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United States Seeks Answers on COVID-19's Origin While Stepping Up “Vaccine Diplomacy”

Published online by Cambridge University Press:  15 October 2021

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As the COVID-19 pandemic continues to rage across the world, the United States and its allies are pushing for answers about the virus's origins while China rebuffs inquiry into its early handling of the outbreak. Meanwhile, a growing U.S. stockpile of vaccines has opened new avenues for “vaccine diplomacy,” and the Biden administration has thrown its weight behind an effort to suspend cross-border intellectual property (IP) rules for vaccine manufacturing. In the near term, however, experts expect vaccination rates and access will continue to vary widely between countries depending on their wealth.

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International Oceans, Environment, Health, and Aviation Law
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press for The American Society of International Law

As the COVID-19 pandemic continues to rage across the world, the United States and its allies are pushing for answers about the virus's origins while China rebuffs inquiry into its early handling of the outbreak. Meanwhile, a growing U.S. stockpile of vaccines has opened new avenues for “vaccine diplomacy,” and the Biden administration has thrown its weight behind an effort to suspend cross-border intellectual property (IP) rules for vaccine manufacturing. In the near term, however, experts expect vaccination rates and access will continue to vary widely between countries depending on their wealth.Footnote 1

In March 2021, the World Health Organization (WHO) and China jointly completed “part one” of an investigation into the origins of the novel coronavirus.Footnote 2 The investigative team that conducted the study included seventeen Chinese experts and seventeen international experts.Footnote 3 Their report did not identify the origin of the virus but instead assigned probabilities to four working theories. The report concluded, first, that introduction of the virus to humans through an intermediate animal host was “likely” or “very likely” the pathway of origin.Footnote 4 Under that scenario, the virus would have jumped from an animal such as a bat or pangolin, then to an animal that is in closer contact with humans, such as livestock, and then to humans themselves.Footnote 5 Second, the report said it was “possible to likely” that a bat or pangolin transmitted the virus directly to humans, a scenario known as “direct zoonotic spillover.”Footnote 6 Next, introduction through contaminated frozen food imports—China's favored theoryFootnote 7—was rated “possible.”Footnote 8 Finally, the experts concluded that an accidental laboratory leak was “extremely unlikely” because there was no record of viruses closely related to COVID-19 in any lab before December 2019.Footnote 9 They also pointed to the high-level safety ratings of labs in Wuhan, the city where the virus was first identified.Footnote 10 The group did not consider the hypothesis that the virus was deliberately engineered or intentionally released, citing scientists who ruled out the theory based on genomic analysis.Footnote 11

The United States and its allies criticized the study for its delayed start and lack of original data that could have provided more definitive answers. In a joint statement after the WHO report's release, Australia, Canada, Czechia, Denmark, Estonia, Israel, Japan, Latvia, Lithuania, Norway, the Republic of Korea, Slovenia, the United Kingdom, and the United States pressed for “expert-driven phase 2 studies.”Footnote 12 Although the statement did not directly criticize China, the countries stated:

[W]e voice our shared concerns that the international expert study on the source of the SARS-CoV-2 virus was significantly delayed and lacked access to complete, original data and samples. . . . It is critical for independent experts to have full access to all pertinent human, animal, and environmental data, research, and personnel involved in the early stages of the outbreak relevant to determining how this pandemic emerged.Footnote 13

The European Union (EU) ambassador to the United Nations expressed similar concerns, noting that “[e]very lack or delay in sharing public health information can have worldwide adverse impact.”Footnote 14

The WHO acknowledged deficiencies in the report, too. WHO Director-General Tedros Adhanom Ghebreyesus told reporters in July that there was a “premature push” to rule out the lab leak theory.Footnote 15 He called on China to be transparent and to cooperate with international experts in the second phase of the investigation to probe the lab accident theory more fully.Footnote 16

Thus far, however, China has refused to cooperate with phase two.Footnote 17 The vice minister of China's National Health Commission said the WHO's plan “disregards common sense and defies science.”Footnote 18 The White House slammed China's position as “irresponsible” and “dangerous” and promised that phase two of the study, unlike the first, would be “scientific, transparent, expert-led, and free from interference.”Footnote 19 For its part, the WHO called on governments to “depoliticize the situation and cooperate to accelerate the origins studies.”Footnote 20 Notwithstanding the first report's conclusion that a lab leak was “extremely unlikely,” the WHO defended further analyzing the possibility, explaining that “in order to address the ‘lab hypothesis,’ it is important to have access to all data and consider scientific best practice and look at the mechanisms WHO already has in place. WHO is only focused on science, providing solutions and building solidarity.”Footnote 21

Still, within the United States, China's accountability and apparent intransigence remain hotly political. Republicans on the House Foreign Affairs Committee, citing circumstantial evidence, released a report in August claiming that the novel coronavirus likely leaked from the Wuhan Institute of Virology laboratory in September 2019.Footnote 22 At least two U.S. states, Missouri and Mississippi, have joined dozens of plaintiffs in suing China and the Chinese Communist Party for negligence and other tort claims.Footnote 23 For the suits to proceed, plaintiffs must show that an exception to foreign sovereign immunity applies,Footnote 24 specifically, that the suit involves either “commercial activity” by Chinese officials in the United States or a tort committed by Chinese officials in their official capacity in the United States.Footnote 25 Many legal observers are skeptical that the suits fall within these exceptions.Footnote 26

With no conclusive answers from the WHO's origin-tracing efforts, President Biden turned to his intelligence agencies. In March, Biden “task[ed] the Intelligence Community to prepare a report on their most up-to-date analysis of the origins of COVID-19.”Footnote 27 In a statement at the end of May, Biden explained that “[a]s of today, the U.S. Intelligence Community has ‘coalesced around two likely scenarios’”—spillover from contact with an infected animal and a laboratory accident—“but has not reached a definitive conclusion on this question.”Footnote 28 Biden asked them “to redouble their efforts to collect and analyze information that could bring us closer to a definitive conclusion, and to report back . . . in 90 days.”Footnote 29

The report that resulted from Biden's directive in late August did not pinpoint the origin of COVID-19, but shed light on how U.S. intelligence agencies assessed various theories. The Office of the Director of National Intelligence (ODNI) released an unclassified summary of the report and said it intended to release a declassified version of the entire report “in the near future.”Footnote 30 Like the WHO-convened group, the intelligence community agreed that “the virus was not developed as a biological weapon.”Footnote 31 The report also assessed that Chinese officials “did not have foreknowledge of the virus before the initial outbreak of COVID-19 emerged.”Footnote 32 A majority of the intelligence community elements concluded the virus “probably was not genetically engineered,” but only with low confidence, while “two agencies believe there was not sufficient evidence to make an assessment either way.”Footnote 33

The intelligence agencies remain divided on the most likely origin but agreed that a laboratory incident or exposure to an infected animal were both “plausible” theories.Footnote 34 Four agencies and “the National Intelligence Council assess[ed] with low confidence” that the virus jumped from an animal to a human through natural exposure.Footnote 35 One agency assessed “with moderate confidence” that the first case was caused by “a laboratory-associated incident, probably involving experimentation, animal handling, or sampling by the Wuhan Institute of Virology.”Footnote 36 Other intelligence community “elements remain unable to coalesce around either explanation without additional information.”Footnote 37 The report concluded that in order to answer the origin question authoritatively, “China's cooperation most likely would be needed,” but the Chinese government

continues to hinder the global investigation, resist sharing information and blame other countries, including the United States. These actions reflect, in part, China's government's own uncertainty about where an investigation could lead as well as its frustration the international community is using the issue to exert political pressure on China.Footnote 38

In a statement responding to the report, Biden sharply criticized China for blocking access to information that could provide definitive answers.Footnote 39 He said:

We will do everything we can to trace the roots of this outbreak that has caused so much pain and death around the world, so that we can take every necessary precaution to prevent it from happening again.

Critical information about the origins of this pandemic exists in the People's Republic of China, yet from the beginning, government officials in China have worked to prevent international investigators and members of the global public health community from accessing it. To this day, the PRC continues to reject calls for transparency and withhold information, even as the toll of this pandemic continue[s] to rise.Footnote 40

Biden called on China “to fully share information and to cooperate with the World Health Organization's Phase II evidence-based, expert-led determination into the origins of COVID-19—including by providing access to all relevant data and evidence.”Footnote 41

As a definitive answer on COVID-19's origin evades government officials, scientists, and the WHO, countries everywhere are tackling the pressing matter of vaccinating their populations—an effort that has underscored global inequities in vaccine access. In May, the Biden administration reversed a prior U.S. position that would have kept in place IP protections for the pharmaceutical companies that developed the vaccines. Along with other wealthy nations, the United States had previously opposed waiving the IP rules in the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) out of concern that doing so would disincentivize scientific development.Footnote 42 Advocates of the proposed waiver, led by India and South Africa, however, argue that the extraordinary circumstances of the pandemic warrant a departure from typical IP rulesFootnote 43 and that it would help low- and middle-income countries gain access to vaccines, medical devices, diagnostics, and personal protective equipment by scaling up manufacturing capacity.Footnote 44 On May 5, U.S. Trade Representative Katherine Tai announced U.S. support for a vaccine waiver specifically, a narrower position than what India and South Africa have advocated. Tai stated:

This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines. We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen. Those negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved.Footnote 45

The EU said it was “ready to discuss any option that helps end the pandemic” but was “not convinced that this would provide the best immediate response.”Footnote 46 Ultimately, the decision rests with the WTO, whose members have yet to agree on a waiver or its potential scope.

As a more immediate measure, the United States has responded to calls for international assistance by allocating a greater number of vaccines to foreign countries. After facing criticism earlier in the year for failing to share vaccines abroad,Footnote 47 Biden promised in a speech to a joint session of Congress at the end of April that the United States would “become an arsenal of vaccines for other countries—just as America was the arsenal of democracy in World War 2.”Footnote 48 After a slow start, the Biden administration announced in August that the United States had donated and shipped more than 110 million doses abroad, an amount greater than the combined donations of all other countries, according to the United Nations.Footnote 49 So far, the United States has pledged to donate 500 million doses by the summer of 2022.Footnote 50 While touting its newfound position as the leader in “vaccine diplomacy,” the White House acknowledged the figure was only a fraction of the billions of vaccines needed to get the virus under control globally.Footnote 51

For the most part, the donated vaccines are not shipped directly to recipient countries. Instead, the United States is working through the COVAX Initiative, a public-private partnership that the Biden administration joined within hours of Biden's inauguration.Footnote 52 Despite the commitment, the administration has faced criticism for holding onto vaccines when so many in the United States have turned down the shot and so many abroad are desperate to get it.Footnote 53 Though the United States shared four million doses with Mexico and Canada in the spring, the donations to COVAX did not start in earnest until mid-summer.Footnote 54 Even equipped with vaccines—though far fewer than its target—COVAX has struggled to deliver doses to rural communities in poor countries.Footnote 55 Wealthy countries have also taken from the COVAX supply, which was intended to aid poor countries.Footnote 56

Beyond the humanitarian goal of saving lives, the vaccine donations could also produce diplomatic dividends. Early in 2021, Russian and Chinese vaccine donations outpaced those of the United States.Footnote 57 Announcing in May that the United States would ship 80 million vaccine doses abroad by the end of June, Biden emphasized that the amount was “five times more than any other country” had shared and “more than Russia and China.”Footnote 58 Biden said:

[T]here's a lot of talk about Russia and China influencing the world with vaccines. We want to lead the world with our values—with this demonstration of our innovation, ingenuity, and the fundamental decency of the American people. . . .

We'll share these vaccines in the service of ending the pandemic everywhere. And we will not use our vaccines to secure favors from other countries. Footnote 59

Biden and his deputies have repeatedly said that U.S.-donated vaccines would be free and would come with “no demands, no conditions, no coercion attached,” apparently drawing a contrast to Russia and China.Footnote 60 Scientists and health officials have questioned the efficacy of the Chinese-made shots, leading some Southeast Asian countries that received China's vaccines to seek doses from Western drug-makers such as Moderna and Johnson & Johnson.Footnote 61 The demand has created a diplomatic opening for the United States in the region to send vaccine donations.Footnote 62

Vaccination efforts are racing against the emergence and spread of new variants. As of late August, the worldwide tallies stood at more than 216 million confirmed cases of COVID-19 infections, 4.5 million deaths, and some five billion vaccine doses administered.Footnote 63

References

1 See, e.g., World Bank Press Release, COVAX and World Bank to Accelerate Vaccine Access for Developing Countries (July 26, 2021), at https://www.worldbank.org/en/news/press-release/2021/07/26/covax-and-world-bank-to-accelerate-vaccine-access-for-developing-countries [https://perma.cc/QQ9E-C5JT].

2 Joint WHO-China Study Team, WHO-Convened Global Study of Origins of SARS-CoV-2: China Part, World Health Org. (Mar. 30, 2021), at https://www.who.int/publications/i/item/who-convened-global-study-of-origins-of-sars-cov-2-china-part [https://perma.cc/N9RT-H6PC] [hereinafter WHO Report].

3 Id. at 12.

4 Id. at 116.

5 Id. at 114–16.

6 Id. at 114.

7 E.g., Jeremy Page, Drew Hinshaw & Betsy McKay, WHO Caught Between China and West on Frozen-Food Coronavirus Transmission, Wall St. J. (Jan. 22, 2021), at https://www.wsj.com/articles/who-caught-between-china-and-west-on-frozen-food-coronavirus-transmission-11611324088.

8 WHO Report, supra note 2, at 118.

9 Id. at 119–20.

10 Id.

11 Id. at 118.

12 U.S. Dep't of State Press Release, Office of the Spokesperson, Joint Statement on the WHO-Convened COVID-19 Origins Study (Mar. 30, 2021), at https://www.state.gov/joint-statement-on-the-who-convened-covid-19-origins-study/ [https://perma.cc/749N-USQT].

13 Id.

14 European Union Press Release, EU Statement on the WHO-led COVID-19 Origins Study (Mar. 30, 2021), at https://onu-geneve.delegfrance.org/EU-statement-on-the-WHO-led-COVID-19-origins-study?lang=en.

15 Tedros Adhanom Ghebreyesus, Director-General, World Health Org., COVID-19 Virtual Press Conference Transcript, at 26:30 (July 15, 2021), at https://www.who.int/publications/m/item/covid-19-virtual-press-conference-transcript---15-july-2021.

16 Id.

17 See, e.g., Gabriel Crossley, China Rejects WHO Plan for Study of COVID-19 Origin, Reuters (July 22, 2021), at https://www.reuters.com/world/china/china-will-not-follow-whos-suggested-plan-2nd-phase-covid-19-origins-study-2021-07-22.

18 Id.

19 White House Press Release, Press Briefing by Press Secretary Jen Psaki and Secretary of Commerce Gina Raimondo (July 22, 2021), at www.whitehouse.gov/briefing-room/press-briefings/2021/07/22/press-briefing-by-press-secretary-jen-psaki-and-secretary-of-commerce-gina-raimondo-july-22-2021 [https://perma.cc/CVL6-CQFF].

20 WHO Statement on Advancing the Next Series of Studies to Find the Origins of SARS-CoV-2 (Aug. 12, 2021), at https://www.who.int/news/item/12-08-2021-who-statement-on-advancing-the-next-series-of-studies-to-find-the-origins-of-sars-cov-2.

21 Id.

22 Minority Staff of H. Foreign Affs. Comm., 117th Cong., The Origins of COVID-19: An Investigation of the Wuhan Institute of Virology 4 (2021), available at https://gop-foreignaffairs.house.gov/wp-content/uploads/2021/08/ORIGINS-OF-COVID-19-REPORT.pdf [https://perma.cc/F7NE-BLT8].

23 Sean Mirski & Shira Anderson, What's in the Many Coronavirus-Related Lawsuits Against China?, Lawfare (June 24, 2020), at https://www.lawfareblog.com/whats-many-coronavirus-related-lawsuits-against-china.

24 See, e.g., Jennifer K. Elsea, Cong. Res. Serv., LSB10467, Foreign Sovereign Immunity and COVID-19 Lawsuits Against China 1–2 (2020).

25 Id. at 2–3.

26 Id.

27 White House Press Release, Statement by President Joe Biden on the Investigation into the Origins of COVID-19 (May 26, 2021), at https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/26/ statement-by-president-joe-biden-on-the-investigation-into-the-origins-of-covid-19 [https://perma.cc/QRW8-SDE5].

28 Id.

29 Id.

30 Off. Dir. Nat'l Intel. Press Release, ODNI Issues Summary of Assessment on COVID-19 Origins (Aug. 27, 2021), at https://www.dni.gov/index.php/newsroom/press-releases/press-releases-2021/item/2237-odni-issues-summary-of-assessment-on-covid-19-origins [https://perma.cc/Z46D-TTNQ].

31 Off. Dir. Nat'l Intel., Unclassified Summary of Assessment on COVID-19 Origins (2021), available at https://www.dni.gov/files/ODNI/documents/assessments/Unclassified-Summary-of-Assessment-on-COVID-19-Origins.pdf [https://perma.cc/A6JE-AVKX].

32 Id. at 1.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id. at 2.

39 White House Press Release, Statement by President Joe Biden on the Investigation into the Origins of COVID-19 (Aug. 27, 2021), at https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/27/statement-by-president-joe-biden-on-the-investigation-into-the-origins-of-covid-%e2%81%a019 [https://perma.cc/RJ8K-BCAC].

40 Id.

41 Id.

42 See, e.g., Pfizer Press Release, An Open Letter from Pfizer Chairman and CEO to Colleagues, at https://www.pfizer.com/news/hot-topics/why_pfizer_opposes_the_trips_intellectual_property_waiver_for_covid_19_vaccines [https://perma.cc/TL62-6QY5]; Sam Meredith, Rich Countries Are Refusing to Waive the Rights on COVID Vaccines as Global Cases Hit Record Levels, CNBC (Apr. 22, 2021), at https://www.cnbc.com/2021/04/22/covid-rich-countries-are-refusing-to-waive-ip-rights-on-vaccines.html.

43 World Trade Org. Press Release, Members Discuss TRIPS Waiver Request, Exchange Views on IP Role Amid a Pandemic (Feb. 23, 2021), at https://www.wto.org/english/news_e/news21_e/trip_23feb21_e.htm.

44 Anthony D. So, WTO TRIPS Waiver for COVID-19 Vaccines, Johns Hopkins U. (May 10, 2021), at https://www.jhsph.edu/covid-19/articles/wto-trips-waiver-for-covid-19-vaccines.html [https://perma.cc/PJ6J-9AVN].

46 European Commission Press Release, EU Proposes a Strong Multilateral Trade Response to the COVID-19 Pandemic (June 4, 2021), at https://ec.europa.eu/commission/presscorner/detail/en/IP_21_2801.

47 See, e.g., Noah Weiland & Rebecca Rollins, The U.S. Is Sitting on Tens of Millions of Vaccine Doses the World Needs, N.Y. Times (Mar. 11, 2021), at https://www.nytimes.com/2021/03/11/us/politics/coronavirus-astrazeneca-united-states.html.

48 White House Press Release, Remarks as Prepared for Delivery by President Biden — Address to a Joint Session of Congress (Apr. 28, 2021), at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/28/remarks-as-prepared-for-delivery-by-president-biden-address-to-a-joint-session-of-congress [https://perma.cc/3MKQ-QXL6].

49 White House Press Release, Fact Sheet: President Biden Announces Major Milestone in Administration's Global Vaccination Efforts: More than 100 Million U.S. COVID-19 Vaccine Doses Donated and Shipped Abroad (Aug. 3, 2021), at https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/03/fact-sheet-president-biden-announces-major-milestone-in-administrations-global-vaccination-efforts-more-than-100-million-u-s-covid-19-vaccine-doses-donated-and-shipped-abroad [https://perma.cc/P7WK-GST8].

50 White House Press Release, Fact Sheet: President Biden Announces Historic Vaccine Donation: Half a Billion Pfizer Vaccines to the World's Lowest-Income Nations (June 10, 2021), at https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/10/fact-sheet-president-biden-announces-historic-vaccine-donation-half-a-billion-pfizer-vaccines-to-the-worlds-lowest-income-nations [https://perma.cc/59Q7-D7GU].

51 White House Press Release, Remarks by President Biden on Fighting the COVID-19 Pandemic (Aug. 3, 2021), at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/08/03/remarks-by-president-biden-on-fighting-the-covid-19-pandemic [https://perma.cc/YR8Q-WSZH] (“We have committed to over a half a billion doses. And we're trying to provide for more and provide for the capacity of countries like India to be able to produce the vaccine themselves.”).

52 Eichensehr, Kristen E., Contemporary Practice of the United States, 115 AJIL 309, 323 (2021)Google Scholar.

53 See, e.g., Tyler Pager & Dan Diamond, Biden Boosts Vaccine Donations, But Critics Say Far More Is Needed, Wash. Post (May 17, 2021), at https://www.washingtonpost.com/health/2021/05/17/biden-donates-20-million-vaccine-doses.

54 See Natalie Kitroeff, Maria Abi-Habib, Zolan Kanno-Youngs & Jim Tankersley, U.S. to Send Millions of Vaccine Doses to Mexico and Canada, N.Y. Times (Mar. 18, 2021), at https://www.nytimes.com/2021/03/18/world/americas/usa-mexico-vaccine-coronavirus.html; Sabrina Siddiqui, Biden Administration to Miss June Target for Some COVID-19 Vaccine Donations, Wall St. J. (June 21, 2021), at https://www.wsj.com/articles/biden-administration-to-miss-june-target-for-some-covid-19-vaccine-donations-11624306309.

55 Benjamin Mueller & Rebecca Rollins, Where a Vast Global Vaccination Program Went Wrong, N.Y. Times (Aug. 2, 2021), at https://www.nytimes.com/2021/08/02/world/europe/covax-covid-vaccine-problems-africa.html (describing logistical challenges in African countries such as the lack of ultra-cold freezers needed to store vaccines).

56 Maria Cheng & Lori Hinnant, Rich Nations Dip into COVAX Supply While Poor Wait for Shots, Assoc. Press (Aug. 14, 2021), at https://apnews.com/article/joe-biden-middle-east-africa-europe-coronavirus-pandemic-5e57879c6cb22d96b942cbc973b9296c.

57 Ryan Heath, Unable to Get U.S. Vaccines, World Turns to Russia and China, Politico (Feb. 25, 2021), at https://www.politico.com/news/2021/02/25/global-vaccine-public-relations-war-471665.

58 White House Press Release, Remarks by President Biden on the COVID-19 Response and the Vaccination Program (May 17, 2021), at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/05/17/remarks-by-president-biden-on-the-covid-19-response-and-the-vaccination-program-4 [https://perma.cc/HLX7-3BCT].

59 Id.

60 White House Press Release, Remarks by President Biden on Fighting the COVID-19 Pandemic (Aug. 3, 2021), at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/08/03/remarks-by-president-biden-on-fighting-the-covid-19-pandemic [https://perma.cc/PW7F-S2BU].

61 E.g., Sui-Lee Wee & Steven Lee Myers, As Chinese Vaccines Stumble, U.S. Finds New Opening in Asia, N.Y. Times (Aug. 20, 2021), at https://www.nytimes.com/2021/08/20/business/economy/china-vaccine-us-covid-diplomacy.html.

62 Id.

63 WHO Coronavirus (COVID-19) Dashboard, at https://covid19.who.int (last visited Aug. 31, 2021).