Two years on and still counting.Footnote 1 The COVID-19 pandemic has exposed the fragility of existing legal frameworks for global health governance (GHG) – laying bare the policy and coordination gaps in dealing with global health emergencies and crises. Despite their understanding that ‘no country can fully protect its citizens in isolation or through traditional border controls’Footnote 2 and commitments to ‘avoid unnecessary interference with international traffic and trade’Footnote 3 to the World Health Organisation (WHO) and to only imposing necessary measures vis-à-vis trade regulations to the World Trade Organisation (WTO), governments lacked a coherent strategy in their responses. The current multilateral legal frameworks relating to GHG, chiefly, the WHO's 2005 International Health Regulations, and to trade affecting global health provision and regulation, chiefly, the WTO Agreements, sadly see rising inequity regarding the access, availability and affordability of personal protection gears, therapeutic drugs and vaccines. The disconnection between the developed and developing nations has led some to conclude that the pandemic has changed the world and its governance forever.Footnote 4 Seeing a GHG policy vacuum, China has taken action to start building a normative framework that emphasises the right to regulate – arguably based on the guiding principles of the United Nations (UN) Draft Convention on the Right to Development (hereinafter, ‘the Draft Convention’) – that permits states ‘to take regulatory or other measures’ to achieve the Draft Convention's objective and purpose,Footnote 5 which is ‘to promote and ensure the full, equal and meaningful enjoyment of the right to development.’Footnote 6 The new framework that China purports to establish promotes more active state regulatory policy interventions, coinciding with the Draft Convention's requirement that states cooperate to promote global health.Footnote 7
In this Article, we seek to assess how China may impact GHG as part of its ongoing effort to (re)shape global governance at the multilateral level and through trade/investment norm-setting at the regional and bilateral levels during COVID-19. By saying ‘multilateral’, we mean an international institutional setting that involves the participation of all state members of a given international organisation, such as the UN. ‘Regional’ denotes a transnational institutional setting that focuses on regional agreements, such as the Regional Comprehensive Economic Partnership (RCEP). ‘Bilateral’ refers to two economies or regions dealing with each other, such as agreements between China and the African Union as well as China and the European Union.
Specifically, the article examines the following four thematic areas: (1) increased engagement with multilateral institutions, specifically the UN and its organs and international initiatives such as Gavi, the vaccine alliance that has helped build China's reputation as a collaborator during COVID-19; (2) China's enhanced bilateral engagement with African countries to provide COVID-19 relief materials and vaccines; (3) the reemerging emphasis on right to regulate in bilateral and plurilateral treaties and the impacts on rules-and-norms-setting under the WTO framework that echoes growing calls for more regulatory autonomy; and (4) challenges to China's proposed new initiatives and its pursuit of a greater role in GHG structure as it seeks to build upon existing infrastructures, institutions, rules and practices. We use available normative documents as supplemented by COVID-19-related scientific reports and employ legal and historical analytical methods to examine the four different aspects, and to provide normative assessments on how China may reshape (and reset) GHG.
The article proceeds as follows. The two parts immediately following this introduction show that when interacting with multilateral institutions, eg, the WHO and other UN agencies and Gavi, and with other developing states like African countries, China continues its past practices of cooperation. Specifically, it first describes China's past and present engagements with WHO, Gavi, and the Human Rights Council (HRC). It posits that despite growing pressure from these institutions, China has reaffirmed its commitments to working with them and has pledged to increase monetary and material donations, including vaccines and medical equipment. In brief, China has performed more proactively in shaping GHG through its participation in these international organisations. Importantly, in describing China's engagement with international organisations, the article points out that China's increasing donations through multilateral institutions cannot compare with China's massive interest in bilateral deals. The article thus proceeds to show from a bilateral perspective, using the China-Africa health cooperation as an example, how China invests in African health infrastructure building. This part offers a historical overview and the on-going China-Africa health cooperation. In particular, it describes how China increased assistance during COVID-19, through support of local vaccine manufacturing plants in African countries and offer of personnel assistance and relief materials through new and existing channels. The first two parts demonstrate that for the past years China actively explores different mechanisms to build a China-related GHG framework.
The article next turns to China's emphasis on the right to regulate concerning health issues. It focuses on how current multilateral treaties (in particular trade and investment agreements) fail to offer grounds for the exercise of right to regulate to respond to the global health crisis satisfactorily, and how China recognises and incorporates the right to regulate in regional and bilateral treaties. On these bases, we argue that China's efforts to accord more regulatory autonomy to governments and potentially enable governments to take swift action during COVID-19. Furthermore, we show that China's domestic practices on strengthening the right to regulate also generate important influence on the global norm-setting concerning health issues. We posit that China's emphasis on the right to regulate domestic affairs works together with its efforts of promoting global coordination, in the sense that the former stresses the responsibility of states to provide health welfare for their citizens and the latter pays heed to the duty of states to cooperate among each other to provide sufficient health care to reduce injustice.
In addition to China's engagement in the institutional setting of multilateral, regional and bilateral framework to promote global cooperation and the right to regulate, China also makes huge efforts to establish new networks to promote the general accessibility of vaccines. The article then deals with this aspect specifically. It focuses on the newly proposed Global Developmental Initiative (GDI) and assesses its potential synergy with China's other initiatives such as the BRI to provide the global public good.
In a nutshell, this Article provides an account of how China engages at different levels of international life to shape the GHG. It concludes by noting the challenges and criticisms towards China's pursuit of a greater role in GHG and calls for a cooperative, multilateral approach in handling health crisis.
China's Engagement with International Organisations
This Part, from an institutional governance perspective, discusses China's participation in GHG by investigating how China engages with existing multilateral institutions, focusing on UN organs such as the WHO and the HRC, and other international initiatives such as Gavi, during COVID-19.Footnote 8 The relationship between China and international institutions (in particular those providing health governance) since the start of the pandemic has often been tense, especially when it came to investigating the origin of the virus. International institutions criticised not only Beijing's uncooperative attitude towards investigations, but also the lack of substantive engagement with Gavi and COVAX (the COVID-19 Vaccines Global Access initiative).Footnote 9 China's preferences toward a bilateral approach in providing vaccines, according to some commentators, attest to China's deployment of vaccine diplomacy.Footnote 10 Despite all the mistrust that complicates the current situation, China appears to have enhanced cooperation with these institutions: in the WHO, China advanced the Health Silk Road (HSR) strategy; in Gavi, China poured efforts into the COVAX facility; and in the HRC, China advocated for the right to health under the framework of right to development. It shows that China pursues a more proactive role in GHG building through these health-related and right to health-related organisations.
China and the WHO
China has a long history of working with the WHO both as a recipient of WHO's technical assistance that helped it undertook healthcare system reform, and as an important donor supporting the WHO's healthcare building in underdeveloped countries.Footnote 11 Over the years, the WHO – a member-governed organisation – has maintained a delicate and balanced relationship with China, praising it for health initiatives but also criticising it for mishaps.Footnote 12
Since the start of COVID-19, the relationship between the WHO and China has continued to be under the spotlight and facing enhanced scrutiny, with political and technical pressure being imposed on both the WHO and China. Nevertheless, China has generally maintained a cooperative attitude towards the WHO. It increased donations to the WHO (US$50 million in March and April 2020Footnote 13 with pledged contributions totaling US$2–3 billionFootnote 14), partnered with the WHO to build the HSR initiative together,Footnote 15 and called for international solidarity and cooperation through the work of the WHO.Footnote 16
The HSR initiative was not just raised during the COVID-19 pandemic but was put on the table in 2016 in conjunction with the BRI (or Silk Road strategy).Footnote 17 In 2017, China signed a Memorandum of Understanding (MoU) with the WHO to enhance collaboration to reduce the impact of health emergencies and build stronger health systems to deliver universal health coverage.Footnote 18 At that time, the WHO proposed a strategic partnership with China to target vulnerable countries along the Silk Road and in Africa.Footnote 19 In his speech in 2017 on building the HSR, WHO Director-General Tedros called for the health leaders of 60 countries and public health partners to build a ‘healthy Silk Road’ together, and promised ‘the WHO will be on your side.’Footnote 20 It was on the same occasion that China issued the Beijing Communiqué for the development of the HSR initiative, and signed MoUs on continuous cooperation in the health sector with Brunei and Mongolia.Footnote 21 During the pandemic, HSR was mentioned again by President Xi during the 73rd World Health Assembly in 2020. In addition, the China Population Welfare Fund – a national public welfare foundation based in Beijing – joined the COVID-19 Solidarity Response FundFootnote 22 in support of the work of the WHO and its partners to help countries respond to the COVID-19 pandemic.Footnote 23
China and Gavi
In 1999, Gavi was established by the Gates Foundation with a goal to accelerate developing countries’ access to vaccines and to support research into ‘effective, affordable and sustainable’ health solutions for these countries.Footnote 24 Gavi works closely with the WHO, UNICEF, and the World Bank as well as sovereign donors and private sectors to strengthen primary health care and broaden vaccine coverage.Footnote 25 Consequently, UNICEF, the WHO, the World Bank, and the Gates Foundation hold permanent seats on the Gavi Board. Other Gavi partners (government donor countries, developing countries, research and technical institutes, vaccine industries, NGOs, and independent individuals) may serve on its Board on a time-limited basis.Footnote 26 Gavi's public-private partnering structure means it relies heavily on donations from sovereign governments and private sectors.Footnote 27 Major donors include the US (US$3,390 million), the UK (US$2,884.5 million), Germany (US$1,689.3 million), as well as the Gates Foundation (US$1,757.2 million).Footnote 28
China only became a donor to Gavi in 2015 at the Berlin Pledging Conference. Between 2016 and 2020, China contributed US$5 million.Footnote 29 It was during COVID-19 that China started to participate more vigorously in the activities of Gavi, committing more donations at the Global Vaccine Summit to support Gavi's work for the 2021–2025 strategic period.Footnote 30 In total, China has pledged US$20 million to Gavi (not including COVAX), a four-fold increase compared to 2016–2020.Footnote 31 Compared to donations from Gavi's traditional major donors (mostly the developed economies), China's contribution to Gavi is still small, thus China can only be seen as a marginal player for now.Footnote 32
During the COVID-19 pandemic, Gavi, the WHO and the Coalition for Epidemic Preparedness Innovations established an initiative, COVAX – the COVID-19 Vaccines Global Access Facility – to accelerate the development and manufacture of COVID-19 vaccines and to guarantee fair and equitable access for every country by pooling resources.Footnote 33 COVAX's Advance Market Commitment (AMC) mechanism asks higher-income countries to place orders and pay for their doses. These upfront payments then allow manufacturers to continue developing and manufacturing vaccines even before the vaccines were fully approved. Doses for lower-income countries are paid for via a separate financial mechanism – supported by OECD's Official Development Assistance as well as contributions from other actors.Footnote 34 For instance, Japan and the US have pledged US$1 billion and US$2 billion respectively to the AMC mechanism as of June 2021.Footnote 35 On 6 August 2021, at the International Forum on COVID-19 Vaccine Cooperation (hosted by China), China pledged US$100 million to AMC for equitable access to COVID-19 vaccines for lower-income countries. This pledge has been China's largest voluntary contribution to an international organisation to date.Footnote 36
In addition to governmental donations, and potentially more importantly, two vaccines produced by Chinese pharmaceutical companies – Sinovac and Sinopharm – were included in COVAX. COVAX signed agreements with these two companies to buy more than half a billion doses of their COVID-19 vaccines by the first half of 2022.Footnote 37 And before this, Gavi held talks with China's state-owned Sinopharm (and other vaccine manufacturers) to expand the COVAX pipeline and to secure doses for distribution.Footnote 38
Yet China's participation in Gavi remains rather limited. On the one hand, China's donation to Gavi falls behind other major donors (such as the US and the UK), and it has not served as a Gavi board member. Frequently China provides vaccines direct to recipient countriesFootnote 39 And this bilateral approach, outside of the multi-stakeholder framework of COVAX, may have a strategic purpose. It resonates with China's narratives that COVAX was slow in distributing the vaccines and that China moved quickly to support public good and to tackle the international emergency.Footnote 40 On the other hand, direct donation to COVAX is one component of China's multi-faceted approach in boosting its role in GHG. The small donation to Gavi suggests that China prefers a stand-alone approach under the BRI over GAVI and that China has very little power in this establishment which was started by the Gates Foundation and the major western donors.
China and the Human Rights Council
The UN lists the ‘right to health’ as a fundamental human right which is necessary for the exercise of other human rights.Footnote 41 The normative content of the right to development, as prescribed in the UN Declaration on the Right to Development, requires states to ensure ‘equality of opportunity for all in their access to basic resources,’ inter alia access to ‘health services.’Footnote 42 COVID-19 has once again focused the attention of the international community on the right to development, particularly regarding the obligation of states to provide access to health services, given the alarming gap and inequality in health and social protection systems between rich and poor countries. The right to development, stressed the UN High Commissioner for Human Rights Michelle Bachelet, is not only an ‘inalienable right’ of persons, but also a collective right for people that shall be respected by other States.Footnote 43 By so interpreting, the legal and political significance of the right to development is elevated and it becomes a potent legal tool underpinning a more welfare-based approach towards health as well as global vaccine distribution. Moreover, the elevated status of the right to development also introduces the possibility of using this right to outweigh the patent system requirements created by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), thus imposing further obligations on States (particularly the vaccine-producing states) to fulfill the right to development and access to health by making vaccines more widely accessible.Footnote 44
It is also against the backdrop of COVID-19 that China has advocated more vigorously for the right to development and right to health,Footnote 45 actively participating in workshops organised by the HRC to discuss the significance and paths of the right to development, promoting vaccine accessibility, and, as a result, winning support from many countries.Footnote 46 This is a continuation of China's practice that focuses on the economic and social welfare aspects of the right to development vis-a-vis the civil and political aspects. For instance, Ambassador Chen Xu, the Permanent Mission of China to the UN (Geneva) made several statements at the HRC, stressing that ‘the COVID-19 pandemic has severely impacted the economic and social development and people's livelihood of all countries, developing countries in particular, exacerbated inequality and brought new challenges to the realization of the right to development.’Footnote 47 Explaining the reason for the China-initiated resolution on ’the Contribution of Development to the Enjoyment of All Human Rights’ at the HRC, Ambassador Chen highlighted China's commitments to ‘promoting international cooperation, common development and the universal enjoyment of human rights,’ before calling for ‘protect[ing] the right to life and right to health, and in particular, do[ing] away from [sic] “vaccine nationalism” to ensure timely and equitable access to vaccines for developing countries.’Footnote 48
A Synopsis of China's Engagement with International Organisations
This part shows how China engages with several health-related and health-right-related organisations to pursue global cooperation in combatting COVID-19. During this process, China not only makes more financial and technological contribution to the global health structures, it also becomes deeply involved in the shaping of GHG in the health-right-related issues. This allows China to assume more discourse power in norm-setting. Moreover, China in the GHG building manifests a strong spirit of global cooperation. However, China's interest in international organisation cannot compare with its investment in bilateral cooperation. This is manifested in the limited donation from China to Gavi vis-à-vis its direct donation to African countries. But overall, China demonstrates continuous efforts in facilitating global cooperation in global health management.
China's Interactions with African Countries – A Pattern of Continuity
Beyond engaging with multilateral institutions, China has also interacted with developing countries more proactively on a bilateral basis during the pandemic in the spirit of solidarity. This Part thus turns to focus on bilateral interactions between China and African countries. The analysis is situated in the long history of the China-Africa relationship. It questions the quality and benefits of China's medical assistance to Africa since the 1960s. It first describes the Sino-Africa relations, then details the GHG offered by China to African countries, and lastly, compares and contrasts that with GHG assistance (or the lack thereof) by other developed economies. It shows that the Chinese government accelerated and consolidated its economic cooperation with African states by leaning in favour of vaccine equity and accessibility across the continent. It posits that China's COVID-19 interventions in Africa have so far been an important watershed that has the potential to cement and further stimulate Sino-Africa health and economic cooperation. This part of the Article interrogates the standard and efficacy of Chinese COVID-19 vaccines in Africa in light of the opaque clinical results of the drugs.
A Long History of Strong Economic and Political Alliances
China has an enduring relationship with African countries. Beginning in 1955 at the Bandung Conference,Footnote 49 Afro-Asian States have built ideological solidarity against Western imperialist international economic order and advocated for a global system that is responsive to the needs and aspirations of Third WorldFootnote 50 people.Footnote 51 Although it has been contended that the Bandung Conference is being recreated by some postcolonial scholars as the mythical foundation of anti-imperialist policy,Footnote 52 the enduring Sino-African relationship that began in Bandung extends to public health cooperation. Starting from the twilight of colonialism in Africa, China has played pivotal roles in the continent by providing medical expertise and treating diseases such as malaria, Ebola, HIV/AIDS, Lassa fever, and cholera, to mention but a few.Footnote 53 If the COVID-19 outbreak in late 2019 came at an inauspicious time in China's international economic and diplomatic relations with the West, it did coincide with a period when Sino-African economic investment cooperation had begun to flourish. China is Africa's biggest investor in critical national infrastructure projects as it has increasingly constructed friendship hospitals,Footnote 54 malaria prevention and control centres, railways, highways, seaports,Footnote 55 airports, electricity-generating plants, among others.Footnote 56 Because of the long historical relationship between China and Africa and the health infrastructure it has financed, China is able to tap into the existing infrastructure to provide new GHG in the continent during COVID-19, including, for example, the ongoing construction of the Africa Centre for Disease Control (CDC) headquarters in Ethiopia.Footnote 57
Despite the many years of Sino-Africa economic relations and the provision of medical aid and infrastructure to Africa, the conditions of health facilities in many African countries are still abysmal. At the time of writing, many African states lack basic medical facilities to confront a pandemic and an epidemic such as COVID-19 and Ebola. In Nigeria, for example, there is a high mortality rate in public hospitals because of poor healthcare infrastructure. The Nigerian ruling class is known for travelling to India and industrialised countries in the West to receive medical care.Footnote 58 That the long history of Chinese medical aid to Africa is yet to address some of the challenges of healthcare infrastructure in the continent has at least one telling implication. It puts Beijing's principle of win-win foreign policy concept and its ideology that international economic and investment relations should not take a dominance-dependence structure on trial. It casts doubt on the utility and quality of some Chinese-built health infrastructure in some African countries. From the standpoint of GHG, the Sino-Africa engagements and Beijing's claimed solidarity with the continent have not yet provided tangible benefits to Africa.
Bilateral interactions during COVID-19
The first official case of COVID-19 in Africa was detected in Egypt on 14 February 2020.Footnote 59 As of the time of writing, data from the CDC of the African Union (Africa CDC)Footnote 60 shows that there has been a total of 11,287,599 coronavirus cases, 250,422 deaths, and 10,555,195 recoveries in the African continent.Footnote 61 However, the vaccination rates in African countries remain the lowest in the world. Africa CDC reports that as of 16 March 2022, only 14.99% of Africa's population have been immunised completely against the novel virus.Footnote 62 The need for vaccines, treatment, and materials is further exacerbated by the more transmissible variants and severe economic suffering.Footnote 63 Although many African countries have received COVID-19 vaccines from COVAX and the African Vaccination Acquisition Task Team initiatives, the availability of vaccines provided via multilateral efforts, as has been demonstrated in Part 1, is limited and the need for vaccines remains strong.
To address the lack of equitable access to COVID-19 vaccines, China struck bilateral deals with African states for the donation and sale of Sinopharm and SinoVac-Corona vaccines.Footnote 64 China appears to be on track to fulfill the pledge it made to African governments at the June 2020 Extraordinary China-Africa Summit on Solidarity against COVID-19 to increase vaccine distribution in the continent as a priority.Footnote 65 Since 9 January 2021, Sinopharm and Sinovac vaccines have been donated to and administered in 45 States in the continent under an MoU between China and the African States.Footnote 66 According to a Beijing-based consultancy firm Bridge, as of 8 November 2021 China has delivered 15 million doses of vaccine to African countries through donations.Footnote 67 Consequently, China is considered the foremost country making its vaccines available to African countries and the major vaccine supplier to Africa.Footnote 68
Concerns regarding the quality, efficacy and safety of Chinese COVID-19 vaccines emerge. The Sinopharm and Sinovac vaccines suffer from transparency and scientific issues because their manufacturers were reluctant to share experimental results of the vaccines with the WHO and the public at large. Although the state-owned vaccine producers claimed that their jabs are 79.3 per cent effective, a laboratory trial carried out in Brazil reported a low efficacy rate of 50.4 per cent.Footnote 69 The Chinese drugmakers’ opaque approach to the results of the clinical trials of Sinopharm and Sinovac and unreliable data could adversely affect the acceptance rate of the vaccines in Africa in comparison with vaccines produced by Western companies such as Pfizer, Moderna, and Johnson & Johnson.
In addition to vaccine donation, China has entered into agreements with African countries to manufacture vaccines locally in Africa and to invest in the vaccine supply chain infrastructure. China and Egypt reached a bilateral agreement in December 2020 to produce COVID-19 vaccines in the North African country following legislative and regulatory approval granted by the Egyptian government.Footnote 70 The vaccine production plant, jointly operated by Chinese and Egyptian firms, currently has a production capacity of one million doses. Similarly, China has signed a deal with Morocco to use the existing facilities of a Moroccan pharmaceutical company to produce Sinopharm vaccines. African countries, with the assistance of Chinese state and non-state actors, have invested in vaccine supply chain infrastructure such as pharmaceutical storage facilities to ease vaccine rollout challenges across the continent.Footnote 71 However, this article recognises that transportation of vaccines and immunisation of the rural population remains challenging for many reasons including because many towns and villages in Africa are flashpoints of ethno-religious conflict and violence. Beyond internecine conflict, vaccine hesitancy is a phenomenon often observed across the continent during every public immuniation programme thus slowing down the pace of vaccine rollout in Africa.
Moreover, China and African countries have also worked together to provide medical equipment and personnel assistance to address critical shortages during the pandemic. China deployed COVID-19 medical teamsFootnote 72 and donated relief materials (face masks, disposable protective clothing, testing kits, forehead thermometers, medical gloves, shoe covers, goggles, ventilators, and oxygen generators)Footnote 73 to African states including Ghana, Nigeria,Footnote 74 Namibia, Kenya, Zambia, Rwanda, Sierra-Leone, and Togo, among others.Footnote 75
China's multi-pronged COVID-19 assistance to Africa is remarkable considering the governance deficit in global public health. The Chinese government has been consolidating its economic and health cooperation with African states by supporting vaccine equity and accessibility. The distribution of vaccines to various African countries was carried out while Beijing was confronting the virus in its own country – the most populous nation in the world.Footnote 76 In expressing his deep gratitude to China for its intervention with COVID-19 vaccines, the Zimbabwean president remarked that
Our dear friends of China, these vaccines are certainly providing a new light of positivity to the people of Zimbabwe in these tough times — a light at the end of a dark tunnel. We are most grateful for this life-saving gesture. From our people to yours — thank you to my dear brother President Xi Jinping — and thank you to all the people of China.Footnote 77
There is a need for a reconfiguration of GHG structures based on an inclusive humane globalism.Footnote 78 Although both China and the US have donated vaccines to Africa, the different approaches adopted by China and the US in the fight against COVID-19 with respect to the pace of getting vaccines to Africa may lead to changing international economic interest alignments and become a key defining factor in the granting of natural resource exploration and production rights by African governments in the future. It also may cause Third World states to pursue a different kind of world order that reflects multiple centres of authority and capacity in global governance.Footnote 79 In this connection, China has begun to take a leadership position by becoming a dependable source of GHG in Africa through the provision of vaccines, relief materials, and other assistance. Yet China's new GHG in Africa is inextricably interwoven with its broader international economic cooperation with the continent and engagements usually overlap and converge. Beijing's GHG and assistance to the African states flow through multiple mechanisms and platforms. Beijing deploys various strategies and multiple actors in the provision of COVID-19 aid to Africa. In addition to the Chinese government, state-owned enterprisesFootnote 80 operating in the continent as well as Chinese philanthropistsFootnote 81 have donated pandemic relief materials to African states and the African Union.Footnote 82 China's COVID-19 interventions in Africa enhance health measures established through multilateral mechanisms such as the June 2020 Extraordinary China-Africa Summit on Solidarity Against COVID-19 and various public healthcare initiatives under the Forum on China-Africa Cooperation (FOCAC), as well as the HSR.Footnote 83
Although there have been isolated pockets of Sinophobia in some African countriesFootnote 84 and scores of xenophobic attacks against the African community in China that have triggered diplomatic rows between Beijing and African governments,Footnote 85 by and large, Chinese COVID-19 interventions in the continent are being received with gratitude and fanfare.Footnote 86 This might be a result of limited options for COVID-19 vaccines by African governments. Moreover, the ongoing Chinese GHG in Africa may lead to increased international economic interest alignments between China and African countries, presenting the continent with the opportunity to develop a sustainable healthcare infrastructure that is resilient to future public health challenges. As this part of the article has noted, the Sino-Africa health and economic relations have not yielded substantial and sustainable gains for Africa. Thus, the COVID-19 pandemic provides Africa with the opportunity to leverage Chinese funding as well as scientific and medical expertise for its own sustainable development.
China's Treaty Experiences Regarding the Right to Regulate and Health
Keeping in mind China's interactions with multilateral institutions and African countries, this Part reviews terms of existing treaties China has joined, focusing on right to regulate in health space in trade and investments treaties. The ‘right to regulate’, one of the enumerated general principles of the UN Draft Convention in the realisation of the right to development, reassures governments of their ability to take regulatory measures in the public interests, such as the protection of public health, safety, and environment, without fearing incurring states liabilities.Footnote 87 While seemingly focusing on states’ ‘national’ right, the UN Draft Convention obliges states to cooperate to ‘[s]olve international problems of an economic, social, cultural, environmental or humanitarian character’, among other duties.Footnote 88 This Part assesses existing treaties’ application to and impacts on China's actions regarding the provision of adequate access to health services and cooperation to solve global health problems. It analyses relevant WTO agreements and efforts to update them, discusses regional treaties such as the RCEP, examines bilateral free trade agreements (FTAs) and bilateral investment treaties (BITs), and assesses China's contributions to international norms setting more generally through the BRI. This Part adopts a textual approach,Footnote 89 whilst also paying attention to comparative analysis and normative aspects. As this Part reveals, the right to regulate provision is more often seen in regional and bilateral treaties that China has negotiated and signed, and less frequently in multilateral and regional treaties where China has played little role in their formulation.
Multilateral and regional treaties
The web of international trade and investment treaties can influence states’ policy choices and regulatory measures, thus affecting states’ responses to health emergencies.Footnote 90 As a member of the WTO, China is not only subject to the same rights, privileges, and obligations as other members under the constituent agreements, but also to specific commitments it made in its accession documents. Our research shows that, despite the general lack of specific provisions providing governments with the right to regulate (with a few exceptions discussed below), China has supported the provision's inclusion at the WTO, the multiple fora.
The Marrakesh Agreement Establishing the World Trade Organisation (the WTO Agreement) – the legal instrument establishing the WTO and governing every member – does not explicitly recognise the right to regulate nor does it mention health in its text, although one of its stated objectives is to ‘rais[e] standards of living’ of all parties.Footnote 91 While the General Agreement on Trade in Services (GATS) preamble recognises governments’ right to ‘regulate … the supply of services … to meet national objectives,’ right to regulate does not appear in the General Agreement on Tariffs and Trade 1994 (GATT1994), the counterpart regulating goods trade. Nevertheless, both GATT1994's Article XX and GATS's Article XIV allow governments to adopt and implement measures to protect human health as long as it is not done in an arbitrary or discriminatory manner, nor more trade restrictive than necessary. GATT1994's Article XXI and GATS's Article XIVbis further permit measures to protect essential security, but it is unclear whether they apply to public health emergencies as current jurisprudence only touches upon ‘a situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state.’Footnote 92 Moreover, under those provisions, governments must defend themselves ex post, rather than acting with affirmation ex ante.Footnote 93 Consequently, governments face uncertainties when trying to rely on those provisions. Although GATT1994 also permits governments to impose ‘[e]xport prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of … other products essential to the exporting contracting party,’Footnote 94 the burden of proof still falls upon states imposing such restrictions.Footnote 95 Furthermore, the collective of Article 31 of TRIPS, the 2001 Doha Ministerial Declaration on TRIPS and Public Health (the Doha Declaration), and the 2003 and 2005 decisions concerning the Doha Declaration, though permitting states to impose compulsory license requirements on intellectual property right (IPR) holders under prescribed circumstances, appears to be of limited utility during COVID-19.Footnote 96 So far, only Brazil has passed a bill that specifically authorises compulsory licenses for COVID-19 vaccine patents.Footnote 97 Thus, the current WTO agreements do not appear to be addressing current problems satisfactorily.
China joined other WTO members in initiating efforts to reform WTO rules. Regarding GHG under WTO, China supported an IPR waiver for COVID-19 vaccines under the TRIPS Agreement.Footnote 98 China's position is in the middle ground between India and South Africa's full IPR waiver proposal that not only covers vaccines patents, but also diagnostics, equipment, and treatment, etc,Footnote 99 on the one hand, and the EU and Japan's strong opposition,Footnote 100 on the other (and the USFootnote 101 before its sudden change of heart in May 2021).Footnote 102 Compromise on the vaccine waiver was achieved in June 2022 at the 12th Ministerial Conference, with China making binding commitments not to availing itself to the vaccine waivers.Footnote 103
At the regional level, FTAs China recently concluded see the inclusion of the right to regulate provision.Footnote 104 The RCEP – signed and became effective in the midst of the health emergency – first explicitly ‘reaffirm[s] the right of each Party to regulate in pursuit of legitimate public welfare objectives’Footnote 105 in the Preamble. The parties further agree that governments may adopt ‘measures necessary to protect public health,’Footnote 106 linking to the right to regulate in the health area. An explicit reiteration of the right to regulate in public health comes when the RCEP states that:
(a) the Parties affirm the right to fully use the flexibilities as duly recognised in the Doha Declaration on the TRIPS Agreement and Public Health;
(b) the Parties agree that this Chapter does not and should not prevent a Party from taking measures to protect public health; and
(c) the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all.Footnote 107
The inclusion of the right to regulate in the health area and recognition of regulatory autonomy for governments by both developed (Japan, Australia, and New Zealand) and developing economies is noteworthy, suggesting the potential for adopting similar provisions in other overarching treaties encompassing both developing and developed economies. Moreover, within the RCEP, China committed to opening market access and providing national treatment in hospital services and professional medical services, which could facilitate improved health care. However, it should be noted that because RCEP fully incorporates GATS's Article XIV, RCEP Parties are subject to the same limitations of that article as discussed earlier.
This recent development differs from that of an older regional agreement, the Asia-Pacific Trade Agreement (APTA; formerly known as the Bangkok Agreement), acceded by China in 2001.Footnote 108 APTA mainly concerns tariffs reduction and thus lacks specific mention of the right to regulate. The term ‘health’ only appears once in the exceptions provision (Article 35), in a way similar to GATT1994's Article XX. During COVID-19, the APTA secretariat expressed needs for further revisions such as the removal of non-tariff barriers to better cope with future health emergencies,Footnote 109 which presumably could include provision for the right to regulate.
In summary, the newer generation of regional treaties that China is negotiating reflects a general recognition of the right to regulate, especially in the health area, and aligns with China's negotiations in the WTO multilateral forum and other fora, as discussed above and below. However, it should be noted that China's treaty practice on right to regulate coincides with the raising awareness and recognition of right to regulate in trade and investment treaties, including treaties spearheaded by developed economies like the EU and the US, such as the Multilateral Agreement on InvestmentFootnote 110 and the new US model BITs.Footnote 111
Bilateral Agreements
China currently has signed 19 bilateral FTAs with other states, including updates of previously signed FTAs, but excluding regional FTAs and economic arrangement pacts signed between the mainland, Hong Kong, and Macau,Footnote 112 and aspirational MoUs.Footnote 113 Between 2020 and August 2021, two new bilateral FTAs were signedFootnote 114 and one other FTA became effective.Footnote 115 These FTAs cover goods trade, services trade, and investments. Whilst overall bilateral FTAs share many common characteristics with WTO instruments, they still possess unique characteristics dependent on specific treaty parties, as shown below.
Our research reveals that six of China's bilateral FTAs contain explicit language recognising the importance of the right to regulate in the preamble.Footnote 116 For example, the Preamble of the recently effective China-Mauritius FTA (the first FTA between China and an African country) states that both China and Mauritius ‘[u]phold[] the rights of their governments to regulate in order to meet national policy objectives, and to preserve their flexibility to safeguard the public welfare.’Footnote 117 The examination further shows that FTAs signed after 2015 all contain the ’right to regulate’ expression. Moreover, while other FTAs do not explicitly refer to right to regulate, some in essence offer governments powerful tools by affirming governments’ ability to deviate from treaty obligations to adopt or implement measures ‘[w]here urgent problems of … health… arise or threaten to arise for a Party.’Footnote 118 For instance, the China-Singapore FTA (including the recent update) authorises both governments to suspend the ‘operation of any Annex, in whole or in part, immediately’Footnote 119 when health problems arise. This ability to suspend the operation of a treaty for the protection of health essentially affirms governments’ authority to take action and therefore, can be a powerful tool in managing health crises. Other FTAs contain language that preserves flexibility to allow governments to take action for the purpose of protecting public welfare, though not explicitly referring to the right to regulate. For example, the China-Switzerland FTA states that they ‘[r]ecogniz[e] that this Agreement should be implemented with a view to promoting the public welfare in the Parties’ in the preamble. Similar statements can also be found in China-South Korea FTA and the trade in goods agreements in the China-Pakistan FTA and China-ASEAN FTA, among others.
This survey also shows that provisions relating to public health exist in nearly all China's FTAs, with explicit reference to health, the Doha Declaration, and the Protocol Amending the TRIPS Agreement, December 2005. Such explicit reference to health is exhibited in two ways: in the general exceptions provision and in the IP chapters. Eleven FTAs incorporate the general exceptions provisions provided in GATT1994's Article XX and/or in GATS's Article XIV. One FTA, explicitly referring to neither, nevertheless allows actions to be taken for the protection of human health.Footnote 120 Seven FTAs expressly recognise the Doha Declaration as the necessary limitation on the appropriate protection of IPR in the IP chapters,Footnote 121 with six further acknowledging the Amendment to the Doha Declaration.Footnote 122 Furthermore, almost all FTAs contain essential security exception provisions, under which governments can take actions in times of emergency, arguably including a health emergency, with one notable exception being the China-Pakistan FTA Goods Agreement.
Briefly, China has increasingly recognised the right to regulate and emphasised states’ regulatory autonomy over public health measures in international investment laws by recognising it in the preamble and exempting those measures from the investor-state dispute settlement (ISDS) mechanism. For instance, the Comprehensive Economic Agreement between the EU and China explicitly states that member states ‘recognise the right of the Parties to adopt and enforce measures to achieve legitimate public policy objectives’ in the preamble.Footnote 123 Moreover, the investment chapter in China-Chile FTA carves out generally applicable, non-discriminatory measures designed and applied to protect public health from the ISDS ‘indirect expropriation’ claim.Footnote 124 Comparatively speaking, worldwide, ‘more than 92 per cent of [international investment] treaties concluded since 2018 (for which texts could be analyzed) contain at least one explicit reference to health in the operative part of the treaty.’Footnote 125 Thus, China's treaty practices largely align with international practices, to which it plays an increasingly important role in shaping.Footnote 126
Lastly, although some of China's FTAs lack the right to regulate provision, regulatory flexibility can still be found in provisions relating to medical goods and health professionals. For example, the ‘temporary admission of goods’ provision obliges China and its FTA partner(s) to grant duty-free temporary admission for professional equipment, including for medical activities.Footnote 127 The ‘grant of temporary entry’ of professionals relating to public health and safetyFootnote 128 similarly allows governments to take swift actions where such needs or urgencies arise.
This section shows that China has consistently included the right to regulate provision – for the protection of public health – or its equivalent where right to regulate is not explicitly stated in its bilateral FTAs, aligning with international trends it helps shape.
Norms Setting
China's practices on the right to regulate and the protection of public health through policies, unilateral conduct, and joint declarations can also inform the development of formal treatiesFootnote 129 thus projecting China's desire to (re)shape the discussion of international cooperation and influencing the framework of GHG.
The norms may flow from BRI practices, namely, the HSR.Footnote 130 The HSR traces its domestic roots to the 2015 National Health Commission document – ‘A Three Year Implementation Plan for Advancing BRI Health Cooperation (2015–2017)’ – to enhance international health cooperation and prevent the spread of communicable diseases under BRI's ‘people-to-people exchanges’ pillar.Footnote 131 After Xi's 2016 speech on the HSR, the Belt and Road High Level Meeting on Health CooperationFootnote 132 – organised by the International Health Exchange and Cooperation Center NHC PRC in 2017Footnote 133 – issued the Beijing Communique of the Belt and Road Health Cooperation (the Beijing Communique).Footnote 134 The Beijing Communique ‘calls for great attention from governments’ to ‘emerging and reemerging infectious disease outbreaks’ under the articulated principles of cooperation. It sets forth nine cooperation measures, ranging from the establishment of The Belt and Road Health Policy Research Network and the Belt and Road Hospital Alliance to the facilitation of personnel exchange and the dispatch of Chinese foreign aid medical teams to BRI nations, and to the strengthening of cooperation and coordination in international organisations such as the WHO, UNAIDS, the Global Fund and Gavi.
China appears to be following through on the deliverables in the Beijing Communique. As the part describing China's engagement with international organisations details, during COVID-19, China has enhanced cooperation with the WHO, Gavi, and COVAX by increasing donations of funds and vaccines, although its bilateral provisions outweigh those made to multilateral institutions. China has also hosted an online training session on COVID-19 treatment with officials and health professionals from Mongolia, Kenya, and the Philippines in attendance.Footnote 135 As the part on China's interactions with African countries further noted, China increased bilateral provisions of materials and vaccines, professional aid and medical teams, shared knowledge on combating COVID-19, and supported, for example, local vaccine manufacturing plants in African countries.Footnote 136
Beyond the BRI HSR platform, China's participation in international fora such as the Group of Twenty (G20) and the Asia Pacific Economic Cooperation (APEC) further reflects its approach to global health governance. At both fora, China joined calls for smooth and accessible distribution of essential goods and vaccines and the support for the WTO.Footnote 137
As this Part illustrates, the right to regulate provision in health space can largely be divided along the lines of limited inclusion in multilateral instruments such as the WTO Agreement, GATT1994, and GATS on the one hand, and explicit recognition or affirmation in TRIPS and China's regional and bilateral FTAs, on the other. Informal processes such as the BRI, especially the HSR, and other practices both domestically and internationally, may also contribute to formalising the right to regulate in health space in treaties.
It is worth emphasising that a state's exercise of ‘right to regulate’ over health and other domestic issues should focus on the realisation of adequate protection based on scientific evidence and balance the development level, government resources and capabilities, and social conditions, etc. As the ultimate goal of ‘right to regulate’ is to facilitate the enjoyment of ‘right to development’, due considerations of negative spillovers and cooperation over international issues are necessarily implied in the decision-making process. In this regard, a coordinated international response can stem from and may even facilitate individual exercise of domestic ‘right to regulate’. Such coordination requires strong political will and determination from all parties concerned.
China's Practices to Build New Initiative
Our legal and historical analysis reflects China's tendency to build new initiatives on existing infrastructures, including institutions (multilateral and bilateral), rules, and practices and initiatives in areas including health, when promoting ‘a new platform for better global governance.’Footnote 138 This tendency may stem from the wide-ranging consequences associated with COVID-19: its international nature requires global cooperationFootnote 139 to meet the world-wide requirement for vaccines and other materials which cannot be met by any single state.Footnote 140
Multilaterally, China recently proposed a new Global Developmental Initiative (GDI) that builds on existing UN infrastructure and emphasises balanced, coordinated, and inclusive growth and development.Footnote 141 The all-encompassing GDI prioritises development – echoing the right to development movement within the UN and stressing the centrality of humanity, emphasising assistance to developing countries, and addressing climate change.Footnote 142 Ultimately, the GDI calls for strengthened cooperation on COVID-19 and vaccinesFootnote 143 and seeks to build ‘a global community of development with a shared future.’Footnote 144 Implementing the GDI to help combat COVID-19, China proposed the Global Vaccine Cooperation Action Initiative (GVCAI), a six-prong approach (largely) reflecting approaches China has been taking or calling for at multiple fora, including technology sharing, vaccine waivers, equitable distribution of vaccines, and financial support for developing countries, etc.Footnote 145
Features in the GDI and GVCAI are also present in bilateral cooperation agreements between China and African countries, helping to form and build on synergies with Africa's own initiatives and agenda such as Agenda 2063.Footnote 146 However, given the heterogeneity of Africa, the developmental impact of Chinese health and economic cooperation will almost certainly vary country by country. The deciding factor in each case is likely not to be China, but individual African countries and their governments as they seek to leverage Chinese support to accelerate their own national responses to COVID-19.Footnote 147
The phrases ‘shared community’ and ‘shared future’ in the GDI and GVCAI are also key words in the BRI, thus synergy can be expected between GDI, GVCAI, and BRI.Footnote 148 An Initiative for Belt and Road Partnership on COVID-19 Vaccines Cooperation was launched in June 2021, which calls for more solidarity and cooperation in vaccine regulation, production, and research and development, among other issues.Footnote 149 Chinese entities have also utilised special economic zones (SEZ) to provide health-related manufacturing and services to BRI countries under the HSR.Footnote 150
The above-discussed new initiatives link to existing multilateral institutions. For instance, many GDI priorities, including health, align with the UN SDGs. The GVCAI calls for support to the WTO and stresses the importance of meeting the targets set by the WHO. The BRI COVID-19 Vaccines Cooperation Initiative explicitly calls upon states to support COVAX of the WHO. Viewed holistically, China's multilayered approach to promoting GHG can be seen as a refinement and continuation of its past methods and experiences rather than any dramatic and unforeseen change in approach.
Conclusion
China's active pursuit of GHG has faced intense scrutiny. Its relationship with the WHO during the pandemic was sometimes tense, especially regarding the investigation of the origins of COVID-19 and the release of the virus origins report. Whilst China is the second largest vaccine provider to the world by far,Footnote 151 it was criticised for not engaging sufficiently with Gavi and COVAX by providing vaccines bilaterally, thus bypassing these institutions and mechanisms.Footnote 152 Some further criticised that the number of donated vaccines was insufficient in proportion to its sales.Footnote 153 China also faced questions on the efficacy of the vaccines it produced and exported.Footnote 154 Moreover, with the US's determination to show ‘America is back’ by engaging in a vaccine pledge duel,Footnote 155 and the EU's continued provision of vaccines, China probably needs to do more, for example by increasing donations of vaccines via COVAX, to continue its pursuit of leadership in GHG. The mutation of the virus and the spread of more infectious variants of the virus call for prudent and nimble exercise of the ‘right to regulate’ based on scientific evidence and balancing the measures societal and economic impacts, domestically and abroad.
The article, through a legal and historical analysis, has assessed potential changes in GHG that China may bring about. It has shown that, institutionally, China continues its collaborative interaction with multilateral institutions such as the WHO, Gavi, other UN agencies, and the WTO despite the challenges and pressure from them respectively. It also noted that China has enhanced its bilateral engagement and cooperation with some trading partners and developing countries, for example, African countries and Asian countries along the BRI. It demonstrated that China's enhanced interactions coincide with the desire of other governments to better guard their regulatory autonomy. The article thus contends that from a legal and normative perspective, this coincidence can facilitate the formation of formal international trade and investment instruments that emphasise governments’ right to regulate, especially in the health area. Moreover, such interaction helps diffuse the norms – not legally binding but generally regarded as persuasive – that associate with China's practices.
The article further notes challenges ahead for China in pursuing its ongoing efforts, including through the BRI and HSR, the GDI, and the GVCAI to shape international governance structure and posits that further adjustments by China and other international actors may be needed.
