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Global Justice Now is holding a day of action against corporate courts on Saturday 21 May.  Our bit of the action in Cambridge will be a campaign stall on Rectory Terrace, Cherry Hinton High Street (between Tesco Express and the junction with Chelwood Road), 10:00-12:00.  We had a stall in the same place, and for the same cause, last September.

That action was successful in its own terms.  We gave out leaflets and engaged people in conversation.  But corporate courts are still a thing, and still enabling large firms to take legal action against any climate measures by governments.

Since Global Justice Now started campaigning on this, there’s been success on two of the demands.  The UK has dropped corporate courts from the bilateral trade deals it’s been negotiating with Australia and Canada.

The present petition calls for the UK to exit the Energy Charter Treaty and not join the Trans-Pacific Partnership. The Energy Charter Treaty (signed in 1991) is an investment deal between more than 50 countries, focused specifically on the energy sector.  The Trans-Pacific Partnership is a deal involving states around the Pacific rim.

Corporate courts are among the provisions of both deals.

Italy has pulled out of the Energy Charter Treaty, and several other European countries are also considering exiting.

Let’s see how much pressure we can put on the UK Government to do the same!

[Talk given by Tim Bierley to Global Justice Cambridge, Wednesday 19 January 2022.  An edited version of the Otter transcript of the Zoom recording]

When I speak to friends, people in the street and others about the fact that we really need to make a strong change to the way pharmaceutical companies have operated in the pandemic, I sometimes get asked, Well, why do we need to do anything about it? After all, pharmaceutical companies have been hailed

as the heroes of COVID for their role in developing incredibly effective vaccines in record time.

The collective effort of scientists in producing so many effective vaccines in such a short space of time is indeed miraculous. And with Pfizer’s the first vaccine to be approved, and generally proven to be one of the most effective, there’ve even been rumours that Pfizer would be awarded a Nobel Prize for the work this year. It’s important to know that outside of Global Justice Now, there is still this perception of pharmaceutical companies as the heroes of this response. This is a key narrative that we have to challenge.

In March last year, Boris Johnson told a group of Tory MPs:

“The reason why we have that vaccine success is because of capitalism and because of greed.”

His audience of Conservative MPs and staffers cheered and clapped. For most people in this room, our response to this would probably be anger and bewilderment.

The fact is that almost every success in this pandemic has its roots in huge amounts of taxpayer funding, and government planning. The role of pharmaceutical companies and free market loving governments the world over is in large part to undermine the vaccine rollouts to the places where they’ve been needed most.

In the UK, over 50% of the population has now received the booster dose. But compare that with just 15% of Africa’s population that has received even a first dose of the COVID vaccine. It’s been a deeply unequal response.

Pharma companies and politicians like Boris Johnson argue that pharma companies were incentivized to innovate, knowing that they there would be something in it for them. But all of the vaccines are either wholly or significantly based on publicly funded research, bankrolled by taxpayers for many years.

The UK’s AstraZeneca vaccine was produced with public money. And the Moderna vaccine in the US was also made with 97 97% of this research and development came from government funds. Pfizer protests that it did all of its own work. But the US is Biomedical Research and Development Authority has for years invested in messenger RNA vaccine development, the technology behind the vaccine.

And Pfizer had all of the risk taken out of whatever money they did put in by having advanced purchase contracts worked out with governments to the tune of around $6 billion to deliver the first 300 million doses. The dominant narrative of private innovation is really a myth. And it’s told to justify a business model that is irrational in terms of health outcomes, and cutthroat when it comes to making money.

And over a year after the fifth vaccines became available, only 4.9% of people living in the poorest parts of the world are fully vaccinated. In the UK, by the end of January last year 10% of the country had received its first vaccinations, and yet large parts of the world a year on still not there. Three quarters of health workers in Africa are still unvaccinated.

Wealthy nations are continuing to protest that they’re working to a timetable of delivering more doses at some point in 2022. But there’s no clear plan. And they’ve continued to deliver doses which have been close to expiry dates. A lot of countries feel like they’re receiving the second class of doses. This donation model has not worked.

Meanwhile, pharma executives and shareholders have become immensely wealthy. Nine pharma billionaires were created even by summer last year. Moderna has arrived from never having produced a medicine to making huge mega profits — share price going up 600%.

The emergence of Omicron also saw Moderna’s price rocketing up. Pfizer says they will generate at least 36 billion in 2021. Their fourth quarterly financial reports are due on February the eighth. We’ll be watching that carefully. They’re not going to announce that their vaccine is now the most lucrative drug of all time, but that’s what we’re expecting it to be. In terms of annual revenue, Moderna is set to become maybe the second or third most lucrative firm of all time.

Pfizer’s vaccine, which the UK bought huge amounts of, is estimated to cost between 76 P and five pounds to produce so five pounds is the figure that that that Pfizer gives. 76 P is what some biological engineers in a recent dispatches documentary estimated that it actually costs to make per dose now. Sold to the NHS for 20 pounds a dose, which is the most expensive that that any country is paying. Pharmaceutical companies suggest they are providing non nonprofit versions of their vaccines to poorer countries. But it’s got to be put in the context of historical vaccines. COVID vaccine prices are higher than the median for low income countries. So they’re charged in roughly $66.88 For dose, compared to an out to a median average of 80 cents, even for the more expensive vaccines like HPV and pneumonia. The median price is between $3.00 and $4.50. So foreign companies are really cashing in.

Boris Johnson is fond of repeating the mantra, no one is safe until well until we’re all safe. But the deep vaccine inequity that our government has helped perpetuate is likely to lead to more variants of concern. Scientists agreed that the emergence of Omicron was the inevitable result of vaccine inequity, a severe lack of cooperation on the part of rich countries with increased transmissions creating more opportunities for the virus to mutate.

Omicron has so far proven less deadly than some of the previous variants. But the scientific evidence does not say that next variant will be also. And the effects of Omicron are also massively reduced by vaccines. So while Boris Johnson declares the end of the pandemic on these shores, huge numbers of cases are building up in countries where vaccine coverage is low. And healthcare systems that could be easily overwhelmed are very badly funded.

And the British Medical Medical Association is warning that the NHS could be overrun as a result of the end of the Plan B restrictions. So where did it all go wrong?

At the beginning of the pandemic, there was there was some initial optimism that there will be a cooperative response to the pandemic, that pharmaceutical companies and rich countries might cooperate to the extent that we would see an equal vaccine roll out. The World Health Organisation, set up a mechanism called the COVID-19 Technology Access Pool, to facilitate and organise the sharing of scientific knowledge and data for all COVID 19 health technologies. They were hoping the pharma companies would place the recipes for their vaccines into a shared knowledge pool, which manufacturers the world over would be able to draw upon, so that we could scale up production quickly and make sure that people around the world were vaccinated together. This obviously did not happen.

C-TAP was met with a wall of resistance. The CEO of Pfizer called the idea nonsense. There were threats that this would undermine free enterprise and innovation. A year after C-TAP’s launch, it had attracted zero vaccine contributions from pharmaceutical companies.

At the end of last year, a Spanish research facility submitted a test a diagnostic to C-TAP. But thus far, that’s the only example of a real collaboration we’ve seen in that respect.

The alternative to C-TAP, supported by rich governments and institutions like the Bill and Melinda Gates Foundation, was COVAX. So this was supposed to be a mechanism aiming at ensuring equitable vaccine access, while also preserving intellectual property rights for those pharmaceutical companies. It will be a public private partnership, and an end to end programme spanning vaccine development all the way through to delivery for every country in the world. So the idea was that it would invest in several vaccine candidates from different companies and improve his chances of having a successful vaccine which has been concluded. And by buying doses in bulk, it would be able to negotiate favourable prices with manufacturers. So the idea again, was that higher and middle income countries would buy into COVAX as an insurance mechanism. The idea was that that that they would be worried that they wouldn’t be able to get access, whether through bilateral deals or sort of in house production, that they wouldn’t be able to get access to vaccines.

But it was quite quickly seen that these rich countries believed that bilateral deals were the way to go. Donald Trump set in motion the US investment of billions into vaccines and started buying up contracts as well. COVAX simply didn’t have the political will or the public sector financing to succeed. It relied on vaccines, partly because of the reluctance of a lot of pharmaceutical firms to join in COVAX. They knew that they would be able to sell their vaccines at higher prices under bilateral deals. There was over reliance on vaccines produced in India, in the Serum Institute, which is where AstraZeneca was made. And then obviously, when when COVID crisis hit India last March and April, India put in place an export ban which slowed the rollout of COVID vaccines.

A lot of rich countries used COVAX to demonstrate that they are doing something and that they’re generous. It’s been an easy way to respond to accusations that they are perpetuating vaccine inequity. This week, COVAX reached its its billion dollar donation, which is a significant market, but its target for 2021 was 2 billion doses initially.

And then that target was reduced to 1.4 billion doses, and only 1 billion has been delivered two or three weeks after that. These vaccines did not come at the time when countries most badly needed them.

We’ve been campaigning for an alternative that we’ve called the People’s Vaccine. Vaccines should be available to everybody free free of charge, and available everyone.

And the key mechanisms that we’ve been demanding to achieve this:

that governments and big pharmaceuticals join C-TAP and transfer their technology to manufacturers in the Global South. As we’ve seen, pharmaceutical companies have been very reluctant to do that.

Our main priority, so far, has been the intellectual property rules, which enable pharmaceutical companies to maintain their monopolies over these publicly funded vaccines that they created.

In October 2020, South Africa and India proposed the intellectual property rights would be waived on COVID, vaccines, tests and treatments, and all all health tools to do with COVID. The idea was that overcoming all forms of intellectual property protection, including patents, and sharing know how it would allow multiple countries around the world scale up production. This will be achieved at the World Trade Organisation by suspending what is called the TRIPS agreement.

So a very quick overview of TRIPS. This global agreement on trade related aspects of international property rights, says that all WTO members must abide by patent and trade secrets rules. So the agreement itself was written by corporate lawyers. Pfizer had a huge role in writing the this intellectual property bit of legislation, as it tried to protect its monopolies in the 1990s, and it had been lobbying for a lot longer before.

Within the agreement, there are some flexibilities that say that countries can override intellectual property if it concerns public health. But these are really complicated and slow moving. And they’ve been very rarely successfully implemented: things like compulsory licence, which you may have come across.

But it’s clear in this emergency, when time is of the essence, a clean break is needed. And this is what India and South Africa proposed last year, a temporary waiver. Over 130 countries support this waiver. But there are still some very powerful governments who are able to veto it, including our own. The EU and especially Germany are also key blockers. And Big Pharma has also railed against the proposal and lobbied against it.

And you’ve seen pharmaceutical CEOs, implying that countries in the Global South don’t have the capacity to make these vaccines. And it’s just not true. A report in December showed that over 100 facilities in Latin America, Asia and Africa could manufacture mRNA vaccines, if only intellectual property were waived, and the technology was shared. That could really turbocharge production!

If this had been implemented in October 2020, when it was first proposed, we’d be seeing significant results of this now.

The pharmaceutical industry spends vast amounts of money lobbying. And as I say, it has itself shaped the regulatory system that it has to abide by and is understandably threatened by this and is putting up significant opposition to the proposal for the waiver. So you can see some really interesting and encouraging green shoots of hope just from this obstruction by the foreign companies and by governments, including my own. The pressure we’ve built has been really effective in many fronts.

Nick Dearden always likes to say that this is the first time the President of the USA has backed one of our campaigns, as Joe Biden does. They support a waiver on vaccines.

We’ve had politicians from across the divide in the UK. We’ve had some conservatives backing the waiver, and the Labour position is to back a waiver as well. And the Lib Dems and the Greens have also been very strong in this. And the SNP — Nicola Sturgeon came out just before Christmas, and wrote to Boris Johnson calling for the TRIPS waiver to be framed to back it.

The pressure on companies like Moderna has created some cracks in the system. Moderna‘s vaccine was entirely publicly funded, and their CEO has become a billionaire during the pandemic, will not enforce patents on their vaccine. So they won’t sue the governments of countries where replication takes place. It’s not quite as generous a move, as it might look at first, but it has prompted a vaccine facility in South Africa.

It starts with reverse engineering. Once it has worked out how to make the vaccine, this firm is not going to use its knowledge to to monopolise profits, but it’s going to use it as know how to teach others in the Global South, how to make it — a really promising alternative way of doing things. Frustratingly, but not really surprisingly, Moderna is refusing to share its recipes with the South African vaccine hub. I think if they were serious about enabling sort of production, they could share the know how.

There are also some worries that some of the components of the vaccine are not held on Moderna patents. They’re held by patents further upstream. So there is still some possibility of legal action and more battles ahead. These are ones that we would obviously fight, tooth and nail.

The process of reverse engineering the vaccine takes time. It could add a year or even more into the process. That said, the the hub in South Africa did announced this week, that it’s produced the drug product formulation, which is just six months since the initiative was announced. It’ll be used more as a training batch than a finished product. But it’s a really good start.

And this breakthrough should do a lot to dispel myths around the technical expertise of labs in Africa. South Africa is at the cutting edge of a lot of pharmaceutical industry as well. This example provides a glimpse of what could be achieved.

MRNA technology has huge potential, it could be used to treat various diseases from malaria to HIV. In theory it’s straightforward to spot mRNA contacts and make vaccines for different pathogens. So it’s good for reacting to new variants, and good for tailoring to different diseases. But obviously, the longer Pfizer and Moderna keep their hands on this technology, the greater edge they will have on any future vaccines and dreams.

A real solution must be rooted in southern autonomy over the pandemic response. We can draw hope from previous occasions when this has happened. When South Africa took on the major pharmaceutical companies who were trying to block them from importing cheaper HIV treatment, this was under Nelson Mandela. And they successfully managed to start importing generic HIV treatments, which were much much cheaper, from India, despite the efforts of Pfizer to sue them

It’s monstrous to consider. And it’s monstrous what’s happening now.

After glimpsing the other possibilities, and the other world we could have, we should also look at where we’re headed without change. Pfizer and Moderna have already started to jack up their prices. And rich countries are securing future doses, the demand is staying high. And Pfizer’s own executives have said that they would like to raise prices even further.

The pandemic has underlined that the existing system of medicine access is really rotten. And for those watching closely, it’s revealed the extent to which Big Pharma is is very reliant on our governments to fund it to hedge its risk and to nurture its innovations. But the government continues to promote the line that changes to intellectual property rules would disincentivize innovation, and even result in worse health outcomes. But they’re really wrong on this.

Many of the innovations in the pandemic were publicly funded and made in publicly funded labs. And the state has got a huge power to shape the science that comes out. But we’ve also seen really great examples of scientists not acting for profit, even outside of these circles. The team behind the AstraZeneca vaccine was initially very keen to make the vaccine available on open licence. But it’s alleged interventions by the Bill Gates Foundation paved the way for the AstraZeneca deal and an exclusive licence instead. The privatisation of it by pharmaceutical companies came after the work was done.

Meanwhile, the Baylor vaccine, which which has just received emergency approval in India, was developed by the Texas Children’s Hospital. And they’re promising that their vaccine will remain profit free, patent free, and they’re completely open to production worldwide. And they’re trying to transfer their technology to various countries starting with India, but moving on to Botswanar soon. So the argument that patents and rigid intellectual property rules are the best way to bring about innovation are also really dubious. The innovation they bring about is not always good.

Pharma companies, by their very structure, and their duty to shareholders have a really strong tendency to put profitable ventures over public health. Disease prevention tools and vaccines are often sidelined over high incidence chronic or lifelong treatments such as diabetes.

Obviously, it’s very important to treat these — but not at the not at the expense of rare diseases. Diseases which require one off treatments should receive as much focus. The longer term ones offer much better prospects for medicine, medicine sales. The same applies for things like antibiotics and the lack of market incentives there has led to very few investments in antibiotics. There’s been no new type of antibiotics for 30 years — no new compound anyway. And the world could be sleepwalking into a new health crisis, as as antibiotic resistance grows.

And a lot of the research and development doesn’t create innovation. More than half of approved medicines in recent years were just modified versions of existing medicines and didn’t offer any additional health benefits. And we’ve also seen massive underinvestment in rare diseases.

Meanwhile, pharma companies often spend more money on sales and marketing than they do on research and development. Huge funds invested by pharmaceutical companies aren’t always in the practical business of making people better.

So, to sum up this, this model is not working. And the drive to protect it at all costs does not make sense for anyone except for pharmaceutical companies. And the government insists that intellectual property is not a key block to global supply of vaccines. But if it’s not a significant block, then why are 130 countries demanding its suspension and the TRIPS waiver?

So we need to grasp this moment, first and foremost, to keep people alive. That’s pretty clear. But we can’t let this moment pass without creating a sea change in how Big Pharma is perceived. We have to realise that Big Pharma is not our Saviour. The vaccines are marvels of creation, but they do not require billionaire CEOs or monopoly patents to bring them about.

National anti-inequality charity Global Justice Now Trust has netted over £200 from generous donors in Cambridge.

Music teacher Ursula Stubbings led a group of carol-singers in Panton Street and Gwydir Street in  December, and residents kindly gave £222.99.

Clare Sansom, Group Secretary of Global Justice Cambridge, said:

“Global Justice Now is engaged in cutting-edge research into the causes of poverty worldwide.  Ursula’s group of singers made a wonderful display of solidarity — and we’re really grateful to everyone who gave money.”

Jean Blaylock, campaigns and policy manager at Global Justice Now, has been active in trade and food campaigning for over 15 years.  She spoke to Global Justice Cambridge by Zoom on 21 October.  This summary of the talk is by Clare Sansom.

Corporate Courts and the Climate

Jean began by saying that ‘corporate courts’ is a short term for ISDS – the investor-state dispute settlements through which corporations (from another country) can sue governments and other entities for taking action that would threaten their investments and future profits. These courts are fundamentally corrupt and outside the normal legal systems and GJN has been campaigning against them for some time.

She illustrated this point with a couple of examples: a famous early one of a tobacco company suing the Australian government for its decision to legislate for plain-paper packaging on cigarettes, and a later, climate-related one in which the US oil and gas company Lone Pine is suing the Canadian government over a fracking moratorium in Quebec. Fracking had become very unpopular in Quebec, and active anti-fracking groups persuaded the government to introduce first a review of the practice and then the moratorium. Lone Pine is suing for the profits that they would have taken out of this project if fracking had gone ahead. Similarly, the British oil company Rockhopper is suing the government of Italy over a ban on offshore drilling near the Italian coast, and two companies are suing the Dutch government over their phase-out of coal power. This action started in 2015, the year that the Dutch signed up to the Paris agreement. Activists challenged this and it eventually reached the Supreme Court, which held the government to its promises under that agreement. The companies have now threatened to sue for billions if the coal phase-out goes ahead.

More information about these case studies and others can be found at https://www.globaljustice.org.uk/our-campaigns/trade/corporate-courts/isds-case-studies/.

This last example shows that it can be possible for governments and activists to win ISDS cases, but there is another problem even when they do: the regulatory chilling effect. The Australian regulation on plain paper cigarette packages came out of the WHO, and several other countries were only a little behind the Australians when the company sued. This led to other countries putting their plans on hold, and they were only reinstated when the Australian government won the case on a technicality. There have been other occasions since when an ISDS case against one country has caused others to pause similar actions. The poorer and more vulnerable a country is, the more likely they are to pause desperately needed climate action because another country – perhaps in the rich world – is being sued. On the climate issue, the COP system has been designed to keep pushing for more ambitious climate action, but the corporate courts are pushing back strongly in the other direction. If we are to get the climate action that we need, we must get rid of them.

The UK is involved in a number of treaties that have corporate courts built into them, and this number is only increasing since Brexit. In particular:

• ISDS is written into the Energy Charter Treaty, which allows fossil fuel companies to sue any of its 50 member states (including the UK)
• The UK is planning to write it into several of the post-Brexit trade deals that it is pursuing (although so far, at least, it has been kept out of the Australia deal)

GJN is pushing for the UK to exit the Energy Charter Treaty and to keep ISDS out of any deals it signs.

Globally, however, there has been something of a recent trend against ISDS. Some South American countries, including Brazil, have never signed up to corporate courts and even the US is thinking of dropping some. Several European countries and the EU itself are thinking of leaving the Energy Charter Treaty. Global Justice Now is hoping to persuade the UK government to do the same.

Questions

Is there a specific reason why these countries are dropping out of the corporate court system?

Jean described the history of the system in terms of a ‘wave’; corporate courts were first set up in the 60s and 70s but very rarely used then. The number of cases only began to increase significantly in the late 90s and early 2000s, and it is only recently that countries have begun to have second thoughts about them.

What’s the history of the Energy Charter Treaty?

Jean said that this treaty was set up after the collapse of the USSR to protect companies that wanted to access Soviet oil. We knew about climate change then, but it wasn’t really on the agenda, and the idea of protecting fossil fuel interests was quite popular with the public then, but things are very different now. Most of the countries that are signed up are EU members, and if the EU and the UK were to leave the treaty would probably become unviable.

Countries that leave the Energy Charter Treaty still have financial liabilities to it.  Will these departures really be enough to neuter it? 

Jean pointed out that these liabilities are ‘only’ for 20 years, and that countries that leave could choose not to pursue them. If (for example) the EU, the UK and Norway were to leave there would not be enough left to press for significant penalties.

How much progress are GJN (and others) making in persuading Parliamentarians not to back corporate courts?

Jean replied that the Labour Party is opposed to them and the Lib Dems and the SNP are critical. The Lords are persuadable, largely because they have noted the need for a level playing field and some backbench Tories have expressed concerns. The Government, unsurprisingly, is not yet convinced but even they are beginning to realise that corporate courts are unpopular. The Brexiteer need for ‘independence’ might even work in our favour, and they might be persuaded that it is better to sacrifice ISDS than to risk a whole trade deal.

Has the issue been debated recently?

Jean said that it was discussed during debates on the Trade Bill. We didn’t win what we wanted to on that one, but at least the issue is in the open. It has also been discussed in some All-Party Parliamentary Groups and in Westminster Hall debates; both these are often more thoughtful and less partisan than the main Commons debates. Government representatives frequently respond to criticism by saying that business needs it, but many businesses have disagreed.

What’s the record of countries successfully defending their actions in ISDS cases?

Jean said that so far governments appear to have won more cases than corporations, but this is skewed by the fact that many cases are settled out of court (with large payments to the corporations). Looking at the cases that come to judgement, the tally is more like 60:40 in favour of corporations, and some of the 40% were only won after concessions. Countries also need to pay high fees to skilled lawyers in order to win.

Does this not skew the system against poor countries?

Jean agreed.

Are any campaign techniques particularly useful against corporate courts?

Jean said that there is a lot to be said for just keeping going: the dogged action against the last iteration of this problem worked in the end. Where possible, left-wing governments can be powerful allies.

How can we campaign in the UK, with a very right-wing government?

Jean said that even the UK government knows that corporate courts are controversial and will be unpopular once they are understood. We need to get the issue discussed in the mainstream media and we can also work with our international allies (e.g. in other European countries against the Energy Charter Treaty).

If fossil fuel companies can defend themselves by claiming that if they lose money, they will have to make people redundant, can we not link our campaign to the idea of a ‘just transition’ to sustainable jobs in clean energy?

Jean said that there is a question mark over whether the money won by companies under ISDS actually ends up in investment and jobs. This is the hedge fund economy, not the ‘real’ economy.

As there were no further questions, Aidan thanked Jean again and said that she had given us exactly the information we will need if we are to raise questions around corporate courts during our actions linked to COP26.

We made our point against corporate courts in two Saturday actions in September.

On 18 September, a High Street stall in the suburb village of Cherry Hinton, where several group members live.  The stall was our base and we patrolled around it, pumping out leaflets and engaging people in conversation.  Interestingly different from previous forays of this kind in the city centre.

Those had put us up against a rapid flow of people from all directions.  You had to decide early on whether you were pumping out leaflets (to moving people) or gathering signatures (from static people — those window-shopping, tethering their bikes, between mobile conversations, waiting for buses).

Cherry Hinton’s flow was slower but fairly steady.  We gave out a lot of leaflets, and we got to talk with people.

I hope we’ll use this venue again!

Then on 25 September we joined friends from other groups in the COP26 Coalition at their Climate Fair on Parker’s Piece.  This is a large, open, grassy area with paths converging at a central lamp-post that’s known to Cambridge people as ‘Reality Checkpoint‘.  With us on the path to Reality Checkpoint were Clean Air Cambs, Cambridge Stop War, Friends of the Cam, and Cambridge Friends of the Earth — and, more importantly still, a lot of passers-by who were happy to talk and take action cards from us.

We hope you got to walk to some of the places on our previous posts.  How far did you get?  Did you make this walk alone, or were other people alongside you?