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countries” (Bill & Melinda Gates Foundation, 2009). WHO’s influenza specialist Keiji Fukuda told a meeting of the Institute of Medicine’s Forum on Microbial Threats in September 2009 that the access question “is the flash point right now, for global solidarity…. It is the fundamental issue of our times…. Benefit-sharing is the central global issue of our time” (Garrett, 2009b, p. 12). Fukuda also argued that countries must develop a better global framework to address access challenges before the next influenza or other highly transmissible disease crisis breaks over the world (Fukuda, 2009).

This paper explores the call for a global framework on access to influenza vaccines and antivirals from legal and political perspectives. The analysis reveals that the path to creation of such a global framework is strewn with significant obstacles that are not overcome by incantations of the need for “equity, justice, and solidarity.” Legally, international law specific to global health and generally on the allocation and creation of resources provides few, if any, precedents for establishing a global access framework. Politically, the self-interested calculations of developed states with respect to supplies of influenza vaccines and antivirals do not create a firm basis for an international agreement on sharing. The decision by a number of developed countries on September 17, 2009, to share a percentage of their 2009-H1N1 influenza A vaccine supplies (White House, 2009), the U.S. postponement of its donation pledge because of domestic vaccine shortages, and the problems the donation program faced by the end of 2009 illustrate the harsh international politics of vaccine sharing, rather than revealing increasing commitment to greater equity, justice, and solidarity with people in low-income countries.

Access to Vaccines and Antivirals in Connection with 2009-H1N1 Influenza A

As responses to the 2009-H1N1 influenza A pandemic have unfolded, WHO officials and other experts have identified the problem that low-income countries will not have significant access to vaccine developed for the 2009-H1N1 influenza A virus (Chan, 2009a; Fidler, 2009; Fukuda, 2009; Garrett, 2009c; Gostin, 2009; Yamada, 2009) and may also face shortages of antiviral treatments (President’s Council of Advisors on Science and Technology, 2009; Whalen, 2009). The problem of equitable access to vaccine for influenza strains is not a new issue, having cropped up controversially in connection with access to vaccine for HPAI-H5N1 from 2007 to the present (Fidler, 2008). The reappearance of yet another controversy involving equitable access to influenza vaccine has stimulated arguments that the international community needs to avoid suffering through this problem with each new potentially dangerous influenza strain. Rather than ad hoc, reactive responses that favor access for countries with more wealth and power, the proposed solution involves crafting a global framework that will guide access to vaccines, antivirals, and potentially other kinds of response technologies and supplies (e.g., masks).

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