In the wake of China's rapid ascendancy, are there any new rules made by the country in global health governance? This article examines China's emerging role in the Agreement on Trade Related Aspects of Intellectual Property Rights and finds that China adopts a pro-status quo stance on patented medicines. Aspiring to develop its own pharmaceutical sector to be capable to produce patented medicines on a par with the West, it has little appetite for using the prevailing rules or making new rules that are to the liking of the developing world. Undoubtedly, China is a new player in global health governance but has yet to have agenda-setting intent and capacity. This article argues that China's behavior and preferences can be explained by its dualistic national identities, the dominant position of realism in both the study of international relations and policy circles, and an underdevelopment of epistemic community in global health governance in the country. Keywords: China, global health governance, TRIPS agreement, national identity, realism.
DOES CHINA'S RISE INEVITABLY LEAD TO SYSTEMIC CHANGES IN GLOBAL GOVERNANCE? With a global shift in the balance of power toward the Global South in the wake of China's rapid ascendancy, one may ask if there are new rules in global health governance. In discussing the role of great powers in global health governance, which he calls post-Westphalian public health, David Fidler argues that on the one hand "the ... global health governance mechanisms in the SARS [severe acute respiratory syndrome] outbreak provides evidence that the great powers' influence in post-Westphalian public health is diminished," while on the other "the context of post-Westphalian public health heightens the importance of the great powers in new ways." (1) He refers to the fact that, although the Westphalian regime initially built by European powers has fallen apart in the wake of the outbreak of SARS in 2002-2003, a new post-Westphalian regime must be created by the great powers because only they have the required material resources to do so. This claim is given empirical support by the historical development of global health governance. A multilateral public health regime began to take shape in the mid-nineteenth century well before the emergence of the notion of global health governance in scholarly and policymaking circles in the 1990s. The driving force behind this multilateralism was a handful of major powers in Europe, which took great pains to stem the spread of contagious diseases from the less developed Asian, African, and Latin American countries while protecting their own trade interests.(2) Not surprisingly, the developing world was excluded from the rule-making process and institutions. Whereas "great powers" were referred to as the European states and the United States from the mid-nineteenth century to the end of the twentieth century, what is meant by "great powers" in the early twenty-first century?
While it is now common knowledge that China has emerged as a rapidly growing power on the world stage, China may not be a pro-status quo power in its participation in global governance since it is often of the view that the current rules of international institution are systematically weighted against the interests of the developing world, with the more powerful states imposing their favored liberal rules on the weak. (3) This seems to confirm a received wisdom nicely summarized as: "When rising powers join the world system, they want to remake rules that they did not shape and that they do not see as serving their interests." (4) It is therefore interesting and pertinent to ask whether this emerging power will counteract the established powers in Europe and North America in the governance of global public health. In this article, we focus on China's policies toward the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS agreement), which involves the members of the World Trade Organization (WTO) and the World Health Organization (WHO), and aim to account for China's incentive or disincentive to forge a new global health regime.
Contrary to conventional wisdom that holds that China, as a rapidly developing non-Western great power, would likely reshape the making and implementation of the principles, norms, and rules in the international institutions, we find that by and large China has stayed on the periphery of global health governance as far as the TRIPS agreement is concerned. It neither makes use of the flexibilities accorded by the agreement to produce more affordable medicines for impoverished patients in the developing world nor takes steps to put forward systemic changes in the agreement in favor of developing countries. This puzzle drives us to examine closely how China develops its preferences for the global health regime and how it pursues them.
We first provide a succinct description of the controversial issues of the TRIPS agreement with regard to public health, followed by China's responses to them. Drawing on mainstream international relations perspectives and adopting an analytic eclectic approach, we then analyze and explain China's roles in and preferences for the global health regime. We postulate an argument that China's behavior and preferences can be explained by its dualistic national identities, the dominant position of realpolitik thought in the country, and a lack of an epistemic community in health governance. Finally, we use this framework to illustrate China's agenda in public health and its implications for global health governance.
The TRIPS Agreement, the Doha Declaration, and Public Health
One of the international public laws that has direct impacts on global public health is the TRIPS agreement under the WTO. In order to ensure that private corporations, mostly from developed countries, have the incentive to invest in research and development (R&D) of new products, the TRIPS agreement sets down the minimum standards for many forms of intellectual property regulations (patent protection) that would eventually apply to all WTO members. However, this patent protection has sparked debates between developed and developing countries (as well as their respective nonstate supporters) on the costs and benefits of intellectual property rights (IPR) to public health.
Under the TRIPS agreement, the pharmaceutical industry has the right to a twenty-year monopoly on its inventions. No one can register a generic product without the patent holder's agreement during the life of the patent. (5) Although the TRIPS agreement itself allows developing countries to override drug patents by issuing "compulsory licences" to manufacture generic anti-retrovirals (ARVs) under Article 31(f), generic drugs produced under a compulsory license "shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use" (emphasis added). In other words, the compulsory licensing provisions would be of little help to most developing countries that do not have sufficient manufacturing capacity to produce ARVs domestically. This outstanding issue could not be resolved in the WTO ministerial conferences in Seattle (1999) and in Doha (2001) and was only noted in Paragraph 6 of the Doha declaration. (6) It was eventually addressed in August 2003 in an interim WTO TRIPS Council decision after a shift in US policy. The interim decision, a waiver to set aside Article 31(f) but not a deletion, was eventually made permanent in an amendment to the TRIPS agreement in December 2005. However, the amendment has yet to take effect, pending ratification by two-thirds of WTO members. (7)
Nevertheless, since its setup in August 2003, the so-called Paragraph 6 system has been successfully used only once for less developed countries, when Rwanda imported generic HIV/AIDS medications from Apotex, a Canadian generic pharmaceutical company. (8) The extremely rare use of compulsory license has spurred another debate on whether the current global patent rules are compatible with public health. During the TRIPS Council meeting on 1 March 2011 members, largely from the developing world, claimed that the Paragraph 6 system was "almost unusable because of complex procedural requirements." (9) According to Apotex, the procedures taken to manufacture and export the generic medicine "are simply too difficult and complicated" and it "will not use [them] again." (10)
In addition, the TRIPS agreement is often blamed by developing countries as well as civil society organizations for making the prices of essential medicines prohibitively high and, as a result, preventing the poor from gaining access to life-prolonging or life-sustaining medications and treatment.
They argue that the patent protection under the TRIPS agreement favors and protects the interests of big pharmaceutical companies at the expense of the protection of human rights. (11) The international outcry on the high cost of HIV antiretroviral medications has drawn growing attention to the importance of access to essential drugs and medications, which has been regarded as part of human rights in health by the WHO. (12) While the TRIPS Council has been revisiting the Paragraph 6 system since October 2010, (13) patents on medicines and IPR remain an unresolved issue driving developed and developing countries apart. More seriously, beyond the WTO framework, the United States and European developed countries have tried to tighten its grip on the global IPR regime and patent laws by pushing forward TRIPS-plus provisions in bilateral and regional free trade agreements that would undermine the flexibilities accorded by the Doha declaration. (14) Given those constraints, a seemingly viable option is to pursue South-South cooperation whereby moderately developed countries with fairly developed pharmaceutical sectors enter into joint ventures with the least developed countries to produce generic...