Article By: Raj Roongta, SVKM’s Pravin Gandhi College of Law

After nearly a year since the beginning of the COVID-19 pandemic, the world finally saw an influx of vaccines. Pfizer, Moderna and AstraZeneca remain the top contenders in mass immunization with many companies in the final phases of the human trials. Highly promising vaccines completing phase 3 trials and likely to be launched soon are from Johnson and Johnson, and Novavax. Globally, over 188 million vaccine doses have been administered yet, with the United States leading the chart with 56 million doses administered.

In India, Cyrus Poonawaala’s Pune based Serum Institute has proven to be a saviour for the Indian people. Serum Institute is the world’s largest vaccine manufacturer, manufacturing around 1.5 billion doses of vaccine each year. Serum Institute partnered with AstraZeneca to locally manufacture vaccines under the brand “CoviShield”. CoviShield along with Bharat Biotech’s indigenous vaccine Covaxin has been part of the world’s largest inoculation drive, vaccinating the medical workers in India.

AstraZeneca’s vaccine has been proven efficient in developing countries such as India, due to the low logistical requirements and the low cost of the vaccine, whereas Pfizer and Moderna vaccines are being used in developed countries due to a higher cost per dose and lower temperature requirement. Pfizer and Moderna also have prior commitments to wealthier nations for millions of doses. The early agreements have made the vaccination companies reluctant to accept orders from poorer countries for additional doses, owing to the companies’ limited manufacturing capabilities. Some of the rich countries have been accused of hoarding vaccines. [i]

India’s vaccine diplomacy: A way to spread India’s influence

In a struggle to re-establish a dominant position and to counter the growing influence of the People’s Republic of China, India is sending out free shipments of vaccines in the South East Asian region. The shipments consist of only CoviShield doses, partly because Bharat Biotech’s vaccine lacks clinical data at this point in time and countries are reluctant to accept it. India has been on a defensive stance in the South East Asian region for some time. By extending financial support through the Belt and Road Initiative, China has gained substantial ground in the continent. China has successfully been able to set off debt traps, which may compromise the sovereignty of some countries. Bangladesh, which once sided with India, may soon lean towards China.

The vaccine aid has been seen as a power move by India. Therefore, to strengthen its ties to countries in the South-East Asian region, “The government of India has shown goodwill by providing the vaccine in grant. This is at the people’s level, it is the public who are suffering the most from COVID-19,” said Nepal’s Minister for Health and Population Hridayesh Tripathi. India has been struggling to maintain its ties with Nepal. China’s increasing influence in Nepal and Nepal disputing territorial boundaries are the reason for the tussle.

India is currently planning to supply free or highly subsidised vaccines to 49 countries, not only in Asia but also in Latin America, the Caribbean and Africa. So far, India has distributed about 23 million doses under its “Vaccine Friendship” program. ” There’s competition with China but Sri Lanka, Nepal and Bangladesh are three countries India feels are still up for grabs to try to control the neighbourhood,” says Dr Subir Sinha, a development expert from SOAS.

The “vaccine maitri” program has also drawn some criticism. Critics are questioning India’s decision to export the vaccines, instead of speeding up the vaccination drive. So far, India has exported more doses than it has administered locally. Most of these criticisms have been debunked by medical experts. “You cannot consume all the vaccines you produce yourself in a short time. They have a shelf life”, claims C. Raja Mohan, Director of the Institute of South Asian Studies, National University of Singapore.[ii]

China has adopted a similar method to strengthen meaningful alliances. The Beijing-based biopharmaceutical company Sinovac is behind the CoronaVac, an inactivated vaccine. Coronavac can be stored in a standard refrigerator at 2-8 degrees Celsius, like the Oxford-AstraZeneca vaccine. Hence, the Chinese vaccine, too, is suitable for developing countries. Sinovac has an estimated capacity of 300 million doses a year in its new facility. Sinopharm is another pharmaceutical company, owned by the State. In early February, half a million doses of the Chinese Sinopharm COVID-19 vaccine arrived in Pakistan, before soon also reaching 13 other countries including Cambodia, Nepal, Sierra Leone and Zimbabwe.[iii]

In addition to developing and manufacturing vaccines, India has another challenge from the propaganda machinery of China. China has been accused of running smear campaigns, against vaccines from other countries. Through the Chinese government’s propaganda print Global Times, China has spread misinformation about India’s capacity to manufacture vaccines and how Indian’s are embracing Chinese vaccines instead of Indian vaccines. China has also run similar smear campaigns against vaccines of North American and European origin. Apart from the misinformation campaign directed against Indian Vaccine by the state controlled propaganda machinery, China has also roped in rough non-state actors to apply brakes to India’s vaccine mission. Reported cyber-attacks by Chinese hackers  to the not so advanced IT systems of two Indian vaccine makers is definitely a cause for concern for the Indian side. [iv]

Historically, vaccine diplomacy is a tried and tested method for extending soft power and spreading influence. The smallpox eradication drive in 1965, for instance, was in part successful by the virtue of Soviet Union and United States rivalry.[v] Similarly, in the 2002 SARS epidemic, China extended its financial and medical resources to the affected countries.

Vaccine Nationalism and equitable access to vaccines

“Vaccine nationalism” is a term that found its place again in the current geopolitical scenario. Countries prioritize their own vaccine needs, resulting in leaving less for other countries. The current situation is similar to that of the 2009 H1N1 pandemic. Like the H1N1 pandemic, in the current situation too, access to vaccines for poorer countries was only possible after developed countries had already secured their required quota.

The richest nations have secured billions of doses of COVID-19 vaccines while developing economies struggle to access supplies. Only ten countries account for 95% of the total 40 million doses of COVID-19 vaccines administered globally to date. High-income countries have booked 60 percent of available doses by making overpriced deals with the manufacturers of the vaccine. Notably, these countries only consist of 16% of the world’s total population. With lower middle-income countries having 6 percent and low-income countries having only 4 per cent share of available vaccine doses, mass vaccination would only be achieved by 2024.

COVAX (COVID-19 Vaccines Global Access) is WHO’s ambitious global vaccine programme in collaboration with Global Alliance for Vaccines and Immunization (GAVI) and Coalition for Epidemic Preparedness Innovations (CEPI). COVAX is struggling to make hay on their promise of providing two billion doses by the end of 2021.  To quote the Director General of WHO, “This is a very exciting moment. Countries are ready to go, but the vaccines aren’t there. We need countries to share doses once they have finished vaccinating health workers and older people.”[vi]

The sovereign states have an obligation to ensure global health, through a number of international declarations and conventions that articulate human right to health namely, Article 25 of the Universal Declaration of Human Rights[vii], Article 24 of the Convention on the Rights of the Child[viii], Article 25 of the Convention on the Rights of Persons with Disabilities[ix], Articles 12 and 14 of the Convention on the Elimination of All Forms of Discrimination against Women[x] and Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination[xi]. Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR)[xii] is also of utmost importance to this discussion on the right to health. Furthermore, Article 55 of the UN Charter[xiii] emphasizes upon human rights and tackling the root causes of war

Article 55(b) especially deals with the need for building international cooperation in finding solutions to international economic social health and related problems

“With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and

Article 56 of the Charter talks about the States’ obligation to fulfil the objectives put forth by Article 55.”

Article 56

“All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”

To gain equitable access to COVID-19 vaccines, India and South Africa has put forth a proposal to waive obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS)[xiv]. TRIPS is the most comprehensive multilateral World Trade Organization (WTO) agreement on intellectual property. During the last TRIPS council meeting held on 4th of February, developed countries continued to oppose the proposal on the grounds that Intellectual Property Rights are not a significant hindrance in gaining access to vaccines. It is to be noted that flexibilities are well established in the agreement itself; for instance, for Public Health Emergencies.

Article 31: Other Use Without Authorization of a Right Holder

Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:

(b)  such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;

The WTO members further emphasized on the interpretation of the flexibilities in Article 31 of the TRIPS agreement in the 2001 Doha Declaration on TRIPS and Public Health:

“We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.”

India may invoke the national security exception in the TRIPS Agreement, as provided under Article 73 of the Trips Agreement. This would suspend the enforcement of patent rights, and would enable the states to locally produce the vaccines. The most pertinent provision with regard to COVID-19 is Article 73(b)(iii) of the TRIPS Agreement which mirrors Article XXI(b)(iii) of GATT[xv]. Article 73(b)(iii) permits a state to take ‘any action which it considers necessary for the protection of its essential security interests’ during the ‘time of war or other emergency in international relations’.

To conclude, it can be safely said that vaccines may define the next era of international politics. The rise of vaccine nationalism has given place to vaccine diplomacy undoubtedly. The vaccine diplomacy exercised by the countries is, however, not free from naked self-interest. This is not surprising considering that the sovereign states are driven solely by the desire to protect, promote and preserve national interest in a community of nation-states of sovereign equals. By exerting vaccine diplomacy; the Republic of India and the People’s Republic of China are cherry-picking the nations they can influence the most. What may seem like a selfless deed now, may soon result in the formation of new alliances and rivalries among states.

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[i] ‘Rich nations ‘hoarding’ a billion doses of excess COVID vaccine’, Al Jazeera, 19 February 2021. Available at: https://www.aljazeera.com/news/2021/2/19/covid-vaccine (Accessed: 23 February 2021).

[ii] Sharma, A. (2021) ‘Is India’s COVID vaccine giveaway risky diplomacy?’ DW, 16 February 2021. Available at: https://www.dw.com/en/is-indias-covid-vaccine-giveaway-risky-diplomacy/a-56590143 (Accessed: 20 February 2021).

[iii] Jennings, M. (2021) ‘Vaccine diplomacy: how some countries are using COVID to enhance their soft power’ The Conversation, 23 February 2021. Available at: https://theconversation.com/vaccine-diplomacy-how-some-countries-are-using-covid-to-enhance-their-soft-power-155697 (Accessed: 21 February 2021).

[iv] Das, K. (2021) ‘Chinese hackers target Indian vaccine makers SII, Bharat Biotech, says security firm,’ Reuters, 1 March 2021. Available at: https://www.reuters.com/article/health-coronavirus-india-china/update-1-chinese-hackers-target-indian-vaccine-makers-sii-bharat-biotech-says-security-firm-idUSL2N2KZ13L (Accessed: 1 March 2021).

[vi] WHO (2021). COVID-19 Virtual Press conference [Press release] 5 February. Available at: https://www.who.int/publications/m/item/covid-19-virtual-press-conference-transcript—5-february-2021 (Accessed: 25 February 2021).

[vii] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

[viii] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3

[ix] UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106

[x] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13

[xi] UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195

[xii] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3

[xiii] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI

[xiv] TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) 

[xv] GATT 1994:General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994)