respect to areas beyond national jurisdiction. 

Briefly revisiting the negotiation and subsequent practice of the UNCLOS and its Implementation Agreement reveals that the strong natural law and communitarian underpinnings of the Principle are evident in these regimes as well. The UNCLOS’s emphasis on the importance of ensuring universal access to deep seabed mineral resources emphasizes the BBNJ and the principle of the common heritage of mankind’s continuity with existing international law. 

The Principle’s continuity in international law is specifically highlighted by the rejection of the United States’ opposition to its application to the deep seabed mining regime set out in the UNCLOS. The United States eventually did not ratify the UNCLOS and instead lobbied for the inclusion of more market-oriented features in Part XI of UNCLOS, which provides a regime for the Area, by criticizing stipulations for the mandatory transfer of private technology, the possibility of national liberation movements sharing in benefits, and the absence of assured access for future qualified deep seabed miners to promote development of these resources. Nevertheless, the UNCLOS proceeded with the inclusion of the Principle in its regime for the Area in Articles 136, 137(2) and 140(1). This is especially evident where it declares that “the Area and its resources are the common heritage of mankind” and that activities in the Area are to be carried out for the benefit of mankind as a whole while paying special attention to the interests and needs of developing countries and of peoples who have not attained independence in accordance with U.N. General Assembly Resolution 1514 (XV).

The more market-oriented features advocated for by the United States were subsequently featured in the 1994 Implementation Agreement (amending Part XI of the UNCLOS). The Implementation Agreement renders inapplicable the obligation under the UNCLOS to transfer technology to developing countries and requires the Enterprise (an autonomous operational organ of the International Seabed Authority for the development of its own deep sea mining activities in the Area) to operate through joint ventures on the basis of sound commercial principles. Yet the core provisions in the UNCLOS prohibiting sovereign claims in the Area and requiring equitable sharing of benefits were not lost as a result of these changes. Notwithstanding the modifications effected by the Implementation Agreement, the tenet that the Area and its resources are the common heritage of mankind remains as an overriding and overarching mandate guiding states in the interpretation and application of the relevant provisions of Part XI of the UNCLOS and its Implementation Agreement. Cogently, the Preamble of the Implementation Agreement reaffirms that “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction … as well as the resources of the Area, are the common heritage of mankind.” 

Prior to the BBNJ, the UNCLOS and its Implementation Agreement were the only examples of a widely accepted treaty regime specifically incorporating the Principle with respect to the Area and its resources. The customary international law status of the Principle is reinforced by the universal jurisdiction enjoyed by these treaties, as illustrated by the 154 states as well as the European Community, that have ratified the UNCLOS and its Implementation Agreement and have started implementing their provisions embodying the principle of the common heritage of mankind as custom. Moreover, it is a well-known fact that no state has unilaterally pursued deep seabed mining. All activity in the Area has been carried out under the UNCLOS and the Implementation Agreement. The consistency of this state practice has made multilateral agreements such as BBNJ and UNCLOS the “only game[s] in town.”  

All of these treaty provisions that incorporate the common heritage principle in different ways have led to the creation of specific common heritage-based regimes that cure much of the historical uncertainty associated with the Principle’s legal status. Through the BBNJ, UNCLOS, and Implementation Agreement, the common heritage of mankind has transformed from a principle to a detailed rule with respect to the law of the sea. This is further highlighted by the context in which the Principle has developed at the U.N. through international treaty negotiations, which has strengthened its influence within international law. Decisionmakers faced with applying the Principle to a legal dispute will now have considerable certainty with respect to its meaning, scope of application and legal status. The broad manner in which the Principle has been adopted in the recent BBNJ regime will likely extend its influence to future management of common space resources such as regional fisheries and international environmental protection. 

A perusal of international treaty negotiations which have impacted a large part of the world’s oceans – the seabed and the ocean floor beyond national jurisdiction as well as the high seas and deep seabed – makes it evident that the principle of the common heritage of mankind is now entrenched in the regime for the international commons. The state practice that will follow the adoption of the BBNJ Treaty will add further certainty to the customary international law status of the principle. 


*Nayomi Goonesekere is a disputes associate based in London. She holds an LLM in International and Comparative Law from The George Washington University Law School as a Thomas Buergenthal Scholar. She has served as Associate Legal Officer and Judicial Fellow at the International Court of Justice.


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Intellectual Property and “The Lost Year” of  COVID-19 Deaths

Intellectual Property and “The Lost Year” of COVID-19 Deaths

Madhavi Sunder and Haochen Sun*

Editors’ Note: Although HILJ Online: Perspectives typically publishes short-form scholarship, we occasionally publish exceptional longer pieces such as this one. 

Introduction

Protecting intellectual property (IP) is a question of life and death.[1] COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021.[2] However, most of the benefits of this life-saving technology went to high- and upper-middle-income countries.[3] Despite 10 billion vaccines being produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to an insufficient supply of vaccines and inequitable access during the critical first year of vaccine rollout, most notably in low-income countries that lacked the ability to buy or manufacture vaccines to save their populations. IP is implicated in the choked supply of COVID-19 vaccines in low-income countries, particularly during the crucial first year of the vaccines’ availability in 2021.[4]

This Article first diagnoses how the IP system bears some blame for a “lost year” of COVID-19 deaths and devastation in 2021. While the promise of monopoly rights in breakthrough technology helps incentive life-saving innovation, holding life-saving knowledge hostage in corporate monopolies to maximize private profit has tragic consequences. This Article diagnoses a number of causes for the inequitable distribution of life-saving COVID-19 vaccines, from misguided reliance on IP rights and voluntary mechanisms to share knowledge and vaccines, to the rise of vaccine nationalism and vaccine diplomacy, to unequal global IP institutions that disenfranchise low-income countries and continue to reproduce colonial era dependency by poor countries on high-income nations’ for life-saving technologies. Ultimately, unequal access to life-saving vaccines during the COVID-19 pandemic wreaked untold havoc on human lives and the global economy. Glaring inequity in global access affected rich countries, as well, as variants emerged in poorly vaccinated parts of the world and spread worldwide, prolonging the health and economic effects of the pandemic.

In response to the diagnosis, this Article develops cures to promote a timely and equitable supply of critical medicines in the next pandemic. As the WHO draft Pandemic Treaty recognizes, there is a critical “need to establish a future pandemic prevention, preparedness and response mechanism that is not based on a charity model.”[5] This Article suggests several reforms to prevent such inequity in the next pandemic, including delinking vaccine development that depends on public funding from monopoly rights in technology, enhanced legal requirements to share publicly funded technologies in pandemic times, and investment in technology transfer hubs and local vaccine manufacturing capacity in low- and middle-income countries. We further suggest reforming the IP system to create a robust global technology transfer mechanism and to stimulate faster sharing of patented medicines and vaccines.

I. “The Lost Year” of COVID-19 Deaths

Paradoxically, IP may be partly responsible for hundreds of thousands of lives lost in 2021 due to insufficient supply of vaccines and inequitable access during the critical first year of vaccine rollout, most notably in low-income countries that could not buy or manufacture vaccines to save their populations. A mathematical modeling study published in The Lancet in September 2022 found that 45 percent of deaths in low-income countries could have been averted if just 20 percent of the most high-risk patients in those countries had been vaccinated in 2021—the goal initially set in April 2020 by the COVID-19 Vaccines Global Access (COVAX) facility to ensure equitable access to vaccines upon vaccine availability. As The Lancet study notes regrettably, however, “[d]ue to vaccine shortfalls, these targets were not achieved by the end of 2021,”[6] and substantial numbers of deaths in the poorest nations were not averted as in rich countries.

What accounts for the COVID-19 vaccine shortfall in the poorest countries during the critical first year of the availability of the COVID-19 vaccine? Despite the benefits of vaccine development and distribution to high- and middle-income countries, 2021 proved to be “the lost year” during which hundreds of thousands of lives in low-income countries could have been saved, virulent variants of COVID-19 could have been stemmed, and the length of the global pandemic could have been shortened. The Lancet study, while acknowledging “the considerable uncertainty inherent in estimating vaccine impact,”[7] concludes that “more lives could have been saved if vaccines had been distributed more rapidly to many parts of the world,” which, going forward, requires that “[i]ntellectual property…be shared more quickly in the future, with more open technology and knowledge transfer surrounding vaccine production and allocation.”[8] IP was hardly the only roadblock to a global vaccination campaign in the pandemic response. The Lancet study identifies other critical factors that contributed to the inequitable distribution of vaccines, including misinformation, vaccine hesitancy, insufficient vaccine donations, and poor distribution and delivery infrastructure. But make no mistake: for better and for worse, in the world’s response to the COVID-19 pandemic, IP looms as a central figure.

The role of IP in this crisis is hotly debated. Pharmaceutical companies highlight the role IP played in incentivizing the development of COVID-19 vaccines while downplaying IP’s role in mediating manufacture, access, and distribution.[9] There remains considerable debate about IP’s positive and negative role in pandemics. Is IP’s role limited to developing breakthrough drugs but not their distribution? We readily accept IP’s goal to promote efficiency, but does IP also have an obligation to promote equity? We should pay attention to issues of distributional justice in IP law.[10] This Article seeks to broaden our understanding of the implications of IP in life-saving technologies, from vaccines to diagnostics and therapeutics, during a global pandemic.

While the development of COVID-19 vaccines is a success story, the distribution of COVID-19 vaccines is not. Of 7 billion vaccines administered globally by late 2021, approximately a year after the vaccines were developed, over 70 percent of shots had gone to high-income countries. Less than 4 percent of people in low-income countries received the shot by the end of 2021. In low-income African countries, including Nigeria, Mali, and Uganda, a mere 1 percent of the population had been vaccinated a year after the vaccines were rolled out. Even by early January 2022, a mere 8.5 percent of people in low-income countries had been vaccinated with at least one dose, starkly contrasting to 60 percent vaccinated in high-income countries.[11]

What happened? Despite the best-laid plans in 2020 to equitably distribute vaccines to first inoculate the most at-risk patients around the world in all countries, namely medical providers and the elderly through pre-pledged donations by rich countries, when the critical time came, wealthy country governments instead cut to the front of the line, buying up doses from vaccine producers such as Moderna and Pfizer, often enough to inoculate their populations many times over. Vaccine nationalism became the rule. And because the vaccines were protected by IP supply was limited to a few authorized manufacturers, supply could not keep pace with demand, and low-income countries were left empty-handed. Rich countries pledged donations, but often, the donations failed to materialize or arrived just as the donated vaccines were set to expire.[12] The result was vaccine apartheid. In the words of U.N. Secretary-General António Guterres, “we passed the science test” but received “an F in ethics.”[13]

II. The Diagnosis: Intellectual Property’s Role in the Covid-19 Pandemic

A. Vaccine Development: Fruits of Public-Private Partnership, But Who Calls the Shots?

The development of revolutionary COVID-19 vaccines has been hailed as an IP success story. Pharmaceutical companies like Moderna and Pfizer argue that patents and other IP protections in their groundbreaking mRNA technology were essential to their success. The real story of the successful development of COVID-19 vaccines is more complex. The timely development of the vaccines was not the result of private companies going it alone but instead the fruit of critical public-private partnerships between governments and pharmaceutical companies, with governments investing billions of dollars in research and development, clinical trials, and advanced purchase contracts promising to buy hundreds of millions of doses. These investments significantly de-risked COVID-19 vaccine development by private companies, thus qualifying the usual claim by private corporations to monopoly control in their patented inventions.

In the United States, the Trump Administration launched “Operation Warp Speed” in early 2020, a public-private partnership to hasten the development, manufacturing, and distribution of effective COVID-19 vaccines. Operation Warp Speed paid $14 billion in taxpayer dollars to several private companies racing to develop a cure for the pandemic. Operation Warp Speed funds, plus additional American taxpayer funding, included $1.5 billion for Johnson & Johnson, $1.2 billion for Oxford-AstraZeneca, and $2.48 billion for Moderna. These funds were for research and development, including costly clinical trials and advance purchase orders.[14] While Pfizer did not receive Operation Warp Speed funding for research and development, it did receive $2 billion from the Operation Warp Speed budget for an advance-purchase order to manufacture 100 million doses of a COVID-19 vaccine for use in the United States when the vaccine was shown to be safe and authorized for use by the FDA.[15] Companies like Moderna also benefited enormously from publicly funded research supported by the National Institutes of Health (NIH).[16]

Public-private partnership is the rule, not the exception, when it comes to vaccine development. As leading public health scholar Lawrence Gostin writes, “[t]he intellectual property system does not generally incentivize companies to produce vaccines or medicines intended for small or uncertain markets.”[17] Developing new vaccines can cost billions of dollars and take several years, with no promise of return on investment, especially for diseases primarily afflicting populations in low-income countries.[18] Focusing on cures to the legal innovation infrastructure for pandemics, Gostin makes the case to “overcome market disincentives through targeted financing and partnerships.”[19] Decades of experience well before the pandemic teach that we cannot rely on IP alone for vaccine production, which only incentivizes market-driven innovation. It is no surprise that in the context of COVID-19, it was ultimately government funding that got Moderna over the finish line.[20]

The breakthrough COVID-19 vaccines demonstrate the critical role of public-private partnerships in vaccine development. Patents incentivize pharmaceutical companies to innovate certain drugs that serve those who can afford to pay. But publicly-funded university and government research, alongside public-private partnerships, are key for vaccines that address uncertain diseases and often in low-resource settings. Just as private companies like Moderna had invested large sums in their research for years before the pandemic, the NIH had invested over $17 billion in vaccine research between 2000 and 2019, which was critical to the breakthrough COVID-19 vaccines.[21] A study of the funding for the Oxford-AstraZeneca vaccine, which committed to manufacture 1.3 billion doses for low-income countries, concluded that “public and charitable funders provided the majority of identifiable funding to the University of Oxford towards the R&D of the Oxford–AstraZeneca vaccine…which may have significant implications for the global discourse around vaccine nationalism and COVID-19 health technology access.”[22]

Recognizing the critical role of public funding is a first step to understanding the need for increased governmental authority over how these technologies are shared, licensed, and ultimately distributed. A critical problem, however, is that though COVID-19 vaccines were the fruit of significant public investment, this taxpayer-funded innovation is trapped in corporate monopolies that allow private companies to call all the shots for this technology. As we explore further, even though companies like Moderna announced they would not enforce their patents on the mRNA vaccine,[23] generic companies were unable to manufacture the vaccines themselves for fear of violating Moderna’s other IP rights and because the generic producers lacked critical “know-how” from Moderna, which still held essential knowledge of how to safely and effectively make the vaccines under lock and key in the form of tacit knowledge and trade secrets. Companies like Moderna and Pfizer refused to share this critical knowledge beyond a handful of licensed manufacturers, leading to an undersupply of vaccines during critical months in 2021 when billions more doses were needed to vaccinate vulnerable populations in rich and poor countries. Worse, governments seem to have thrown away their shot to compel companies to share technology with more manufacturers to ramp up production of life-saving shots. Now, we continue analyzing what went wrong during the COVID-19 pandemic, turning next to the colossal failure to distribute COVID-19 vaccines equitably.

B. Vaccine Distribution: Failure of Philanthropy

Even before effective COVID-19 vaccines were developed in late 2020, global health experts predicted a frenzied global race to procure a limited supply of vaccines that would leave low- and middle-income countries waiting at the back of the line. Two Western leaders of world health organizations imagined a way out of this dilemma. In early 2020, Richard Hatchett, director of the Coalition for Epidemic Preparedness Innovations, and Seth Berkley, the head of the Vaccine Alliance, or Gavi, brainstormed and established the COVID-19 Vaccines Global Access (COVAX) facility.[24] COVAX would have rich countries pledge funds to pool vaccine purchases targeted to low-income countries. The goal was for COVAX to pool funds from rich countries to enable COVAX to purchase 2 billion vaccine doses to deliver to low- and middle-income countries. If all went according to plan, COVAX would procure enough vaccines to ensure that 20 percent of the most vulnerable citizens in all countries, namely medical workers and the elderly, were vaccinated by the end of 2021, regardless of a country’s wealth.

Ultimately, COVAX did not achieve even half its goal,[25] and low-income countries fell tragically behind in vaccinations. Rich countries rushed to make advanced purchases of shots directly from vaccine producers like Moderna and Pfizer, with some countries, like Canada, procuring enough doses to vaccinate their population many times over.[26] The well-planned vaccine diplomacy COVAX leaders imagined gave way instead to vaccine nationalism and hoarding.

Companies like Moderna and Pfizer, which closely held critical knowledge about mRNA vaccine production through patents and tacit knowledge or “know-how,” licensed only a handful of manufacturers to produce vaccines. The limited supply raised the prices of the vaccines, and the drug companies catered almost exclusively[27] to wealthy countries and regions such as the United States, the EU, and Israel. These same companies had no market incentive to ramp up manufacturing for shots for low-income countries who could not afford to pay much more than the manufacturing price. There was little left over from a limited supply of vaccines for COVAX to purchase on behalf of low-income countries. High-income countries did not donate to COVAX as promised. Left underfunded and undersupplied, COVAX could not compete to secure vaccines. Worse still, leaders of African and other low-income countries were told they could not seek to procure doses directly from developers but that they had to go through COVAX.

Many have opined on why COVAX failed. Public health scholars Matt Kavanagh and Renu Singh have offered a scathing critique of COVAX’s “demand-side model” built on private property and market-based tools.[28] Kavanagh and Singh blame COVAX’s reliance on the status quo concerning strong IP rights for corporations.[29] This market-based approach ignored the public investment in vaccine development and the critical public interest in equitable vaccine access to end a pandemic where no one is safe unless everyone is safe. From the start, the parties at the table leading the COVAX initiative, including the Bill and Melinda Gates Foundation, insisted that pharmaceutical companies should retain strong IP rights in vaccines,[30] imposing no obligations on companies to share their knowledge and relying instead on the charity of rich countries to pool funds to purchase IP-protected vaccines for the poor, or on private pharmaceutical companies to transfer knowledge voluntarily.

Neither happened. Ultimately, waiting for voluntary funding (by wealthy countries) or voluntary sharing of technology (by pharmaceutical companies) was in vain. Most notably, because COVAX did not alter the status quo rules of IP, companies like Moderna and Pfizer had no market incentive, nor were they legally compelled to license their technologies to more manufacturers to increase global vaccine supply.

C. Failure of Technology Transfer of Critical Vaccine Production “Know-How”

The pandemic also demonstrated corporate actors’ failure to voluntarily share critical trade secrets required to scale up the production of vaccines. Notably, even more than patents, trade secrets in the form of corporate “know-how” and “show-how” with respect to how to make safe and effective vaccines proved to be critical technology at play during the COVID-19 pandemic. Unlike in earlier public health crises, such as the AIDS epidemic of the late 1990s and early 2000s, compulsory licensing of patents was not enough to facilitate the production of COVID-19 vaccines by generic producers. Effective and safe production of vaccines, in particular the new mRNA vaccines produced by Pfizer and Moderna, were not easily replicated with the patented formula alone but required affirmative sharing of corporate know-how and show-how in order to make the vaccines safely and effectively. But companies such as Pfizer and Moderna did not voluntarily share this IP with the technology access pool created by the World Health Organization known as C-TAP[31] or with potential vaccine manufacturers in low- and middle-income countries. The failure of companies to voluntarily share this know-how and of governments to mandate sharing proved deadly.

In the end, waiting for voluntary funding or donations of doses (by wealthy countries) or voluntary sharing of technology (by pharmaceutical companies) was in vain. Notably, COVAX and C-TAP, premised on voluntary sharing, did not alter the status quo rules of IP. Companies like Moderna and Pfizer had no market incentive, nor were they legally compelled to license their technologies to more manufacturers to increase global vaccine supply. A critical lesson of COVAX and C-TAP is that in the early months of a pandemic, increasing the supply of vaccines is only accomplished by compelling technology transfer by companies holding the secrets to making life-saving vaccines. We discuss proposals for spurring technology transfer of know-how in Part IV.

III. The Failure of Institutions: The Rise and Demise of the WTO IP Waiver

Equitable access to medicines in a pandemic is both a human rights issue and a pragmatic one: no one is safe unless everyone is safe. We now turn to an alternative approach to global public health in pandemic times outside of the IP system. Publicly funded vaccines and other life-saving technologies, such as masks, diagnostic tests, and drug treatments, are necessary goods that must be made widely available in pandemic times to save human lives and to end a pandemic. An alternative approach spearheaded by countries in the Global South rejects monopoly rights on life-saving knowledge during the emergency of a pandemic, focusing on the need to scale up equitable supply and distribution of goods massively. Thus far, this alternative has failed, partly due to structural disempowerment in yet another global governance institution focusing on IP: the World Trade Organization (WTO).

In contrast to the philanthropy approach of COVAX that would leave IP protections in place, in the WTO, low- and middle-income countries led an alternate effort to waive IP rights to enable global manufacturers to scale up vaccine production to get desperately needed vaccines in Africa and other poor regions. In response to the exceptional circumstances of the COVID-19 pandemic, South Africa and India submitted an IP waiver request to the WTO in October 2020.[32] They proposed waiving the implementation, application, and enforcement of Sections 1, 4, 5, and 7 of Part 2[33] of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).[34] The waiver proposal was unprecedented in the history of IP protection because it was intended to trigger a moratorium on protecting IP rights, including copyright and related rights, industrial designs, patents, and undisclosed information. Once adopted, the waiver would remain until widespread vaccination was in place globally and most of the world’s population had developed COVID-19 immunity.[35]

In their submission, South Africa and India further asserted that IP rights were a major cause of the manufacturing and supply problems with diagnostic kits, personal protective equipment, ventilators, medicine, and vaccines.[36] While some countries were in a position to overcome supply issues by manufacturing their medical products, many developing or least-developed countries (LDCs) were not and, therefore, would remain extremely vulnerable without the rapid scaling up of global production.[37] Therefore, they argued that an unprecedented solution was needed to address the impact of a pandemic that could not be effectively contained without expeditious access to affordable medicines and vaccines.[38]

World leaders, policymakers, and scholars had high hopes for the IP waiver proposal, with more than 120 countries supporting it as of May 2021.[39] Most notably, American President Joe Biden issued a statement that month outlining his support for the proposal.[40]

Proponents of the waiver claimed it was a necessary response to the COVID-19 crisis.[41] Just as the AIDS crisis prompted the Doha Declaration on the TRIPS Agreement and Public Health in 2001, the scale of the COVID-19 pandemic necessitated an immediate and substantive response.[42] Since December 2020, when the United States Food and Drug Administration approved the first COVID-19 vaccine, vaccine inequity has prolonged human suffering in many developing countries. While the United States and the United Kingdom had already vaccinated roughly half their populations by early May 2021, vaccination rates in developing economies were significantly lower,[43] with India having vaccinated just 9.4 percent of its population and Asia and Africa’s overall vaccination levels standing at just 4.4 percent and below 1 percent, respectively.[44] Worse still, owing to the extortionate prices charged by pharmaceutical companies, governments worldwide purchased COVID-19 vaccines at prices up to 24 times the estimated cost of production.[45]

Despite the widespread support noted above, the European Union (EU) and Big Pharma vehemently opposed the IP waiver. A much smaller group of high-income countries contested that IP played a significant role in stunting the manufacture and distribution of vaccines in 2021. At a TRIPS Council meeting, the EU asserted that “there is no indication that IPR issues have been a genuine barrier to COVID-19-related medicines and technologies.”[46] Pharmaceutical companies acknowledged that IP protection had been important in incentivizing them to develop COVID-19 vaccines. However, they disputed that IP had any role in the failed distribution effort. In expressing his objections to the IP waiver, Pfizer’s CEO claimed that while a sizeable company like his would continue to invest in science, he was unsure “if the same is true for the thousands of small biotech innovators that are dependent on accessing capital from investors who invest only on the premise that their intellectual property will be protected.”[47]

In June 2021, the EU submitted a counterproposal to the TRIPS Council, insisting that countries take full advantage of the compulsory licensing scheme for patents under the TRIPS Agreement. One month after the postponement of its Twelfth Ministerial Conference in November 2021, the WTO held a series of informal negotiations with the EU, India, South Africa, and the US at the ministerial and technical levels. The result was the “Quad” proposal, which adopted the compulsory licensing measures proposed by the EU and limited the waiver effects to vaccines alone, as requested by the United States.[48]

Based on the Quad proposal, the WTO Ministerial Conference adopted the Ministerial Decision on the TRIPS Agreement[49] in June 2022. The Decision clarifies, among other things, three primary existing flexibilities allowing developing countries to invoke compulsory licensing of patented technology under TRIPS Article 31 to contain the COVID-19 pandemic. First, eligible developing countries can expeditiously issue compulsory licensing orders to use patents (including patents on medical ingredients and production processes) necessary for producing COVID-19 vaccines without passing formal laws[50] and without obtaining permission from the patent holders.[51] Second, any eligible developing country can export COVID-19 vaccines produced through compulsory licensing to another eligible developing country. Third, eligible developing countries can also remunerate affected patent holders in lesser amounts because “the humanitarian and not-for-profit purpose” of vaccine production must be considered.[52] The Ministerial Decision also clarifies the ability of countries to access otherwise protected regulatory data under TRIPS 39.3 to promote expeditious vaccine approvals.[53]

The Ministerial Decision officially tolled the death knell of the IP waiver proposal because it does not waive the implementation of any IP protection provision under the TRIPS Agreement.[54] Lengthy negotiations lasting for nearly one year and eight months resulted only in clarifications of pre-existing TRIPS flexibilities that developing countries were already entitled to capitalize on, even without such clarifications. The waiver was limited to vaccines and did not include diagnostics and treatments, as India and South Africa initially proposed. Notably, the Ministerial Decision is limited to technology covered by patents and does nothing to address the most difficult technology transfer challenges to scaling up vaccine production, which requires access to know-how and show-how not covered by patents. Finally, as it applies only to the COVID-19 pandemic, the Decision does not proactively deal with public health emergencies caused by future pandemics.

IV. The Cure: Spurring Technology Transfer to Promote Supply, Access, and Agency

It is critically important to go beyond a diagnosis of what went wrong to develop cures to promote timely and equitable access to critical medicines necessary to save lives in the next pandemic. Given the failure of voluntary mechanisms during the COVID-19 pandemic, reforms proposed and canvassed here focus on mechanisms to spur technology transfer, including critical know-how and show how low- and middle-income country manufacturers can build capacity now so in the event of a future pandemic they may be self-sufficient and ready to produce vaccines and essential medicines themselves.

In particular, we recommend the following:

  • Strengthen technology transfer mechanisms, including modifying the patent system to require greater disclosure of tacit knowledge and know-how related to the manufacturing of vaccines, diagnostics, and therapeutics; placing knowledge-transfer obligations on patentees receiving significant public funding through ex-ante contracts; and strengthening Article 66.2 of the TRIPS Agreement to ensure that developed countries fulfill their obligation to promote technology transfer to least-developed countries;
  • Establish a global mechanism for monitoring and assessing technology transfer to measure whether developed countries are effectively incentivizing technology transfer to least-developed countries;
  • Foster local manufacturing capacity, including facilitating the sharing of tacit knowledge and financing regional technology transfer hubs; and
  • Facilitate faster sharing of medicines and vaccines protected by patents by amending TRIPS flexibilities to enable the expedited export of medicines and vaccines from countries with manufacturing capacity to those without during public health crises. Amendments must address the complexities and limitations of the existing compulsory licensing system and make it more effective and efficient.

Technology transfer cannot wait until the next pandemic. This process must begin to help scale up local production capacity in Africa and other low- and middle-income regions through funding and knowledge sharing with regional technology transfer hubs, including mRNA technology transfer hubs.

A. Strengthening Technology Transfer Mechanisms

Enhancing mechanisms of technology transfer is key to equitable access and distribution of vaccines during a pandemic. Peter Lee has described the current paradox: though patents are premised on a quid pro quo in which inventors receive exclusive rights in exchange for disclosing a novel invention, disclosure rules under current American patent rules exclude from protection tacit knowledge and critical know-how that is necessary for those skilled in the art to manufacture the vaccines. Lee suggests modifying the patent quid pro quo model to require greater tacit knowledge disclosure from patentees, for instance, by resurrecting the best mode requirement and imposing an ongoing requirement to disclose information related to commercializing technologies, particularly for vaccines, diagnostics, and therapeutics.

Lee also suggests that public institutions should place knowledge-transfer obligations on patentees receiving significant public funding, such as biopharmaceutical firms holding patents on COVID-19 vaccines.[55] Sapna Kumar and Ana Santos Rutschman similarly propose an ex-ante approach, arguing that governments and non-governmental funders should integrate pandemic planning into contracts used to fund medical research, for example, through dormant licenses that would be triggered in the event of drug shortages in a pandemic. The licenses would require recipients of public funding to assure that any resulting drug will be made available in sufficient quantity and at accessible prices. Recipients would also agree to share technology and know-how with a qualified third-party manufacturer in exchange for payment of royalties. As Kumar and Rutschman argue, by acting proactively, governments can reduce drug shortages during future pandemics and save lives.[56]

David Levine and Josh Sarnoff argue that many mechanisms already exist to allow governments to compel trade secret holders to share know-how in public health emergencies, including the Defense Production Act under existing federal law in the United States. Levine and Sarnoff argue that the primary obstacle to mandatory disclosure of trade secrets is not law—even TRIPS “does not prohibit governments from compelling trade secret rights,” they write—but rather, political will. Like Kumar and Rutschman, Levine and Sarnoff advocate for reasonable compensation to trade secret holders for compelled disclosure to promote access in some cases. In addition, they propose that sharing trade secrets may be encouraged with legislative nudges and incentives.[57] Others, like Kavanagh and Singh, advocate for internationally binding commitments to share know-how, including mechanisms to encourage compliance with a built-in expectation of national self-interest.[58]

Legal mechanisms to facilitate sharing are critical for vaccine distribution and also for vaccine development. Taking a different tack on the issue of technology transfer, Laura Pedraza-Fariña argues for the creation of legal infrastructure that allows and encourages sharing knowledge among researchers across multiple disciplines to nurture the “boundary-crossing innovation” necessary to cure complex diseases.[59]

B. Establish a Global Mechanism for Monitoring and Assessing Technology Transfer

In addition to these suggestions, we urge that the technology transfer mechanism in the TRIPS Agreement itself also be strengthened. Article 66.2 of the TRIPS Agreement states that “[d]eveloped country Members shall provide incentives to enterprises and institutions in their territories to promote and encourage technology transfer to least-developed country Members to enable them to create a sound and viable technological base.” The 2001 WTO Ministerial Conference and subsequent Doha Declaration made it clear that this provision imposes a mandatory obligation on developed countries.

Nevertheless, the WTO has yet to establish a mechanism for monitoring and assessing whether and how developed countries have fulfilled this treaty obligation. In 2003, the TRIPS Council set up an Article 66.2 reporting system that requires developed countries to submit detailed reports every three years and annual reports updating them.[60] However, the system lacks sufficient teeth to ensure developed countries’ compliance with their Article 66.2 obligation.[61] Submitting a report does not necessarily mean that a developed country’s self-assessment has rendered it compliant with Article 66.2. For instance, despite the increase in annual reports submitted, many of the programs reported by developed countries did not even target LDCs.[62] Therefore, the transfer of technology from developed countries to LDCs has been described as “lackluster” by both least-developed member states and WTO officials.[63]

Still lacking is a global mechanism that can evaluate two critical aspects of the Article 66.2 obligation: first, whether a developed country has taken effective actions to incentivize technology transfer to an LDC and, second, whether such actions have contributed to the growth of a technological base in the LDC concerned. It is incumbent upon the WTO to reshape the reporting system operated by the TRIPS Council into a global mechanism capable of monitoring and critically assessing whether developed countries have met these two aspects of their obligation and of making recommendations on any necessary follow-up actions. A major focus of this mechanism would be the transfer of technologies that could boost the least-developed countries’ capacity to manufacture medical products.[64]

The COVID-19 pandemic has demonstrated the urgent need to establish such a global mechanism, thereby providing the international community with a prime opportunity to pressure the WTO and developed countries to adopt reform measures and accept the mechanism to stimulate the transfer of soft and hard technologies.[64] The transfer of soft technologies, such as substantial know-how to LDCs, is necessary to boost the production of COVID-19 vaccines because vaccines are complex biological products heavily dependent on specific manufacturing processes and practices often not disclosed in a patent.[66] For instance, it is very difficult to replicate biological processes involving recombinant proteins from the information contained in patents alone, as “the high degree of process dependence in the cell-mediated synthesis of biologics” makes it “quite possible that an attempt to make the patented protein by a different method will yield a product that lacks the asserted utility of the claimed invention.”[67] The cost and effort of reverse-engineering originator firm manufacturing processes have contributed to a history of delays in the entry of biosimilars into the market. In one recent case, Inovio even claimed in a court filing that its plan to expand the manufacturing scale of the experimental COVID-19 vaccine was being blocked by a supplier’s refusal to share critical manufacturing information.[68]

C. Fostering and Financing Local Manufacturing Capacity

The reliance of much of the Global South on imports proved deadly. Going forward, we must move from a dependency model to build capacity for local vaccine production in critical regional hubs around the world, including Latin America, Asia, and Africa. William Fisher, Ruth Okediji, and Padmashree Gehl Sampath outline a multi-step strategy to foster local production capacity for vaccines and pharmaceuticals in the Global South, which includes building domestic legal infrastructure to regulate and support local drug production, government purchasing of medicines and vaccines, technology transfer through apprenticeships, robust quality-control, and capitalizing on the economic and political power of regional economic communities in Africa, Latin America, and Asia.[69]

Efforts have begun to establish WHO-supported technology transfer hubs in key locations in Latin America, Asia, and Africa. The African Union has set a goal to build capacity to locally produce 60 percent of the continent’s vaccine needs by 2040. This is a hefty goal, as Africa currently imports 99 percent of its vaccines. The WHO is supporting an mRNA technology transfer hub at Afrigen in Cape Town, South Africa, and the hub has had significant initial successes.[70] However, securing financing for the hubs presents a significant hurdle. The WHO is struggling to raise the significant finances necessary to establish other planned hubs in countries such as Brazil, India,[71] and Nigeria.[72] In the meantime, access to critical mRNA know-how, held by Moderna and Pfizer, continues to be elusive, as these firms have thus far failed to offer significant support to the initiatives.[73]

The United States and other developed countries must give robust “financial and logistical” support to regional tech transfer hubs in Africa and elsewhere now. As Pedraza-Fariña explains,  “know-how transfer, in particular when new technologies are involved, is notoriously tricky” and requires “learning-by-doing … [that] can only happen through immersive training” through, for example, regional tech-transfer hubs. Countries such as Indonesia, Thailand, and Vietnam are “some of the only lower-income countries that are now producing COVID-19 vaccines,” she writes, because of the positive spillovers of having participated in an influenza vaccine technology transfer program spearheaded by the WHO in 2005.[74] Critical investment in technology transfer hubs in diverse regions in the Global South is needed so countries can build their knowledge and capacity now for success in future pandemics.

D. Facilitating Faster Sharing of Medicines and Vaccines through TRIPS

The TRIPS Agreement should create a new global mechanism that can effectively facilitate faster export of patented medicines and vaccines from a country with adequate manufacturing capacity to another without such capacity when a public health crisis occurs. Article 31bis of the TRIPS Agreement was designed to meet this goal. It allows a member state that cannot manufacture patented medicines or vaccines under compulsory licensing to import them from another member state. However, the compulsory licensing system has proved to be fatally ineffective, not only because of the complexity, length, and cost of its undertaking process but also because of the burdensome requirements, challenge of recovering expenditures, and resulting lack of incentives for generic manufacturers.[75] For example, the exporting country must ensure that generic drugs are exported only to the importing country, are easily identifiable in color or shape as generic drugs, and are manufactured only in the specific amount necessary to meet the importing country’s requirements.[76] Achieving economies of scale in countries with little manufacturing capacity presents further obstacles.[77] Therefore, the Article 31bis mechanism remains in limbo because few countries have revised their domestic laws to activate it.[78] Since its introduction in 2003, the mechanism has been used only once.[79] That sole instance involved collaboration between Rwanda as the importing country and Canada as the exporting country for the antiretroviral drug Apo-TriAvir. It took the Canadian generic company Apotex three years to supply this much-needed medicine, which is much too slow in the context of a pandemic.[80]

The COVID-19 pandemic also highlighted serious problems with the Article 31bis mechanism. In spring 2021, Biolyse, a Canadian pharmaceutical company, attempted to take advantage of compulsory licensing to provide 15 million doses of the Johnson & Johnson COVID-19 vaccine to Bolivia, where only around 5 percent of the population had thus far been vaccinated. However, the Canadian government refused to grant a compulsory license to allow Biolyse to manufacture the vaccine using Johnson & Johnson’s patent.[81] Similarly, in Spring 2022, in the face of vehement opposition from Pfizer, the Dominican Republic declined to grant a compulsory licensing order to manufacture Paxlovid, Pfizer’s patented medicine for treating COVID-19 infection.[82]

Although the Ministerial Decision seeks to accelerate the compulsory licensing process to enable developing countries to contain the COVID-19 pandemic, it has not fixed any major problems with the Article 31bis mechanism. The export permit that the Decision has introduced is virtually meaningless. It allows an eligible developing country to export vaccines that it produces to another eligible country. However, because China and India, the two developing countries with the greatest vaccine manufacturing capacity, are excluded from being eligible beneficiaries of the Decision, the export permit is infeasible in practice. No other developing country can swiftly manufacture vaccines to meet the public health needs of another developing country.

Moreover, because the Decision applies only to the production of COVID-19 vaccines, no eligible developing country can avail itself of compulsory licensing to offer COVID-19 diagnostics and therapeutics.[83] In the last quarter of 2022, there was an oversupply of COVID-19 vaccines internationally.[84] What is badly needed are testing tools and treatment medicines in the many countries where people are vaccinated yet still become infected with COVID-19.

Against this backdrop, the international community should endeavor to create a global mechanism to facilitate faster sharing of patented medicines and vaccines to deal with the COVID-19 pandemic and any future public health crisis. We must enhance compulsory licensing to achieve the faster export of medicines and vaccines.[84] In the case of chronic diseases such as HIV/AIDS, people could wait years for effective medicines exported by countries that can take advantage of the Article 31bis mechanism. However, most public health crises are caused by highly transmissible viruses, creating an urgent need for life-saving medicines and vaccines.

Conclusion

It is time to revisit the toxic marriage between IP and health: in sickness and in health, till death do us part. The tradeoff–breakthrough innovation in exchange for monopoly rights that raise prices and keep critical know-how under lock and key–does not work in pandemic times. Vaccines, the workhorse tool for saving lives and ending a pandemic, are often the result of public-private partnerships, as markets alone do not sufficiently incentivize these investments. Given significant public investments in vaccines, it is not appropriate that the know-how underlying these technologies should be trapped in private monopolies, with pharmaceutical companies calling all the shots. Sharing life-saving technologies underlying pandemic vaccines is critical to boosting vaccine production and promoting equitable access to vaccines in a timely fashion. Developing legal mechanisms for mandatory technology transfer in publicly-financed vaccines is critical now to help build local manufacturing capacity in the Global South so low- and middle-income countries are not again trapped in a state of dependence on the charity of the Global North. In a global pandemic, no one is safe unless everyone is safe. Widespread and equitable vaccine access is a moral imperative because it saves millions of lives. Equitable vaccination is also key to stemming new variants and promoting the global economy’s well-being. As late public health experts Paul Farmer and Sister Simone Campbell wrote in May 2021, “Only a people’s vaccine that is accessible to all will end the pandemic.”[86]


* Madhavi Sunder is the Frank Sherry Professor of Intellectual Property Law at the Georgetown University Law Center. Haochen Sun is a Professor of Law at the University of Hong Kong Faculty of Law. The authors are grateful to Bill Alford, Mark Wu, and Peter Yu for comments, as well as to students at Harvard Law School and Texas A&M University Law School. Special thanks to Eva Bishwal for excellent research assistance.

[1] See Haochen Sun, Technology and the Public Interest 156-58 (2022).

[2] Oliver J. Watson et al., Global Impact of the First Year of Covid-19 Vaccination: A Mathematical Modelling Study, 22 The Lancet Infectious Diseases 1293 (2022).

[3] Id.

[4] See generally, Matthew M. Kavanagh, Lawrence O. Gostin & Madhavi Sunder, Sharing Technology and Vaccine Doses to Address Global Vaccine Inequity and End the COVID-19 Pandemic, 326 JAMA 219 (2021), https://jamanetwork.com/journals/jama/fullarticle/2781756; Matthew M. Kavanagh & Madhavi Sunder, Biden Must Push Drug Firms To Share Science With the World, BL (Apr. 23, 2021), https://news.bloomberglaw.com/health-law-and-business/biden-must-push-drug-firms-to-share-science-with-the-world; Matthew M. Kavanagh & Madhavi Sunder, Poor Countries May Not Be Vaccinated Until 2024. Here’s How To Prevent That, Wash. Post (Mar. 10, 2021), https://www.washingtonpost.com/opinions/2021/03/10/dont-let-intellectual-property-rights-get-way-global-vaccination/.

[5] Zero Draft of The WHO CA+ for The Consideration of The Intergovernmental Negotiating Body at its Fourth Meeting, 7 World Health Organization [WHO], https://apps.who.int/gb/inb/pdf_files/inb4/A_INB4_3-en.pdf (last visited Aug. 12, 2023).

[6] Watson et al., supra note 2.

[7] Id. at 1300.

[8] Id. at 1300-01.

[9] See Sheryl G. Stolberg et al., Pressure Mounts to Lift Patent Protections on Coronavirus Vaccines, N.Y. Times (May 17, 2021), https://www.nytimes.com/2021/05/03/us/politics/biden-coronavirus-vaccine-patents.html.

[10] See generally, Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Calif. L. Rev. 1331 (2004); Madhavi Sunder, The Invention of Traditional Knowledge, 70 Law & Contemp. Probs. 95 (2007).

[11] See Coronavirus (COVID-19) Vaccinations, https://ourworldindata.org/covid-vaccinations.

[12] Ali Sawafta & Rami Ayyub, Palestinians Cancel Deal for Near-Expired COVID Vaccines from Israel, Reuters (June 18, 2021), https://www.reuters.com/world/middle-east/israel-give-palestinians-1-million-covid-vaccine-doses-israeli-statement-2021-06-18/#:~:text=TEL%20AVIV%2C%20June%2018%20(Reuters,the%20PA%20health%20minister%20said.

[13] Michelle Nichols, U.N. Chief Grades World on Vaccine Rollout: ‘F In Ethics’, The Guardian (Sept. 21, 2021), https://www.reuters.com/business/healthcare-pharmaceuticals/un-chief-grades-world-vaccine-rollout-f-ethics-2021-09-21/.

[14] Congressional Research Service, Operation Warp Speed Contracts for COVID-19 Vaccines and Ancillary Materials (Mar. 1, 2021), https://crsreports.congress.gov/product/pdf/IN/IN11560.

[15] Sydney Lupkin, Pfizer’s Coronavirus Vaccine Supply Contract Excludes Many Taxpayer Protections, NPR (Nov. 24, 2021), https://www.npr.org/sections/health-shots/2020/11/24/938591815/pfizers-coronavirus-vaccine-supply-contract-excludes-many-taxpayer-protections.

[16] Arthur Allen, For Billion-Dollar COVID Vaccines, Basic Government-Funded Science Laid the Groundwork,  Scientific American (Nov. 18, 2020), https://www.scientificamerican.com/article/for-billion-dollar-covid-vaccines-basic-government-funded-science-laid-the-groundwork/.

[17] Lawrence O. Gostin, Global Health Security: A Blueprint for the Future 193 (2021).

[18] Id. at 194.

[19] Id.

[20] Sharon LaFraniere et al., Politics, Science and the Remarkable Race for a Coronavirus Vaccine, N.Y. Times (Nov. 21, 2020), https://www.nytimes.com/2020/11/21/us/politics/coronavirus-vaccine.html (“Moderna got nearly $2.5 billion to develop, manufacture and sell its vaccine to the federal government and teamed up with the National Institutes of Health on the scientific work, a highly successful partnership that managed to sidestep the political meddling by Mr. Trump and his aides that had bedeviled other efforts to confront the virus.”).

[21] Anthony E. Kiszewski et al., NIH Funding for Vaccine Readiness Before The COVID-19 Pandemic, 39 Vaccine 2458 (2021).

[22] Samuel Cross et al., Who Funded The Research Behind The Oxford–Astrazeneca COVID-19 Vaccine?, BMJ Global Health (Nov. 17, 2021), https://gh.bmj.com/content/bmjgh/6/12/e007321.full.pdf.

[23] Press Release, Statement by Moderna on Intellectual Property Matters During the Covid-19 Pandemic (Oct. 8, 2020), https://investors.modernatx.com/Statements–Perspectives/Statements–Perspectives-Details/2020/Statement-by-Moderna-on-Intellectual-Property-Matters-during-the-COVID-19-Pandemic/default.aspx.

[24] Adam Taylor, Why Covax, the Best Hope for Vaccinating the World, Was Doomed to Fall Short, Wash. Post (Mar. 22, 2022), https://www.washingtonpost.com/world/2022/03/22/covax-problems-coronavirus-vaccines-next-pandemic/.

[25] Adam Taylor, Covax Promised 2 Billion Vaccine Doses to Help the World’s Neediest in 2021. It Won’t Deliver Even Half That, Wash. Post (Dec. 10, 2021), https://www.washingtonpost.com/world/2021/12/10/covax-doses-delivered/.

[26] Sandrine Rastello & Kait Bolongaro, Canada Has Reserved More Vaccine Doses Per Person Than Anywhere, Bloomberg (Dec. 7, 2020), https://www.bloomberg.com/news/articles/2020-12-07/canada-has-reserved-more-vaccine-doses-per-person-than-anywhere#xj4y7vzkg.

[27] Amnesty International, Covid-19: Pharmaceutical Companies’ Failure on Equal Vaccine Access Contributed to Human Rights Catastrophe In 2021 (Feb. 14, 2022), https://www.amnesty.org/en/latest/news/2022/02/covid-19-pharmaceutical-companies-failure-on-equal-vaccine-access-contributed-human-rights-catastrophe-in-2021/ (reported that in 2021, Pfizer and Moderna “projected revenues of up to US $54 billion, yet supplied less than 2% of their vaccines to low-income countries”).

[28] Matthew M. Kavanagh & Renu Singh, Legal Paradigms and the Politics of Global COVID-19 Vaccine Access, in Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder eds., forthcoming 2024).

[29] Id.

[30] Erin Banco et al., How Bill Gates and Partners Used Their Clout To Control the Global Covid Response — With Little Oversight, Politico (Sept. 14, 2022), https://www.politico.com/news/2022/09/14/global-covid-pandemic-response-bill-gates-partners-00053969 (”During the pandemic, the foundation pushed back publicly on pressuring pharmaceutical companies to share its intellectual property, saying doing so would do little to spur rigorous vaccine development in the short term”).

[31] Michael Safi, WHO Platform for Pharmaceutical Firms Unused Since Pandemic Began, The Guardian (Jan. 22, 2021).

[32] Communication from India and South Africa, Waiver from Certain Provisions of the TRIPS Agreement for the Prevention and Containment and Treatment of COVID-19, WTO Doc. IP/C/W/669 (Oct. 2, 2020).

[33] See id.

[34] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 31, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 213999.

[35] See supra note 32.

[36] Id.

[37] See id.

[38] Id.

[39] See Over 120 Countries back IP Rights Waiver on Covid-19 Vaccines, Pharm. Tech. (May 7, 2021), https://www.pharmaceutical-technology.com/news/ip-waiver-covid-19-vaccines/.

[40] See Andrea Shalal et al., U.S. Reverses Stance, Backs Giving Poorer Countries Access to COVID Vaccine Patents, Reuters (May 5, 2021), https://www.reuters.com/business/healthcare-pharmaceuticals/biden-says-plans-back-wto-waiver-vaccines-2021-05-05/.

[41] See, e.g., Siva Thambisetty et al., The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic, SSRN Electronic Journal (May 24, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3851737#.

[42] See Kavanagh & Sunder, Poor Countries May Not Be Vaccinated Until 2024. Here’s How To Prevent That, supra note 4.

[43] See Farasat Bokhari, US-Backed Vaccine Patent Waiver: Pros and Cons Explained, The Conversation (May 6, 2021), https://theconversation.com/us-backed-vaccine-patent-waiver-pros-and-cons-explained-160480.

[44] See id.

[45] See Anna Marriott and Alex Maitland, The Great Vaccine Robbery, The People’s Vaccine (Jul. 29, 2021), https://webassets.oxfamamerica.org/media/documents/The_Great_Vaccine_Robbery_Policy_Brief.pdf.

[46] Thiru Balasubramaniam, WTO Trips Council: European Union Dismisses Concerns that IPRs Are a Barrier to COVID-19 Medicines and Technologies, Knowledge Ecology International (Oct. 20, 2020), https://www.keionline.org/34275.

[47] See Kevin Breuninger, Pfizer CEO Opposes U.S. Call to Waive Covid Vaccine Patents, Cites Manufacturing and Safety Issues, CNBC (May 7, 2021), https://www.cnbc.com/2021/05/07/pfizer-ceo-biden-backed-covid-vaccine-patent-waiver-will-cause-problems.html.

[48] Thiru Balasubramaniam, TRIPS Waiver Negotiations Go Down to the Wire in the Run-Up to MC12, IISD (June 7, 2022), https://www.iisd.org/articles/policy-analysis/trips-waiver-negotiations-mc12.

[49] Ministerial Conference of the World Trade Organization, Ministerial Decision on the TRIPS Agreement adopted on 17 June 2022 (22 June 2022) WT/MIN(22)/30, WT/L/1141.

[50] See id. ¶ 2.

[51] See id. ¶ 3(a).

[52] See id. ¶ 3(d).

[53]Ana S. Rutschman, Introductory Note to Ministerial Decision on the TRIPS Agreement (WTO), 62 Int’l Legal Materials 289 (2023).

[54] See Reto M. Hilty et al., Position Statement of 5 July 2022 on the Decision of the WTO Ministerial Conference on the TRIPS Agreement adopted on 17 June 2022 (“While the Decision refers to ‘clarifications and waiver’, it does not in fact waive any intellectual property (IP) rights as such under the TRIPS Agreement.”).

[55] Peter Lee, New and Heightened Public-Private Quid Pro Quos: Leveraging Public Support to Enhance Private Technical Disclosure, in Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder eds., forthcoming 2024).

[56] Sapna Kumar & Ana Santos Rutschman, New Licensing Avenues to Promote Public Health, in Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder eds., forthcoming 2024).

[57] David S. Levine & Joshua D. Sarnoff, Compelling Trade Secret Sharing, in Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder eds., forthcoming 2024).

[58] Kavanagh & Singh, Legal Paradigms and the Politics of Global COVID-19 Vaccine Access, supra note 28.

[59] Laura Pedraza-Fariña, COVID-19 as a Complex Disease: The Case for a Non-Traditional Team Approach, in Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder eds., forthcoming 2024).

[60] Jayashree Watal & Leticia Caminero, Least-Developed Countries, Transfer of Technology and the TRIPS Agreement, WTO Staff Working Paper ERSD-2018-01 (Feb. 22, 2018), https://www.wto.org/english/res_e/reser_e/ersd201801_e.pdf.

[61] See Suerie Moon, Does TRIPS Art. 66.2 Encourage Technology Transfer to LDCs? An Analysis of Country Submissions to the TRIPS Council (1999–2007), ICTSD (Dec. 2008), https://unctad.org/system/files/official-document/iprs_pb20092_en.pdf.

[62] See id. (“Many of the policies and programmes reported either barely targeted or did not at all target LDCs.”).

[63] David M. Fox, Technology Transfer and the TRIPS Agreement Are Developed Countries Meeting Their End of the Bargain?, 10 Hastings Sci. & Tech. L.J. 1, 20 (2019).

[64] William Fisher, Ruth Okediji, & Padmashree Gehl Sampath, , Fostering Production of Pharmaceutical Products in Developing Countries, 43 Mich. J. Int’l L. 1, 14 (2022).

[65] Hard technology encompasses physical and tangible assets, including machinery, equipment, and hardware designed for practical applications.

[66] See Ana S. Rutschman & Julia Barnes-Weise, The COVID-19 Vaccine Patent Waiver: The Wrong Tool for the Right Goal, Bill of Health (May 5, 2021), https://blog.petrieflom.law.harvard.edu/2021/05/05/covid-vaccine-patent-waiver/.

[67] Dmitry Karshtedt, Limits on Hard-to-Reproduce Inventions: Process Elements and Biotechnology’s Compliance with the Enablement Requirement, 3 Hastings Sci. & Tech. L.J. 109, 135–36 (2011).

[68] See W. Nicholson Price II et al., Knowledge Transfer for Large-Scale Vaccine Manufacturing, 369 Sci. 912, 912 (2020).

[69] Fisher et al., supra note 64.

[70] Stephanie Nolen, Can Africa Get Close to Vaccine Independence? Here’s What It Will Take, N.Y. Times (April 25, 2023).

[71] See Swati Bharadwaj, WHO to Set Up mRNA Vaccine Hub in Hyderabad As Part of Global Plan, Times of India (February 22, 2023).

[72] See Adam Taylor, Plan to make mRNA vaccines in developing countries needs U.S. funding, backers say, N.Y. Times (March 14, 2023).

[72] Id.

[74] Pedraza-Fariña, supra note 59.

[75] See Dina Halajian, Inadequacy of Trips & the Compulsory License: Why Broad Compulsory Licensing Is Not a Viable Solution to the Access to Medicine Program, 38 Brook. J. Int’l L. 1191, 1203 (2013).

[76] Id. at 1211.

[77] See Prabhash Ranjan, The Case for Waiving Intellectual Property Protection for Covid-19 Vaccines, 456 Observer Rsch. Found. (2021).

[78] See William A. Reinsch, Compulsory Licensing: A Cure for Distributing the Cure?, Center for Strategic & International Studies (May 8, 2020), https://www.csis.org/analysis/compulsory-licensing-cure-distributing-cure.

[79] See Halajian, supra note 75, at 1204.

[80] See Laura Chung, Use of Paragraph 6 Systems for Access to Medicine, 36 n.c. j. int’l l. 137, 170 (2010).

[81] See Kerry Cullinan, Company Pushes Canada to Grant Compulsory License for Johnson & Johnson COVID-19 Vaccine Intellectual Property, Health Policy Watch (Nov. 15, 2021), https://healthpolicy-watch.news/company-pushes-canada-to-grant-compulsory-license-for-johnson-johnson-covid-19-vaccine/.

[82] See Sheryl G. Stolberg, As Poor Nations Seek Covid Pills, Officials Fear Repeat of AIDS Crisis, N.Y. Times (May 11, 2022), https://www.nytimes.com/2022/05/08/us/politics/covid-pills-global-aids-hiv.html.

[83] Ministerial Decision, supra note 49, at ¶ 8.

[84] Francesco Guarascio & Jennifer Rigby, COVID Vaccine Supply for Global Programme Outstrips Demand for First Time, Reuters (Feb. 2, 2023), https://www.reuters.com/business/healthcare-pharmaceuticals/covax-vaccine-supply-outstrips-demand-first-time-2022-02-23/.

[85] See Sun, supra note 1, at 189.

[86] Paul Farmer & Simone Campbell, To Save Lives, We Must Scrap Patent Protections on Coronavirus Vaccines, National Catholic Reporter (May 5, 2021), https://www.ncronline.org/news/coronavirus/save-lives-we-must-scrap-patent-protections-coronavirus-vaccines.


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Making the Case for a Hybrid Chamber at the ICC Part II: The Low-Hanging Fruit for the Assembly of States Parties to the Rome Statute of the ICC

Making the Case for a Hybrid Chamber at the ICC Part II: The Low-Hanging Fruit for the Assembly of States Parties to the Rome Statute of the ICC

By David Donat Cattin* and Philippa Greer**

Introduction

In our latest article for the Harvard International Law Journal (HILJ) on the topic of modernizing the International Criminal Court (hereinafter “ICC” or “Court”) through the creation of hybrid chambers, we advocated for amendments to the Rome Statute to allow for hybrid chambers at the ICC, which could yield several significant benefits. Most notably, we suggested that the introduction of such chambers could motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.

On April 19, 2023, together with Judge Volker Nerlich of the Appeals Chamber of the Special Criminal Court of the Central African Republic, we presented at Harvard Law School further interventions regarding the proposal to introduce a hybrid chamber at the ICC, as well as our experiences concerning hybrid justice, or internationalized domestic jurisdictions, in international criminal law. The discussion that ensued from this thought-provoking HILJ event has prompted a revision of our original article and the issuance of this second part with operational suggestions for legislative drafters. These suggestions are two-fold. First, we propose additional consideration of the need to avoid amendments to the Rome Statute’s articles not falling under the accelerated amendments process provided under Article 122 of the Rome Statute, which specifically envisages reforms of a purely institutional and organizational nature, and hence does not affect states parties’ rights and obligations nor carry any jurisdictional or substantive law implications. Second, we reflect on the vital importance of the outreach and community-based work of judicial institutions, including those hosting hybrid chambers. We exclusively direct this Article’s proposal to the internal law of international organizations, also known as the “proper law of international organisations,” to quote C. Wilfred Jenks (1962).[1] As such, in accordance with the letter and spirit of Article 122 of the Rome Statute, it would be sufficient that a majority of two-thirds of states parties vote for its adoption and immediate entry into force for all states parties, thereby ensuring that there would be no fragmentation and unity would be preserved in the self-contained system of the Statute.

Atrocity crimes pose a global threat to humankind. The progressive development of the practice of international criminal law, in addition to the advancement of the body of international criminal law itself, is essential to the mission of the ICC today. Both are critical to advancing the central objective of international criminal justice, namely, to combat impunity in the face of the gravest crimes of concern to the international community.

In response to Russia’s invasion of Ukraine in February 2022, states embarked on what may emerge as one of the most comprehensive responses to a situation of mass atrocities to date. Forty-three states parties referred the situation in Ukraine to the ICC and thereby allowed the Prosecutor to open an investigation immediately. Many states sent voluntary financial contributions and seconded staff to support the Court (not only to bolster investigations in Ukraine, but also to reinforce the Office of the Prosecutor’s capacities in all the other situations under investigation) and national Ukrainian investigators in their efforts to document war crimes and crimes against humanity. The ICC was invited to participate in complex mechanisms set up by relevant states to address the mounting crime waves in Ukraine, such as the Joint Investigation Team and the International Center for the Prosecutor of Aggression (ICPA) facilitated by the European Union’s Eurojust, and in Libya, specifically, the Joint Team supporting investigations into crimes against migrants and refugees, supported by the European Union Agency for Law Enforcement Cooperation (Europol). These significant developments, which are raising the bar for international cooperation in the global fight against impunity for mass atrocities, all point to the continued international legitimacy of the ICC.

Given the complexities of the subject matter, however, one of the most pressing conversations in international criminal law today is whether and how an ad hoc international jurisdiction or a specialized hybrid court can be set up to address the crime of aggression in Ukraine. The ICC’s  jurisdiction over this crime is characterized by an extremely complicated regime, regarding which some states, led by Germany, and NGOs have been calling for reform. Due to a distinctive feature in its Statute as amended by the Kampala Review Conference (2010), the ICC cannot exercise jurisdiction over the crime of aggression by nationals of non-party states, including Russia (Art. 15 bis, para. 5), or perpetrated through the use of armed forces of states that have not ratified the Statute (Art. 15 bis, para. 4). Accordingly, numerous states are currently considering in tandem the creation of a new judicial mechanism that can exercise jurisdiction over the crime of aggression, with a few scholars insisting that such a court should be hybrid in nature, while a majority have expressed support for a special international tribunal (see, e.g., Oona Hathaway, Yale Law School; Jennifer Trahan, NYU Center for Global Affairs; Astrid Reisinger Coracini, University of Vienna; Philippe Sands, UCL Faculty of Laws; and David Crane, Syracuse University). These proposals are based on Ukraine’s call for, and explicit consent to, the exercise of jurisdiction over the crime of aggression, which is a crime under international law that shocks the conscience of humankind and represents the ultimate infringement on international peace and security. It falls within the framework of which all the other crimes, such as war crimes and crimes against humanity, are “contained” when they are perpetrated as a consequence of the waging of a war of aggression causing an international armed conflict. If this “special tribunal” is created, regardless of its model, there will be strong ownership by the territorial state.

Yet – looking back to the work of the ICC in this area – upon the issuance of arrest warrants against President Vladimir Putin and Ms. Maria Lvova-Belova on March 17, 2023, the first concrete step taken by the ICC with respect to the Situation in Ukraine, Prosecutor Karim A. A. Khan KC noted the following: “Since taking up my position as Prosecutor, I have emphasised that the law must provide shelter to the most vulnerable on the front lines, and that we also must put the experiences of children in conflict at the centre of our work. To do this, we have sought to bring our work closer to communities, draw on advanced technological tools and, crucially, build innovative partnerships in support of our investigative work.” To be “closer to the communities” affected by the relevant crimes, the Prosecutor entered into arrangements with the above-mentioned Joint Investigative Teams and developed a synergic cooperation with the authorities and civil society of Ukraine, a state that accepted the jurisdiction ad hoc under Article 12(3) of the Rome Statute and has not yet ratified the treaty.

In addition to the recent developments concerning the Situation in Ukraine at the ICC, the Court has furthered the objective of bringing the work of the ICC closer to affected communities through its recent actions, such as the conclusion of new memoranda of understanding renewing cooperation towards justice in the Democratic Republic of Congo, the establishment of an in-country office in Venezuela, and an action plan for renewed cooperation with Colombian national authorities in pursuit of accountability. Moreover, over the last twenty years, local and international NGOs and legal representatives of victims have repeatedly called for a greater presence of the ICC in the field through interactive outreach and public communications, including through the application of the Statute’s provisions on in situ proceedings.

Summary of the Benefits and Risks of Creating a Hybrid Chamber at the ICC

To summarize briefly the benefits and risks of creating a hybrid chamber at the ICC, as addressed in our original article, it is first noted that, on the risks side, there is the potential for compromised justice institutions through the use of national judges at the ICC, particularly in contexts involving a high degree of political instability. For instance, the rulings of national judges could be dismissed as lacking in impartiality or, even if impeccably well-reasoned, lacking the appearance of impartiality.

There is also the potential of a “due process critique” that a judge from the same state as a defendant might be biased in favor of, or against, that defendant, depending on the political climate following atrocity crimes. Also on the risks side, hybrid chambers could come with increased costs, or a rebalancing of resources away from the ICC’s core mandate. The Court would also need to adapt to new procedures for selecting judges, which could create difficulties at the initial stages. However, on the benefits side, hybrid chambers (and courts) may allow for building a more localized ownership of the justice process and fostering the development of international human rights norms within domestic legal systems.

There are a number of additional benefits a hybrid system would provide. The integration of national judges may provide a visible and more culturally appropriate justice process, which also adheres to international human rights standards. Furthermore, there is a perceived sense of transparency and greater resistance to political interference from the use of a combination of international and national judges. Indeed, integrating national judicial actors within the ICC’s decisionmaking process could enable a form of hybrid justice while still maintaining the ICC’s international legitimacy. Moreover, a hybrid chamber within the ICC could also motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.

Having a national judge take part in proceedings could indicate a greater degree of respect for state sovereignty and an institutional effort to be more representative. Also, hybrid chambers could serve to promote knowledge transfer and strengthen the capacity of domestic judicial systems through the engagement of national judges in international criminal proceedings that adhere to international standards.

Additionally, the participation of national judges could also increase the use of the language of the incident state during trials, facilitating national media coverage and making the proceedings seem closer to home for the relevant population. Finally, a hybrid chamber could create a more specialized chamber. For example, in situations where the Court has jurisdiction on the basis of the location of the respective atrocity crimes, a judge of the territorial state appointed to the bench might be expected to have special expertise in the specific language of the state in which the situation arose, in addition to cultural skills and background knowledge of the relevant state. This could help to make the hybrid chamber more focused and efficient.

In order to advance these goals and minimize the hurdles or complications that may be associated with institutional innovation, it is necessary for the states parties to the Rome Statute to elaborate a set of amendments that would empower the Assembly itself and relevant Court organs to take the necessary action in forming hybrid chambers within the ICC, when their configuration would be suitable to bring the justice process closer to the victims and the communities affected by the perpetration of international crimes.

Proposed Amendments to the Rome Statute

The practical vehicle through which amendments to the Rome Statute may best be effected to allow for the establishment of hybrid chambers within the Court is Article 122, which provides that an amendment of an institutional nature may be proposed by any state party and must then receive unanimous support or, in the absence of consensus, a two-thirds majority vote in the Assembly of States Parties (ASP) for its adoption and immediate entry into force. The latter characteristic of Article 122 makes it much more efficient and effective than the Article 121 amendment procedures, which cause “fragmentation” or diversification of jurisdictional regimes between states that have ratified amendments and states that have not ratified them. Additionally, amendments that require the ratification by seven-eighths of the states parties before entering into force (for all states), such as the 2015 amendment through which the ASP unanimously deleted the transitional provision on war crimes of Article 124 from the Statute, are essentially impossible to achieve. This is due to the fact that political momentum for the amendments’ ratification is normally missing, and the technicalities of ratification processes pose an obstacle to collective and coordinated action by such a large number of states parties. Article 122 was conceived to allow adjustments in the internal (institutional) law of the ICC, but, as of today, it has never been applied or invoked by states parties, even if a Report of the Bureau on the Study Group of Governance, published October 15, 2013, encouraged states to submit proposals pursuant to this Article at paragraph 22.

It is further recalled that Article 39 of the Rome Statute leaves the Court free to establish new Pre-Trial and Trial chambers as it deems efficient. However, these chambers are composed only of judges from the existing Pre-Trial and Trial Divisions, respectively. Article 39 could therefore be amended to allow for the creation of hybrid trial chambers in addition to ordinary trial chambers, with two judges from the corresponding division and a third judge appointed on an ad hoc basis. The required amendments must specify that one or more hybrid chambers, in addition to ordinary trial and pre-trial chambers, are permissible and should set out the appointment mechanism for judges to hybrid chambers, in addition to the service, qualifications, nomination, and election requirements regarding ad hoc judges.

As also emphasized in our original article, we note in this respect that ad hoc judges would not fall under the definition of ICC judges. The Court would also need to adopt new procedures for selecting judges. The distinct articles of Part 4 of the Rome Statute would further require amendment in certain respects in order to detail how the provisions related to service of judges (Art. 35), qualifications and nomination/election (Art. 36, but exclusively in respect of para. 8 on criteria for selection, i.e., expertise and independence of ad hoc judges, and in respect of para. 9 to outline ad hoc judges’ term of office), the organizational functions of the Presidency of the Court (Art. 38), the configuration of the Trial Division (Art. 39, para. 1, second sentence) and the composition of the Trial Division (Art. 39, para. 2(b)(ii)), removal from office (Art. 46), disciplinary measures (Art. 47), and salaries, allowances and expenses (Art. 49) would apply to ad hoc judges (appointed to hybrid chambers). Other provisions, such as those on the independence of judges (Art. 40), excusal and disqualification of judges (Art. 41), solemn undertaking (Art. 45) and privileges and immunities (Art. 48) will need to be interpreted as applicable to ad hoc judges. Finally, ad hoc judges would also need to be exclusively bound to apply the law in accordance with Article 21 (Applicable Law) of the Rome Statute (which would impede their application of domestic law outside the extremely limited boundaries of Art. 21, para. 1(c)).

How Hybridity Can Foster Domestic Reconciliation: The ECCC Example

Beyond additional consideration of the need to avoid amendments to articles of the Rome Statute that do not fall under the accelerated amendments process provided for in Article 122 of the Rome Statute, it is important to also contextualize the hybridization project more broadly, in view of the overall goal of fostering domestic stabilization and reconciliation through accountability efforts.

Regarding the importance of bringing the work of the ICC closer to affected communities, we note that any such proposal to amend the Rome Statute to create a hybrid chamber should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities and embedding national judges in the judicial decisionmaking work and processes of the Court.

Taking the example of the Extraordinary Chambers in the Courts of Cambodia, known as the ECCC or informally as the Khmer Rouge Tribunal, the importance of fostering domestic outreach activities is clear. The ECCC was established within the Cambodian legal system in 2006 to seek justice for the crimes committed by the Khmer Rouge regime. It has received international assistance through the United Nations Assistance to the Khmer Rouge Trials, known as UNAKRT.

The ECCC can only prosecute two categories of alleged perpetrators for alleged crimes committed between April 17, 1975, and January 6, 1979, the first being senior leaders of Democratic Kampuchea, and the second being those believed to be most responsible for grave violations of national and international law. There have been four cases at the ECCC, with the second and fourth cases severed into two and three sub-cases, respectively (Case 001: defendant Kaing Guek Eay, alias “Duch”; Case 002 (severed into Case 002/01 and Case 002/02): defendants Khieu Samphan, Noun Chea (deceased), Ieng Sary (deceased), and Ieng Thirith (deceased); Case 003: defendant Meas Muth; Case 004 (severed into Case 004/01, Case 004/02 and Case 004): defendants Yim Tith, Im Chaem, and Ao An).

To date, three individuals have been convicted and sentenced to life imprisonment by the ECCC (Kaing Guek Eav, alias “Duch” (Case 001); Nuon Chea and Khieu Samphan (Case 002)), two of whom have since passed away (Nuon Chea passed away on August 4, 2019, in the hospital at the age of ninety-three. Kaing Guek Eav was serving his sentence at Kandal Provincial Prison, Cambodia, until he passed away on September 2, 2020, in the hospital at the age of seventy-seven. The last surviving prisoner convicted by the ECCC, Khieu Samphan, has recently been transferred from the ECCC Detention Unit to Kandal Provincial Prison, to serve out his sentence, under the jurisdiction of the General Department of Prisons of the Ministry of Interior.

The ECCC has a majority of Cambodian judges in each chamber. In the Pre-Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge). In the Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber again being Cambodian). In the Supreme Court Chamber, there are four Cambodian judges and three international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge).

Beyond a mixed composition of judges in chambers, there are, for example, Co-Prosecutors, both international and national, Co-investigating Judges, both international and national, and mixed international and national personnel in all other areas of the court, including the Office of Administration, the Defence Support Section, Victims Support Section, and there is also one Cambodian and one international Civil Party Lead Co-Lawyer.

Many commentators in the international justice realm have noted that the ECCC has experienced high levels of acceptance and support in its communities. Compared to domestic courts, it has also arguably demonstrated greater transparency and resistance to political interference. It has achieved a high degree of public attendance and victim engagement in trial proceedings. Through its Public Affairs Section, for example, it has hosted a weekly radio program, and a broader outreach program, and generated a high level of domestic media coverage. The ECCC also made great advances in interpretation and transcription of its three working languages (namely, English, French, and Khmer). To give just one example of this, the trial judgment in Case 002/02 stands at 2,259 pages in length and was issued in English, French, and Khmer.

The survey results of a recent study undertaken this year by the court show that the tour program organized by the ECCC as part of its public outreach is relevant for imparting knowledge to younger generations. According to most respondents, the ECCC study tours provided additional knowledge of the trial of Khmer Rouge senior leaders and the history of the Khmer Rouge regime – including through presentations by relevant officials and visits to Toul Sleng Genocide Museum, the Cheong Ek Genocide Centre, and Win Win Memorial. These results came from a survey that was conducted online by the court from February 15 to April 6, 2023, open to individuals who had participated in the ECCC study tour program. From February 15 to April 6, 2023, there were 3,430 youth, students, and teachers who had participated in the study tours organized by the court. 1,527 people responded to the online survey.

This focus on public awareness and engagement by the court is significant. The mandate of the Public Affairs Section prompts us to reflect on broader questions related to the role of capacity-building in a post-conflict society and how hybrid justice can help to develop a sense of local ownership of the justice process, while also leaving impacts for future generations to come. At the ECCC, officials routinely visit remote provinces and speak to members of the public, including school children, about the work of the court, distributing information materials about the ECCC and taking questions from students and the public about the court proceedings.

This aspect of the work of the court may be powerfully described with the notion of “justice under a tree.” The proposal to create a hybrid chamber within the ICC is based to an extent on the idea that hybrid forms of justice can help to develop a sense of local ownership of the justice process, leaving impacts for generations to come. The idea of “justice under a tree” is one which can be used to draw an analogy to the notion that hybrid justice and hybrid courts are often viewed as providing a more visible and culturally appropriate justice process that adheres to international human rights standards.

The concept comes from traditional African societies: under the tree is where people would meet to resolve disputes. For instance, with respect to the Constitutional Court of South Africa, the logo of the court depicts people sheltering under a canopy of branches, a representation of the court’s protective role and of the theme of justice under a tree. This logo reveals the ethos and culture of the court as a source of protection for all, as well as the Constitution’s historical roots in South Africa in terms of the struggle for human rights, infused with the spirit of a new democracy. Indeed, the Constitutional Court was borne not from clichéd images of the scales of justice and Roman columns. Rather, the symbol chosen for the court’s logo was the tree – something that protects, just like the Constitution. However, the tree does not stand alone in the logo. It is sheltering people who have gathered under its branches.

Standing outside, under trees, in school playgrounds in rural settings, public outreach missions in Cambodia may be said to have brought a sense of “bringing the law home” to affected communities, thereby further ensuring truth-telling in terms of historical record and teaching future generations to be attuned to the early warning signs of genocide and atrocity crimes. This may be considered as an extended form of “justice under a tree,” ensuring that justice is both visible and community-based.

Therefore, the proposal to amend the Rome Statute of the ICC to create a hybrid chamber within the Court with a composition of national and international judges may be viewed as one way of bringing the law one step closer to the communities affected by the work of the Court.

In order to achieve this result, it would be essential for the Assembly of States Parties to the Rome Statute to fulfill its legislative responsibility and make use of the provisions of Article 122 of the Statute, empowering a qualified majority of two-thirds to reform and modernize the internal judicial infrastructure of the Court and, ultimately, increase its impact, performance, and effectiveness.

This reform must be accompanied by concurrent efforts to increase the public outreach efforts of the Court and the accessibility of the only permanent international criminal tribunal, the ICC, for victims, including survivors. Therefore, such a proposal should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities, alongside embedding national judges in the judicial decisionmaking work and processes of the Court. The overarching question which we should always remain focused on is: how do we best produce positive results for affected communities?


[1] See generally Clarence Wilfred Jenks, The Proper Law of International Organisations (1962).

*David Donat Cattin is an Adjunct Associate Professor of International Law, Center for Global Affairs, NYU; Research Fellow, Center for International Law Research & Policy (www.cilrap.org/donat-cattin/); and Senior Fellow, Montreal Institute for Genocide and Human Rights Studies at Concordia University.

**Philippa Greer is the Head of the Legal Office of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, Gaza Strip. She previously served as a legal adviser at the United Nations in Afghanistan, Jerusalem, Cambodia and Tanzania and worked at the UN Secretariat in New York. The views expressed herein are those of the author alone and do not necessarily reflect the views of the United Nations. Philippa tweets @philippa_bear


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