The richest countries are vaccine hoarders. Try them in international court | Anthony Costello

It is clear that the existing efforts to distribute vaccines to poorer countries are not working. The Covax Advanced Market Commitment was set up in September 2020 by the Global Alliance Vaccine Initiative, in alliance with the World Health Organization, to accelerate the development and manufacture of Covid-19 vaccines, as well as diagnostics and treatments, and to guarantee rapid, fair and equitable access to them for people in all countries. Donor countries would thereby fund guaranteed volumes of vaccines from manufacturers to supply low- and middle-income countries.

The Covax scheme’s target was to deliver 2bn doses by the end of this month. And yet, by 5 December, well over a year since its launch, the Covax scheme had shipped only 669m doses to 144 countries, with just 250m donated to the poorest 95 countries at time of writing. Not only is it way off track, millions of vaccine doses donated to African countries have passed their expiry dates and have either been sent back or destroyed. In April 2021 the WHO established a Covid-19 mRNA vaccine technology transfer hub to try to speed up global manufacturing. All three mRNA vaccine manufacturers have refused to take part. If we want the world vaccinated with three doses, it will require the distribution of at least 20bn doses. Pfizer/BioNTech, whose vaccine requires ultra-cold storage that makes it difficult to distribute in low-income settings, predicts it will expand production to 4bn doses at best by the end of 2022.

What can the world do when massive financial interests are placed before the survival of millions of men, women and children? There are several options. One is a patent waiver. A year ago India, South Africa, Kenya and Eswatini among others called for one, so that emerging economy companies were not under threat of future litigation. The USA and France eventually supported them. But Germany, Canada, Japan, South Korea and the UK blocked this move to protect big pharma. Bill Gates, a major donor to Covax, also defended patent rights. After months of wrangling, the WTO has failed to broker an agreement.

Another option, put forward by Dr Peter Singer, senior adviser to the WHO director general, is to appeal to the moral and ethical values of the big pharma board members and investors. Many of these people have led institutions committed to global public goods and equity. One would think they might also have religious or moral principles that would make them think again. But there is little historical precedent, when stocks are booming, for such a display of altruism.

A more effective line may be to take action against states such as Germany, Canada, the UK et al, over what is arguably an infringement of human rights. There is little doubt that their policies break the UN convention on the rights of the child, which requires states to “combat disease and malnutrition … [through] the application of readily available technology”, with particular attention paid to the “needs of developing countries”. Likewise, the UN guiding principles on business and human rights, unanimously endorsed by the UN human rights council, calls for “business enterprises … to comply with all applicable laws and to respect internationally recognised human rights”, and describes the state duty to protect against human rights abuses by businesses through policies, regulation and adjudication.

Sadly, neither of these conventions have much teeth, and they are regularly broken with impunity. This leaves the nuclear option: prosecution in the international criminal court for crimes against humanity. In article 7 (1) of the Rome statute, these are described as “a widespread or systematic attack directed against any civilian population” and “inhumane acts … intentionally causing great suffering, or serious injury to body or to mental or physical health”. International lawyers should consider this option and act quickly.

We cannot let this carnage drag on. We could see another 12 million deaths in the next year. People across the world want justice. They should have a right to vaccine access, especially when many of the vaccines in question were researched and developed largely by government scientists trained and employed at taxpayers’ expense. Anyone standing in the way of saving lives in the name of private profits should be held responsible.