Part III – Assessing State Responsibility and CBDR in The Pandemic Accord

The drafts of the Pandemic Accord contemplate the introduction of the principle of CBDR as a guiding principle which is commendable. However, from the February 2023 to the June 2023 draft, we see several changes which raise concerns about the dilution of CBDR as initially envisaged in the first draft. This is of particular consequence to the State Responsibility of developing countries since both drafts impose mandatory obligations on State Parties by the usage of the term ‘shall’ in most provisions.

Weakening of CBDR in June Draft’s Article 3 Alternatives

The February 2023 draft of the Accord suggests that the drafters initially contemplated the adoption of a much stronger form of the CBDR principle in its provisions. The draft explicitly mentions “common but differentiated responsibilities and capabilities in pandemic prevention, preparedness, response and recovery of health systems” with the States holding more resources relevant to pandemics (generally developed countries) bearing a commensurate degree of higher responsibility than others as a guiding principle of the treaty (Article 4 (8) of the February 2023 draft). This article also specifically referenced the aim of prioritising the specific needs and special circumstances of developing countries, particularly those that are vulnerable to the adverse effects of the pandemics, do not have adequate capacities to respond, and which might bear a disproportionately high burden.

However, the second draft of the treaty that was released in June 2023 provides 3 alternatives (in Article 3 (7))  to the adoption of CBDR. Article 3 (7.A) provides a severely watered-down version of the February 2023 text which acknowledges that parties with more resources and capacities should bear a commensurately higher degree of differentiated responsibility but does not acknowledge that developing countries are more vulnerable to pandemics like the February draft did. Article 3 (7.B) merely recognises the unequal development in the promotion of health and disease control in different countries as a ‘common danger’ under the diluted heading of “common responsibilities and different capabilities in pandemic prevention, response and recovery of health systems” but does not prescribe a course of action to address it. It has no reference to the concept of differentiated responsibilities and State obligations at all. The third alternative provided in Article 3(7.C) suggests a complete non-inclusion of the principle and is the most extreme alternative as it does not even acknowledge that different countries have different levels of capabilities and health infrastructure.

I argue that the second and third alternatives are in effect the same, because a mere recognition of different capabilities of different countries has no real effect on the legal obligations of the countries and thus does not embody the principle of CBDR, even if it is posited as such. On the face of it, these changes from the first to the second draft are indicative of apprehensions on part of the negotiating parties, particularly powerful developed countries, to allow for lower State responsibility of developing countries or undertaking of a higher responsibility of ensuring global health security themselves.

Analysing June Draft’s Article 17 Alternatives

Article 17 introduced in the June 2023 draft speaks of “Implementation, acknowledging differences in levels of development”. Again, a gradation of obligations in the form of alternative options have been presented. Article 17.A obligates developed countries to provide developing countries, who lack the necessary capacity to implement certain provisions of the Accord, with financial and technical assistance, technology transfer, and capacity building support but does not specify the limits on the obligations of developing countries. In contrast, Article 17.B is a better, more stringent alternative that not only requires developed countries to assist in these areas but also explicitly ties the obligations of developing countries to the successful fulfillment of developed countries’ commitments under the Accord (17.A (5)). Additionally, Article 17.B also requires the consideration of the administrative and institutional capabilities of developing countries, as well as their focus on economic, social development, and poverty eradication while determining their obligations.

I argue that while the first two alternatives of Article 17 seem to be steps in the right direction as they recognise the obligations of developed countries towards the developing countries, the third alternative, Article 17.C, poses the very real possibility of the complete non-inclusion of this article, and thus presents a serious concern for developing countries.

The final status of the State responsibility of the developing countries and the degree of obligation of providing assistance to developing countries imposed on developed countries depends on the outcome of the negotiations of the Intergovernmental Negotiating Body. It can only be hoped that pressure from internationally powerful groups such as the European Union does not dilute the responsibility imposed on developed countries of helping developing countries, while ensuring that an equitable level of responsibility required for global health security is also fixed on developing countries during the treaty negotiations.

Conclusion

In this article, I have analysed the State Responsibility of developing countries as envisioned in the proposed legal framework of global health security, particularly the amended IHR and the Pandemic Accord. My analysis primarily hinged on the proposed introduction of CBDR in these instruments. I argue that while this is a positive step that furthers the interests of developing countries, there is a possibility that only a diluted version of it may actually be adopted. However, more clarity on the final status of its adoption and the manner and form of the concretisation of CBDR into substantive provisions is yet to come because negotiations on these instruments are still ongoing. We might not have to wait too long since the 77^th World Health Assembly set to be held in May 2024 might provide us with some answers.

You can read part I here.

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Viditha Mahajan is a second-year undergraduate law student at the National Law School of India University, Bangalore. 

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Photo: Jason Ford for NYtimes.