Ending pandemics within the shadow of trade: reconciling equity in global health with coloniality

Abstract

Inequities in access to life-saving medicines during pandemics are not aberrations but symptoms of the postcoloniality of global health law. This legal framework sustains the racialised exclusion of Global South people, preserving remnants of early global efforts to contain disease in colonial spaces in the pursuit of furthering global trade. Tracing the historical trajectory of access to medicines from racialised colonial efforts aimed at disease containment to the modern intellectual property regime reveals how global health law, as a postcolonial technology, reinforces racialised hierarchies and associated structural vulnerabilities, but may also offer emancipatory promises. But to what extent can this emancipatory promise provide a platform for transformative structural change in global health? Through the scholarship on reparative justice, this article argues that reparations are a necessary intervention to address inequities in global health. In order to be effective, reparations must go beyond acknowledging past injustices to instituting material changes in global health through new international agreements that centre the global south, reforming structures to enable vaccine manufacturing in the global south and greater south-south collaborations to tackle a culture of dependency.

1. Introduction

The enduring inequities in access to essential medicines, which have shaped the global response to pandemics from HIV/AIDS and Ebola to Covid-19, are best understood through the longue durée of colonial health governance and its legal entrenchment in contemporary global health systems. These disparities must be understood not as incidental to, but rather symptomatic of, a historically embedded legal architecture that has systemically privileged certain populations while rendering others structurally vulnerable. The exclusion of large swathes of the Global South from life-saving therapies is not a failure of international law but rather a continuation of colonial logics that once governed medicine as a mechanism of control, extraction, and racialised exclusion. These inequities have their origins in the colonial medical enterprise, which prioritised the health of colonial administrators, settlers, and military personnel while neglecting, and at times actively endangering, the well-being of colonised populations.¹ This hierarchy, deeply racialised in its epistemology and practice, not only shaped the development of public health interventions but also structured early international health governance, particularly in the regulation of disease control and quarantine policies.² These foundations persist today, most notably in the international intellectual property regime that continues to dictate production, distribution, and affordability of essential medicines. The Agreement on the Trade-Related Aspects of Intellectual Property Rights³ (TRIPS Agreement) exemplifies this legal continuity, granting multinational pharmaceutical corporations (mainly headquartered in the Global North) monopoly control over life-saving drugs, thereby excluding many in the Global South from equitable access to medical innovations, especially during pandemics.

While soft law legal interventions, such as the United Nations General Assembly (UNGA) Declarations of Commitment on HIV/AIDS,⁴ the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration),⁵ and amendments to the TRIPS Agreement,⁶ have sought to introduce flexibilities permitting exceptions to allow access to medicines during crises, these measures have proven inadequate.⁷ Initiatives such as UNITAID and COVAX, which aimed to harness bulk purchasing to facilitate equitable distribution, ultimately fell short as structural measures that could be deployed in pandemics with serious medicine shortages. The pandemic starkly illustrated the enduring structural limitations of Global Health Law (GHL), which remains constrained by an essential contradiction of protecting health as a public good while safeguarding trade interests. This tension is not incidental; rather, it is an artefact of a colonial legal order that has historically prioritised economic power over collective health.

The implications of this history extend beyond the immediate health crises. As demonstrated by scholarship on the transatlantic slave trade’s enduring health effects, historical injustices have left indelible marks on contemporary global health outcomes.⁸ These material harms range from violence and lack of access to employment, health care, and education to enduring discrimination and racialisation.⁹ Studies have quantified the economic ramifications of these historical harms, estimating their material cost to be approximately USD 23 trillion.¹⁰

The question of reparations has increasingly gained traction in climate justice debates,¹¹ yet GHL has thus far been neglected as a site for reparative intervention. I present a conceptual and practical model of reparative justice that accounts for the ways in which GHL has been complicit in the reproduction of structural inequalities and proposes legal pathways for meaningful restitution. A reparative justice account foregrounds the main ideas: (i) that reparations must acknowledge past injustices and their ongoing effects on affected communities; and (ii) reparations need to create a difference in people’s lives, whether materially, psychologically, legally, civically or politically.¹² Therefore, reparations must go beyond financial assistance to be transformative and bring about the structural changes that are necessary for realising social justice, which is the only way to truly realise equity.

The rest of the article proceeds in two parts. Part II traces the historical links between colonial health governance, international law and contemporary access to medicines, illustrating how international legal frameworks have been instrumental in sustaining racialised health inequalities. This discussion is situated within postcolonial international legal theory, illuminating the postcolonial condition of international law, the structural design of international legal frameworks that enable the othering of postcolonial states, including through access to medicines. Part III conceptualises reparations as a legal and moral imperative for redressing colonial harms and examines their place within public international law and GHL, after which it articulates what reparations in GHL would entail, foregrounding access to medicines. Here, I articulate that a reparative justice framework necessitates an approach that moves beyond symbolic acknowledgement towards substantive redress. Reparations must be transformative, not merely compensatory, ensuring material, psychological, legal, civic, and political redress for affected communities.¹³ By foregrounding the necessity of reparations within GHL, I contend that redressing colonial injustices requires not only recognising their legal and historical impact on health governance but also articulating concrete mechanisms for structural transformation.

2. Global Health Coloniality And Access To Essential Medicines

Global discourse on the scarcity of essential medicines cannot be disentangled from the historical and enduring nature of coloniality. For postcolonial scholars, particularly those working within Third World Approaches to International Law (TWAIL), it is evident that the structural inequities in healthcare, pharmaceutical production, and disease control are products of deep-seated legal and political structures that date back to colonial rule and sustain present day injustices.¹⁴ Colonial-era notions of health, race, and governance have persisted into contemporary legal frameworks, facilitating ongoing disparities in access to essential medicines. This underscores the centrality of law in reproducing hegemonic power relations that privilege the Global North at the expense of the Global South.

2.1. Colonial medicine and the legalisation of discrimination

From the late nineteenth century onward, many colonial powers implemented what they deemed ‘colonial medicine’, ostensibly aimed at controlling diseases within colonised territories in ways that were highly extractive and sought to exert social control on the colonised.¹⁵ Authorities regularly dismissed indigenous healing practices as ‘primitive’ or ‘inferior’,¹⁶ thereby promoting Western medicine as the universal standard. Such medical policies served three interrelated functions.¹⁷

First, it portrayed local cultures and indigenous knowledge practices as inferior to justify the colonial project by implying that local populations were unable to manage their own health.¹⁸ Colonisers were deemed to be ‘civilising’ agents, bringing modern medicine to supposedly uncultured societies.¹⁹ This stance bolstered paternalistic ideologies of governance, portraying any violence or exploitation as an unfortunate but necessary cost in the broader mission of health improvement. Whether through forced vaccinations, quarantines, or non-consensual medical trials, colonial medicine functioned as a disciplinary mechanism, ensuring that the colonised were continually reminded of their subservience.

Second, racial inequalities were overtly codified in legal and regulatory structures of colonial medicine.²⁰ Colonised subjects were often depicted as inherently diseased or prone to contagion.²¹ This framing legitimised draconian laws and policies ranging from the formation of a category of ‘native’ medicine which enabled the segregation of hospitals and strict quarantine laws that disproportionately targeted the colonised. Crucially, these arrangements did not terminate with the formal demise of colonial regimes; rather, they evolved into contemporary global health systems, continuing to marginalise large swathes of populations in the Global South.

Third, colonial governance was primarily concerned with preserving the health of workers critical to the colonial economy; often at the expense of broader public health measures for local communities.²² The viability of a colonial plantation or mining operation typically overshadowed any genuine concern for indigenous well-being. ²³

Importantly, what these histories illuminate is that the governance of medicine and health was, from the outset, a legal-political issue. Legislation and administrative regulations codified racial segregation in hospitals or allowed for indefinite quarantine.²⁴ The concept of ‘medical police’, prevalent in several empires, positioned local subjects as perpetual suspects of spreading disease, thereby necessitating intrusive governance in order to sustain extraction.²⁵

2.2. Law, early global public health control measures and coercive border policing

Law has been central to the idea of global containment of disease since the early twentieth century. The development of trade routes linking Europe to its colonies precipitated anxieties about contagion. Imperial powers had dual imperatives: expand commerce through profitable global networks, but also insulate their territories from colonial diseases.²⁶ This tension yielded thirteen international agreements (by the early twentieth century) aimed at harmonising and coordinating quarantine and health regulations.²⁷

One key arrangement was the 1892 International Sanitary Convention, focusing exclusively on cholera and the sanitation measures required for shipping routes into Europe, particularly via the Suez Canal.²⁸ The underlying fear was that India, seen as a hotbed of cholera, would transmit the disease to Europe through global shipping lanes.²⁹ Similarly, the 1893 International Sanitary Convention mandated notification procedures for cholera outbreaks, granting legal sanction to a set of exclusions designed to keep ‘infected’ populations at bay.³⁰ These regimes were framed as technical or scientific endeavours, yet they were deeply influenced by prejudices that associated non-White bodies with contagion and social disorder.³¹

These early international agreements on health exemplify the postcoloniality of international law, buttressing hierarchical global orders, and can be read as what Makau wa Mutua describes as discursive and legal technologies that disciplined the ‘other’, by recasting entire peoples as disease carriers who must be contained for the greater good of global trade.³² Hence, these regimes set the stage for modern global health governance, where the health of the colonised was subsumed within concerns for trade to ensure accumulation.

Modern States have also continued the practice of border closures as a reflex response during pandemics or outbreaks, despite the World Health Organization (WHO) cautioning that such measures often have limited epidemiological benefit.³³ Crucially, these closures primarily target countries in the Global South, reinforcing stereotypes that conflate non-Western populations with disease. A salient illustration is the use of discriminatory border closers in the Covid-19 pandemic, reifying the idea of the border as a legal site for exclusion of the foreign ‘other’. Despite the high Covid-19 case rates in the United States of America (USA),³⁴ the United Kingdom (UK) did not impose similar travel bans on USA travellers, even though it had previously expressed scepticism about border closures, citing concerns about trade.³⁵ Similarly, South Africa’s role in sequencing and sharing the Omicron variant with the global community, was met with punitive border closures by European and North American countries, ironically punishing South Africa, the very State that contributed significantly to global scientific knowledge.³⁶ These measures vividly recall colonial ‘sanitation cordons’, designed to keep the imperial centre safe while undermining any reciprocal sense of solidarity.³⁷ Equally striking was the rapid decision by nations of the Global North to sever ties not just with South Africa but in many cases with all African countries following South Africa’s genomic sequencing of the Omicron variant.³⁸ This was particularly problematic because later sequencing illustrated that the variant had already been circulating in Europe.³⁹

Still, border closures are not limited to North-South relations. During the 2014–2016 Ebola crisis in West Africa, numerous African countries shut their borders to neighbouring States without confirmed cases.⁴⁰ This form of ‘coercive control’ has strong colonial echoes, further normalising the notion that certain bodies (predominantly those of colour) pose a universal biosecurity threat. Meanwhile, flows of samples and research teams from West Africa to Europe and North America were often permitted, underlining the economic prerogatives that remain deeply entwined with these policies.⁴¹ Through these African border closures, we can see the inherent postcoloniality that animates the operation of international law, where even postcolonial States reproduce coercion, often, through a misguided belief that this will insulate them from travel bans and protect their trade interests.

What these practices represent is the continuity in the structural violence that animates global health governance. TWAIL scholar Bhupinder S Chimni has long argued that contemporary international law often rationalises power asymmetries through purportedly neutral norms.⁴² Whether via quarantine laws or contemporary travel bans, law becomes the instrument of selective inclusion and exclusion, reinforcing the subordination of the Global South under a veneer of scientific logic.

2.3. Reproducing inequalities through the political economy of pharmaceutical production within the multilateral order

2.3.1. Extracting raw materials from the global south

During the colonial era, certain regions of the Global South became sites for extracting raw materials crucial to drug manufacturing.⁴³ These territories often housed botanical or mineral resources essential for creating pharmaceutical products used both locally and in metropolitan centres. European (and, later, American) corporations built subsidiary operations in colonised zones, exploiting the cheap labour and raw materials yet precluding any meaningful transfer of knowledge or technology.⁴⁴ However, such arrangements were designed to suppress industrial development, ensuring that colonies remained dependent on imports for medical supplies, including pharmaceuticals. Even when pharmaceuticals were being produced, countries in the Global South rarely had comprehensive industries and largely created filler drugs that were incapable of sustaining a self-sufficient pharmaceutical sector. This allowed production and research to remain concentrated in Europe and later in the USA.⁴⁵

The transition to post-independence did not substantially dismantle these extractive structures. Several African States, for instance, attempted to establish domestic pharmaceutical firms in the early postcolonial phase.⁴⁶ Yet, these were frequently hamstrung by a confluence of factors: insufficient capital investment, reliance on imported machinery, and little State capacity for research and development.⁴⁷ These nations faced significant structural barriers in developing their own pharmaceutical production capacity. Geoffrey Banda, Samuel Wangwe and Maureen Mackintosh argue that while some pharmaceutical industries did exist in the early post-colonial period, many were State-run or heavily dependent on foreign technology and investment.⁴⁸ Many of these pharmaceutical industries collapsed in the 1980s and 1990s due to the Washington Consensus which led to a multilateral trading system that frowned against national protection for infant industries and introduced tighter rules on State aid in order to ostensibly level the playing field for global goods and services.⁴⁹ The Washington Consensus refer to a list of ten economic reforms promoted by the International Monetary Fund, World Bank, and US Treasury in the 1980s and 1990s, encouraging trade liberalization and privatization of state-owned enterprises and other neoliberal reforms, especially in developing countries, primarily Latin America.⁵⁰ These policies dismantled protectionist measures that had initially supported domestic pharmaceutical industries, leading to a dominance of multinational corporations in African medicine markets for instance.⁵¹

2.4. Experimenting on ‘other’ bodies from the global south

2.4.1. Colonial precedents for unethical experimentation

The exploitative character of colonial medicine did not merely revolve around resource extraction or quarantines; colonised peoples were frequently subjected to clinical trials without consent. The impetus behind this was twofold: the colonised were considered readily available test populations, and the constraints of medical ethics were rarely applied to them. The infamous Tuskegee Syphilis Study (1932–1972) in the USA, which deliberately withheld treatment from African American men to observe the progression of untreated syphilis, was directly influenced by earlier colonial medical experiments conducted in the Philippines, Algeria, and India.⁵² Each of these experiments was buttressed by legal apparatuses that shielded institutions and practitioners from accountability.⁵³ Whether through colonial ordinances authorising medical surveillance or domestic laws in the USA that disregarded informed consent, the pattern was consistent: racialised populations were rendered legally and morally expendable. The birth of modern bioethics through modern institutional review boards (IRBs) tasked with enforcing informed consent or international guidelines like the Declaration of Helsinki emerged only after public outcry over such abuses which underscores how structural power shapes the definition and enforcement of ethical standards.⁵⁴

2.4.2. Contemporary outsourcing of clinical trials

In the contemporary era, as it became increasingly difficult to experiment in the Global North, clinical trial research has been outsourced abroad to sites in the Global South to ensure that clinical trials could scale up.⁵⁵ In many of these sites, pharmaceutical companies rely on much weaker standards. Large pharmaceutical corporations often situate clinical trials in the Global South to reduce costs and expedite approvals.⁵⁶ Regulators in wealthy nations accept data from these trials, yet local participants rarely benefit from guaranteed treatment or affordable drug pricing once the products reach the market.⁵⁷ In effect, new knowledge is extracted from the Global South, while the resulting innovations remain locked behind patent protections and commercial trade secrets in the North. Meanwhile, the participants themselves, hailing from vulnerable communities, are often left with negligible recourse if experiments cause harm. In Uganda, for instance, clinical trials for anti-retroviral drugs continued to put patients on a placebo and were not given the drug even after the clinical trial had shown that these drugs were effective.⁵⁸ In effect this means that although the Global South has remained an important site for experimentation it does not fully share in the proceeds of new drugs, as these are still subject to patents that are bound up in an extractive intellectual property regime.

2.5. Restricting local pharmaceutical production in the Global South

A major factor limiting pharmaceutical production in Africa and other parts of the Global South is the intellectual property regime, particularly the TRIPS Agreement enforced by the World Trade Organization (WTO). The patent system continues to favour pharmaceutical companies based in the Global North, allowing them to maintain long-term monopolies over essential medicines while restricting local production in the Global South.⁵⁹ Crucially, the enforcement of strict patent protections has inhibited the development of generic medicine production in African countries, despite the clear need for affordable medicines to address public health crises.⁶⁰

Modern intellectual property law’s foundations can be traced to colonial concepts of property.⁶¹ The property regimes that once facilitated land expropriation, forced labour, and resource extraction were easily adapted to protect knowledge and innovation forms deemed lucrative for Western corporations. Amaka Vanni’s analysis is particularly illuminating, as she contends that a historical examination of the contemporary patent regime shows how colonialism, racism and inequality became deeply sedimented into the international intellectual property law, particularly patents, to enforce a particular type of property rights and to protect the economic interest of the transnational capitalist class.⁶² This assertion underscores how the modern intellectual property system continues to serve as an instrument of economic imperialism, whereby the commodification of life-saving medicines is not simply an unintended consequence, but a deliberate outcome designed to maintain the lucrative monopolies of pharmaceutical corporations. Consequently, the transformation of essential medicines into market commodities is intrinsically linked to the legacies of colonial extraction and the subsequent racial capitalist logics that define global trade relations, thus perpetuating a system in which the health needs of populations in the Global South are subordinated to the profit imperatives of the Global North. As such, the enforcement of strict intellectual property regimes is inextricably linked to the preservation of corporate profits, a mechanism that operates to the detriment of public health in the Global South. The consequent commodification of healthcare is emblematic of a broader system of racial capitalism in which the accumulation of capital is predicated upon the exploitation and devaluation of non-white lives, thereby perpetuating an inequitable global order that is as much legal as it is economic.⁶³

2.6. Vaccine apartheid and the limitations of global health law

By late 2022, many states in the Global North had inoculated more than 80% of their populations, while vast swathes of the Global South were struggling to reach a 25% vaccination threshold.⁶⁴ Activists described this profound disparity as ‘vaccine apartheid’, underscoring the structural violence that underlies global health inequities.⁶⁵ The term’s invocation of apartheid was not accidental; rather, it reflected the argument that, like South Africa’s system of legislated racial subjugation, these inequities were the predictable outgrowth of entrenched colonial power asymmetries. Legal, economic, and institutional mechanisms, particularly intellectual property laws, maintain the Global South in a state of dependency, preventing equitable access to life-saving medicines. Just as apartheid employed legal measures to divide resources, healthcare, and mobility along racial lines, intellectual property laws depend on a similarly exclusionary logic, permitting wealthier and more politically powerful states to determine who is granted access to life-saving treatments.⁶⁶

Two significant factors undergird these ongoing inequalities. Firstly, the much-touted TRIPS ‘flexibilities’ frequently fail to address the real needs of Global South States.⁶⁷ For instance, proposals to waive patent rights for Covid-19 vaccines, championed by South Africa and India, faced intransigent opposition from key players, including the USA, the European Union (EU), and the UK.⁶⁸ This resistance, whether motivated by self-interest or the desire to safeguard pharmaceutical industries interests, effectively nullified the possibility of manufacturing vaccines in the Global South. When Global South States have invoked compulsory licensing, they encounter considerable external pressure, as illustrated by Colombia’s experience with antiretroviral HIV/AIDS medication for which it remains entangled in ongoing litigation with the drug’s patent holder.⁶⁹ Moreover, the complexities of mRNA technology further limited the efficacy of TRIPS’ flexibilities by rendering reverse-engineering efforts impracticable without substantial technology transfer – assistance that remained under the purview of pharmaceutical conglomerates in the Global North.⁷⁰

Secondly, philanthropic or donor-based strategies, exemplified by initiatives like COVAX, proved insufficient in redressing these disparities.⁷¹ Although ostensibly designed to foster equitable vaccine distribution through pooled procurement, many wealthy governments opted to hoard vaccines or merely donate surpluses, rather than commit fully to collective bulk-purchasing and equitable allocation.⁷² The resultant shortfalls left Global South States beholden to ad hoc donations or bilateral agreements, effectively mirroring patterns of colonial paternalism.⁷³ Even global funding agencies, such as the EU, which allocated resources for vaccine production initiatives, rarely addressed the more fundamental requirement of technology transfer to countries in the Global South which would have enabled them to make vaccines themselves.⁷⁴ Consequently, substantial pledges of financial support were unable to yield meaningful local production when patent protections and legal barriers to manufacturing remained intact.

In the aftermath of the Covid-19-pandemic, it has become apparent that the structural logic of vaccine apartheid is not merely an economic phenomenon but a broader manifestation of racial capitalism, wherein the residual legacies of colonialism shape legal frameworks, trade policies, and technology flows.⁷⁵ Scholars such as Achille Mbembe underline how this entrenched hierarchy results in the systematic exposure of certain populations – predominantly in the Global South – to heightened vulnerability, ill health, and even premature death.⁷⁶ While the WHO has proposed reverse-engineering mRNA vaccines and assisting countries in establishing domestic vaccine production,⁷⁷ these measures remain undermined by the absence of robust legal and political mechanisms to ensure technology transfer. Reliance on external funding programmes that impose stringent conditions often delays or constrains domestic vaccine manufacturing capacity.

Ultimately, the phenomenon of vaccine apartheid stands as a stark indictment of GHL’s deficiencies in balancing public health with entrenched commercial interests. As long as intellectual property frameworks remain tailored to safeguarding corporate profits in the Global North, and philanthropic approaches continue to place the Global South in a position of perpetual reliance, the fundamental inequities of the global health architecture will persist – rendering future pandemics and health crises more likely.

2.7. The postcoloniality of international intellectual property law

The persistence of colonial legacies in the TRIPS regime reveals a historical continuum whereby legal frameworks operates mechanisms that systematically entrench inequalities in access to essential medicines. The regime which is at the heart of sustaining pharmaceutical manufacturing in the Global North is not sustainable without reproducing hierarchies, meaning that some countries, predominantly postcolonial States, are perpetually doomed to be customers for drugs produced from elsewhere.

The globalisation of property rights has led to the material dispossession of formerly colonised people.⁷⁸ This form of dispossession was crucial to the formation of international law.⁷⁹ That the impetus for TRIPS negotiations was the threat posed by increasingly strong pharmaceutical industries in the Global South like Brazil and India, which had been protected much in the same way as many industries in the Global North had been in their infancy.⁸⁰ In response to this threat, pharmaceutical companies pushed for the inclusion of intellectual property rights in the TRIPS Agreement as part of a broader package of international economic agreements within the WTO, illustrating how the coercive nature of international law negotiations reinforced the unequal bargaining asymmetries at the core of WTO negotiations.⁸¹ Far from being a peripheral concern, the issue of intellectual property rights is deeply interwoven with broader discourses on sovereignty and development. The TRIPS regime illuminates that so-called ‘sovereign’ States in the Global South are constrained in their capacity to formulate independent health and industrial policies.⁸² This scenario is emblematic of what Pahuja terms ‘tradeled development’:⁸³ a model that privileges the free flow of capital and goods while curtailing States’ regulatory autonomy to safeguard public health, a continuation of the post-colonial era restrictions on industrial development in formerly colonised territories.⁸⁴

Without dismantling the neocolonial structures that govern access to medicine, future pandemics will only replicate the same injustices, ensuring that pharmaceutical sovereignty remains concentrated in the Global North while the Global South continues to suffer disproportionately from preventable disease and death.⁸⁵ Vaccine apartheid is thus not merely a crisis of Covid-19, but a symptom of a much deeper historical and structural problem, one that demands decolonisation of global health systems.

3. Reparations

3.1. Conceptual foundations of reparations

Reparations, originally derived from the word ‘repair’, refers to the process and result of acknowledging and remedying the damage or harm caused by an unlawful act.⁸⁶ The idea of reparation, of amends owed for wrongs and wrongful harms, is ancient, universal, and a basic intuition of justice.⁸⁷ More recently, the High Commissioner for Human Rights, defined reparations as actions that redress human rights violations by providing non-material or material benefits to the affected individuals or groups.⁸⁸

There is an interdisciplinary literature on reparations. A lot of the earlier literature focused on remedying the longstanding impacts of the transatlantic slave trade.⁸⁹ Increasingly, however, the scope of research on reparations has expanded to include reparations for indigenous peoples’ rights,⁹⁰ colonialism,⁹¹ war crimes and genocide⁹² and increasingly ongoing events such as environmental justice and climate harms and the enduring harms of cultural or historical events.⁹³

Reparations were initially used at the individual level to enable those whose rights had been violated to make claims against the State or non-State individuals.⁹⁴ Following the end of World War II through the Nuremberg and Tokyo trials, the international community attempted to formulate ideas of collective justice through ideas of remedial justice in national and international contexts.⁹⁵ The customary forms through which reparations are conceived, were subsequently codified in the UN’s Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles). The Basic Principles codified various forms of reparations which have largely been used after humanitarian crises as restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.⁹⁶

In a 2020 report, the UN Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance highlighted the need for reparatory measures that prompt substantive structural reforms, emphasising how the enduring legacies of slavery and colonialism contribute to current forms of structural racism and demands for reparative justice.⁹⁷ In particular, the Rapporteur noted that colonial-era institutional frameworks persist in reproducing and intensifying longstanding inequalities.⁹⁸ A parallel view was offered by the Group of Experts on People of African Descent, who explicitly connected the harms stemming from the transatlantic slave trade to ongoing contemporary injustices.⁹⁹ Such arguments are situated within a broader decolonial tradition that locates the longue durée of slavery and colonialism in reparative thought and calls for structural change.¹⁰⁰

Effective reparation programmes encompass both retrospective and prospective dimensions.¹⁰¹ The retrospective dimension addresses historical injustices, offering redress and compensation to those harmed by past wrongs. Meanwhile, the prospective dimension looks towards the future, focusing on policies and practices that dismantle the structural inequalities ensuring that the structural conditions that allowed for past injustices are actively dismantled, thereby averting future harms.¹⁰²

3.2. Reparations in global health law

A central question arises when tracing a colonial genealogy of GHL’s formation and its impact on access to medicines: can one build a credible argument for reparations under international law based on these colonial origins? If so, what might constitute the legal and conceptual underpinnings of such a claim? Scholars working in the TWAIL tradition have consistently maintained that the legacies of slavery, colonialism, and subordination fundamentally shape international law to the detriment of States in the Global South.¹⁰³ These scholars likewise argue that ‘western reparations’ are already woven into international legal and economic regimes, serving to benefit States in the Global North through global capital networks, extractive sovereign debt structures, and treaties that enshrine property rights at the expense of other interests.¹⁰⁴ By contrast, attempts by formerly colonised States to articulate demands for reparations often encounter resistance within these same legal frameworks. Nevertheless, indications exist that international law could recognise or respond to reparations claims for historical colonial harm.¹⁰⁵

3.3. Legal obstacles to reparations

Those attempting to use international law for reparations have faced three legal obstacles. The first is the issue of causation: Can historical colonial wrongs still be seen as causing present-day harms, given the passage of time and the possibility of mitigating factors, some of which may have been caused by post-colonial governments themselves?¹⁰⁶ Secondly, the intertemporal doctrine holds that acts should be assessed by the legal standards prevailing at the time they occurred.¹⁰⁷ This raises the dilemma of whether (if colonial subjugation was formally legal under historical norms) liability for colonial-era wrongdoing could be legally recognised at all. Lastly, the question of corporate liability emerges as international law typically defines States as primary subjects, leaving multinational corporations (which often reap substantial benefits from contemporary forms of economic and health-related exploitation) beyond direct legal accountability.¹⁰⁸

Recent scholarship, however, has begun to propose legal theories and interpretive approaches aimed at addressing these hurdles. Henning Grosse Ruse-Khan and Ashrutha Rai, for instance, emphasise a focus on ongoing harm rather than purely historical counterfactuals, contending that accusations of postcolonial government inefficiency do not negate the fundamental colonial basis for harm; and thus the potential for reparations.¹⁰⁹ As regards the intertemporal doctrine, the International Court of Justice’s (ICJ) reasoning in the advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965¹¹⁰ offers a precedent wherein the ICJ rejected the view that a right must be codified in law at the precise time of the initial violation in order to be invoked subsequently.¹¹¹ Moreover, certain human rights bodies like the Inter-American Court of Human Rights have similarly found that invoking temporal jurisdiction to deny claims can perpetuate ongoing violations.¹¹² Finally, while corporate subjecthood in international law remains unsettled, scholarship has increasingly questioned whether the human rights obligations of multinational enterprises (and the investment protections they enjoy) necessitate a rethinking of accountability frameworks when corporations profit from structural harms inherited from colonial rule.¹¹³

3.4. Reparations in international human rights law

Certain domains of international law, such as human rights law or transitional justice frameworks, have historically proven more amenable to the concept of reparations.¹¹⁴ For instance, reparations mechanisms have been implemented in the aftermath of armed conflict or serious human rights violations, often underpinned by instruments and jurisprudence that acknowledge State responsibility and victim redress. The Truth and Reconciliation Committee of Sierra Leone, for instance, recommended a comprehensive reparations program for victims of the 1991–2002 armed conflict, that included extensive health measures such as free physical and mental health for amputees and victims of sexual violence, as well as broader social economic rights for those whose health had been impacted through monthly pensions, education programs and microcredit projects for the severely wounded.¹¹⁵ However, despite the establishment of the Sierra Leone Reparations program, only financial aid through cash grants, minimal medical interventions, vocational training and symbolic measures were effected due to lack of funding.¹¹⁶

By contrast, achieving reparations specifically for global health harms poses unique legal and practical hurdles. While humanitarian law and transitional justice processes might integrate certain forms of medical assistance or rehabilitation, there is comparatively less precedent for reparations that address ongoing structural inequities in global health.¹¹⁷ As a result, health-related claims have seldom gained traction as explicitly ‘reparative’, which suggests that establishing direct legal and conceptual pathways for health reparations is a pressing gap in international law. Including health considerations in future reparations frameworks would necessitate both recognising the specific ways global health inequities evolve and devising enforceable standards capable of compelling structural change, an approach that conventional reparations programmes have not consistently delivered.¹¹⁸

3.5. Reparations, health and human rights

Health and human rights scholars contend that the right to health stands at the heart of GHL.¹¹⁹ Accordingly, approaching reparations through a human rights framework could prove fruitful, particularly as numerous scholars have conceptualised the worldwide inequity of access to medicines as a form of human rights violations.¹²⁰ Under human rights law, as a constructed legal system, reparations function as a formal means of redressing harm arising from infringements. Felix Torres, for example, underscores the significance of the international human rights regime by emphasising its focus on the inherent dignity and worth of each individual; a principle that not only undergirds the moral rationale for reparations but also drives corrective justice in situations of human rights breaches.¹²¹ In this context, reparations provide a tangible set of measures aimed at rectifying infringements and affording victims some measure of restitution.

However, Torres’ understanding of reparations presupposes a relationship between the State the individual.¹²² This perspective is especially relevant in that it informs how one might conceptualise economic, social and cultural rights, such as the right to health, in line with the recommendations of the Committee on Economic, Social and Cultural Rights (CESCR). In cases of violence, the CESCR has emphasised the need for public authorities to enhance the socio-economic programmes to increase the number of people enjoying their economic, social and cultural rights.¹²³

To situate reparations beyond the national sphere and thereby connect colonial-era injustices to a human rights-based framework, one must consider broader systems of redistribution, which in human rights discourse derive from the obligation of international assistance in the International Covenant on Economic Social and Cultural Rights (ICESCR).¹²⁴ Article 2(1) of the ICESCR enjoins states, both individually and ‘through international assistance and co-operation’ to fulfil their obligations under the treaty, including the realisation of the right to the highest attainable standard of health.¹²⁵ This requirement has been expounded through various General Comments, notably General Comment No. 14, which clarifies that sates carry a responsibility to support other states in fulfilling the right to health; an interpretation that the CESCR has repeatedly affirmed.¹²⁶

Such a human rights-based approach to a ‘duty to assist’ aligns with wider theories of redistributive justice, as articulated by Elise Klein and Elizaveta Fouksman who posit that individuals who have suffered historical violations should be integrated into larger redistributive frameworks designed to restructure unjust socio-economic conditions while enabling ‘recognition and truth telling.’¹²⁷ This vision encompasses both the formal acknowledgement, already evident in certain human rights documents that link prior transgressions with socio-economic fragility affecting parts of the Global South,¹²⁸ together with an explicit obligation for responsible states to direct resources towards strengthening the socio-economic systems of less privileged states. From this perspective of redistributive justice, authentic justice remains incomplete in the absence of reparations. Yet, just as with many human rights standards, the precise meaning of implementing this obligation remains ambiguous in current practice.¹²⁹

3.6. Reparations in practice

Although these objections are not insurmountable, apart from the UN reports which have contributed to the idea of symbolic reparations,¹³⁰ there have been very few attempts at implementing such reparations. For instance, in 2022, the Dutch Prime Minister, Mark Rutte, offered a formal apology on behalf of the Netherlands for its role in enslaving approximately 600,000 people from Africa and Asia through the transatlantic slave trade during the 17th and 18th Centuries.¹³¹ Alongside the apology, the Dutch government pledged to spend EUR 200 million on awareness projects and a further EUR 27 million to establish a slavery museum.¹³²

Similarly the German government has apologised for colonialism in Tanzania,¹³³ and the Danish government has also issued an apology for its participation in the transatlantic slave trade.¹³⁴ In the context of the UK, King Charles III expressed personal and profound sorrow for Britain’s role in the transatlantic slave trade while giving speeches in Rwanda and Jamaica in 2024.¹³⁵ However, the British government has been reluctant to give any official apology or recognition of the UK’s role in the slave trade.¹³⁶

Attempts to achieve material reparations which involve forms of compensation have been challenging to realise. For example, in 2021, Germany acknowledged having committed genocide during its colonial rule of Namibia and agreed to pay EUR 1.1 billion in financial aid.¹³⁷ However, the agreement avoided using the terminology of reparations and framed the payment as aid instead.¹³⁸ Such measures, when framed as aid rather than reparations, makes it dubious whether this can truly constitute reparative justice.

With respect to health, reparative efforts on slavery acknowledge the intergenerational health harms that continue to impact the descendants of slavery with worse health outcomes than their white counterparts in the USA.¹³⁹ These reparative strategies have focused on structural changes to three areas of harm affecting black communities in the USA: discrimination against black doctors in training, large scale medical harms inflicted on particular groups such as Tuskegee experiments,¹⁴⁰ and ongoing intersectional harm as is evident in the significantly higher mortality rate for black women compared to their white counterparts.¹⁴¹ In response, attempts at reparations have been mixed. Symbolic reparations in the form of acknowledgement of racialised harms, such as the American Medical Association which was founded in 1847, which finally acknowledged in 2008 its historical role in the segregation of healthcare in the USA and the exclusion of black physicians.¹⁴² However other attempts, for instance to establish trusts that structurally respond to persisting inequities in black women, remain in their conceptual stages.¹⁴³

While colonial practices yield enduring inequities in access to essential medicines, one can argue that international law’s existing normative commitments in fields such as human rights and global health impose continuing duties. Though legal doctrines like causation, intertemporal law, and the limited liability of corporations pose formidable difficulties, emerging analyses suggest that these doctrines might be interpreted or revised to accommodate reparative claims.¹⁴⁴ Whether such arguments can gain traction in practice remains uncertain; particularly in view of the intense political opposition faced by States and communities who seek restitution for colonial injustices. Yet, these theoretical openings reflect a growing acknowledgment that reparation for colonial-era harm may be not only legally plausible but morally and structurally imperative, especially as inequities in public health continue to expose the legacies of imperial extraction.

4. Towards A ‘Reimagined Reparatory Approach’ In Global Health Law

To reimagine and strengthen the concept of health reparations, I propose a more comprehensive approach that addresses the deep-rooted colonial systemic inequities embedded in the global access to medicines, which perpetuate continuous harm. My vision builds on Olufemi Táíwò’s ideas, which conceptualise reparations as a tool within a broader worldmaking project to create a more just and equitable system.¹⁴⁵ Táíwò criticises certain forms of reparations such as symbolic reparations and public apologies, arguing that these can be exploited as they are often the cheapest forms of reparations.¹⁴⁶ His account is grounded in the understanding that if unjust systems remain in existence and continue to reproduce themselves, they will perpetuate harm for future generations.¹⁴⁷

There is an inherent contradiction in trying to seek reparations within Global Health Law after acknowledging the colonial system that underlines it. For some scholars nothing short of a total change of systems can ever lead to the structural and material changes that are necessary.¹⁴⁸ However, it is possible to critique the international law system while also strategically advocating for its reform.¹⁴⁹ Taiwo’s conception allows us to acknowledge that the reparations as part of redistributive justice will always be a gradual struggle that utilises different forms of struggle ie; political, legal and grassroots struggles. This is particularly important with a problem like access to medicines where any structural changes must account for the material realities of those who need access to medicines. For instance, while we may think that programs like donor programs such as COVAX/UNITAID are colonial in nature, they still have saved people’s lives. Therefore, it is important to acknowledge that a focus on changing international law through for instance calling for countries to walk away from the TRIPS Agreement is unlikely to be successful and efforts to create greater access to medicines through international law will be only be a partial part of broader struggles.

Drawing on Taiwo’s remaking of the world system, I reimagine reparations for health in three parts. First, collective reparations which enable us to make links around the collectivist aspect of the right to health in where one’s individual rights are contingent on the rights of others thereby enabling global solidary arguments. This perspective is also particularly relevant within the context of the global south where there is a strong tradition of relational as opposed to individualistic rights.

Thinking of collective obligations enables us to think about the second part which would involve the transformation of systems through what I term transformative reparations, which is an evolving approach to address historical injustices, that goes beyond traditional forms of reparations such as compensation. This concept aims to provide redress for past wrongs and to change fundamentally the structures and systems that allowed those injustices to occur.¹⁵⁰ Transformative reparations are future-oriented and enable systemic change. This approach is heavily advocated in feminist literature, as transformative reparations focus on providing redress by tackling the structural and socio-economic inequalities faced by affected communities, rather than merely providing monetary reparations, which would return them to a state of inequality, poverty, marginalisation, and discrimination.¹⁵¹ Therefore, providing transformative reparations (that takes into account impacts such as intergenerational trauma, unfavourable health outcomes linked to colonial medicines and looting of resources) such as fixing unequal trade relations between the Global South and North is the only just and equitable form of reparations.

The third phase of this approach is to take agency seriously. It is important to recognise the ways in which states from the Global South are reclaiming the global health space to articulate their demands. There are already demands in place by groups such as the Equity Group which is a group that was established to promote a fairer distribution of resources within the GHL system and has articulated its demands and what strategies they are using both in international negotiations but also outside them.¹⁵²

4.1. Reparations: GHL potential or mirage?

Reparations necessitate moving beyond programs to structures through the idea of a new Pandemic Treaty. In the wake of the Covid-19-pandemic, the Director-General of the WHO established the Independent Panel for Pandemic Preparedness and Response which was tasked with initiating an independent and comprehensive evaluation process to review the devasting impact of the pandemic, particularly regarding vaccine inequality, and to propose a way forward.¹⁵³ In 2021, WHO and its member States officially set up an intergovernmental negotiating body to draft and negotiate an international instrument for pandemic prevention, preparedness; commonly referred to as the Pandemic Treaty of Accord.¹⁵⁴ The new treaty was intended to prioritise equity, both in the negotiating process and in its outcome.¹⁵⁵ This focus on equity was particularly important as it underscored the paramount necessity of ensuring equitable access to vaccines, countermeasures, diagnostics, as well as fostering broader structural health system resilience through the promotion of Universal Health Coverage.

The Pandemic Accord, therefore, presented an opportunity to create structural changes to the international legal system to prevent the reproduction of systemic inequalities.¹⁵⁶ The Africa Group’s strategy for the treaty negotiations involved uniting around common positions and presenting a cohesive stance on key issues to increase the likelihood of their perspectives to be acknowledged, considered, and incorporated. Their arguments were rooted in equity, and they were particularly vocal in three key areas. At the heart of their approach was the notion of African agency, which centres a post crisis view of what equity means to them within their of negotiations for the Pandemic Treaty.¹⁵⁷ Working with the African Union, they have attempted to link vaccine manufacturing to a broader political project that has at the heart of it technology transfers so African countries can make the vaccines they need not only through pandemics but also ensure that they are sustainable. Additionally, there is an increasing realisation that in order for these vaccine manufacturing hubs to work in Africa, they will need to rely on broader South-South collaboration.¹⁵⁸

4.2. Vaccine manufacturing and the role of technology transfers

There have been increasing calls to build the capacity for local manufacturing of vaccines, diagnostics, and therapeutics in Africa.¹⁵⁹ The African Union has already pledged to increase the share of locally manufactured vaccines from 1% to 60% by 2040, an effort supported by the Global Vaccine Alliance’s recent establishment, African Vaccine Manufacturing Accelerator (AVMA). This initiative is set to provide up to one billion US dollars in funding to bolster vaccine manufacturing on the continent.¹⁶⁰

At the heart of this initiative is the recognition that existing treaties, such as the TRIPS Agreement, must be challenged in order to engender a reparatory system. In the interim, incremental changes through a new Pandemic Accord could allow the provision of both direct and indirect incentives for technology transfer to ensure that countries in the Global South can exercise autonomy in manufacturing of routine medical products in order to enable the long-term survival of local vaccine manufacturing. Additionally, there have been calls for mandatory technology transfer during pandemics to ensure equitable access to essential medical products.¹⁶¹ One of the most promising approaches to facilitating technology transfer has been proposals to link it to research and development. These proposals suggest that pandemic funding mechanisms should provide multinational corporations with research and development funding in exchange for the compulsory transfer of technology, ensuring that innovations benefit a broader global population rather than being restricted by intellectual property barriers. ¹⁶²

4.3. South-South cooperation

The promotion of South-South partnerships serves as a mechanism to disrupt reliance on vaccine donations from the Global North. Reparative justice seeks to rethink the more equitable and resilient global health responses by diversifying production locations from the global north to the south.¹⁶³ Given the uneven dynamics, South-South partnerships are critical to the sustenance of this process. For instance, the Health Development Partnership for Africa and the Caribbean (HeDPAC), launched in December, 2023 is a collaboration by leaders from Rwanda, Guyana and Barbados which aimed to transfer knowledge aimed at strengthening health infrastructure between Africa and the Caribbean in vaccine manufacturing.¹⁶⁴ HeDPAC aims to produce not only vaccines but also oncological drugs, and women’s health products in order to ensure that vaccine manufacturing is sustainable.¹⁶⁵ As partnerships that involve South-South partnerships evolve over time, they aim to upend the colonial North/South dependencies that exist in Global Health.

5. Conclusion

At the moment, the fight for reparations feels abstract and highly speculative but as this article has illustrated there is a causal link between the harm of colonialism and the resulting lack of access to essential medicines. Symbolic and material reparations through changes to GHL structures are critical in order to create long term sustainable changes to these problems.

While the fight for reparations and its blueprint may currently seem abstract, it is rooted in a profound need to address the historical injustices of colonialism and their ongoing impact on access to medicines. Historical precedents, such as the reparations paid to Holocaust survivors and the acknowledgment of injustices faced by Indigenous populations, demonstrate that change is possible when there is a collective will to address past wrongs. Transformative reparations are vital to restructure global health systems, and it is the only way of fostering long-term sustainable change. The viability of these reparations, although challenged by practical concerns, such as political and legal resistance, is grounded in the hopeful pursuit of justice and equity that underpins international law. As the global community continues to grapple with the legacies of colonialism, the call for reparations must remain at the forefront of the discourse on global health equity.