Law and power in pandemic negotiations: Policymaking via contract in South Africa's dealings with COVID-19 vaccine companies.

Abstract

COVID-19 vaccine distribution was marked by deeply unequal access for Africa, Asia, and Latin America. This article analyzes negotiations between government and pharmaceutical companies, through the case of South Africa, to better understand the mechanisms through which the international order produced this inequality. A process we label policymaking via contract undermined state power during the pandemic. Using a unique archive of unredacted contracts and negotiation documents obtained through court order, our analysis shows that, given limited supply, monopolised production, and fragmented global governance, companies exercised exceptional power and made allocations between countries. South African officials objected, but eventually acceded, to 'unacceptable' provisions requiring large payments without binding commitments on volume or delivery timing and little recourse for non-delivery. This helps explain South Africa's delayed vaccine roll-out. New policy was made via contract on vaccine indemnification, intellectual property, and export controls. Secrecy provisions particularly disempowered government. In future pandemics, power dynamics revealed in these negotiations call into question whether voluntary mechanisms for allocating medical countermeasures globally can ever achieve equity. Instead of focusing on funding pooled procurement, global health actors should make greater use of international law, technology transfer, and cooperation on contract transparency to shift dynamics and empower states.