Introduction

In the aftermath of the Covid-19 Pandemic, in pursuance of reforming and strengthening global health law, various organisations reviewed the International Health Guidelines (‘IHR’) and 3 major reports suggested strengthening and increasing the role of the World Health Organisation (‘WHO’) and the adoption of a new Pandemic treaty to combat global health emergencies. Consequently, the WHO released a list of Proposed Amendments to the International Health Regulations in 2022 and a Reference Document with Technical Recommendations on the proposed amendments. It then released two drafts of a proposed pandemic treaty (‘Accord’) in February 2023 and June 2023 respectively. Negotiations on both the Accord and amendments to IHR are currently underway and will be taken up for final discussion and adoption in the 77th World Health Assembly to be held in May 2024.

In this article, I argue that while the intent to introduce the concept of ‘common but differentiated responsibilities’ (‘CBDR’) in global health law through the proposed amendments to the IHR and the proposed Pandemic Accord is laudable, the current drafts fall short of realising this intent. This makes the instruments, as currently proposed, inequitable for developing countries. To this end, I use the lens of State Responsibility to analyse the existing and proposed global health legal framework. In Part I, I examine the basic principles of State Responsibility in International Law and its importance in the field of global health. Thereafter, in Part II and III, I analyse the proposed amendments to the IHR and the Pandemic Accord, respectively, from the perspective of the State Responsibility of developing countries and put forth my arguments.

Part I – State Responsibility in International Law

State Responsibility is one of the most important pillars that upholds the international legal framework. It refers to the responsibility of States for international wrongful acts or omissions. The rules governing State Responsibility are given in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001 (‘ARSIWA’).Under ARSIWA, States can be held responsible for not only their actions but also their omissions. This is particularly important from the perspective of international health because States are more likely to fail to do what is required than to actively jeopardise global health. Such omissions may include inaction in fulfilling their obligations under IHR such as non-reporting of information to the WHO, not building sufficient core capacity etc. 

For developing countries, determining the standard of State responsibility in the global health legal framework becomes particularly important for two reasons: firstly, it provides legal recourse (in the form of obligations of continuing performance of breached obligation, cessation, monetary compensation, damages, satisfaction etc) to enforce their interests when  developed countries shirk their obligations of providing assistance in the form of finance, technical aid or other resources as provided for in the IHR and; secondly, the adoption of concepts like ‘common but differentiated responsibilities’ ensure that they are not disadvantaged by having to bear the same responsibility as developed states (above the minimum requirements of global health) in areas such as financial contributions and resource assistance as that would be inequitable. While the element of attribution in determining State responsibility is a matter to be determined by a fact-specific analysis, the element of violation of the international obligation is dependent on the primary obligation of the States, as will be laid down in the amended IHR and the Pandemic Accord. In the next section, I analyse the proposed International Health Regulations from the lens of State Responsibility and CBDR.

Part II – Assessing State Responsibility and CBDR in International Health Regulations

Explicit Recognition of CBDR

In general, the proposed amendments to the IHR seek to impose binding and mandatory obligations on parties to undertake their commitment under the Regulations, rather than just directory recommendations relating to their conduct. However, one proposed amendment which is of particular consequence for developing countries is the introduction of the concept of “common but differentiated responsibilities” (CBDR) in Article 3, which lays down the basic principles that guide the implementation of the Regulations. This principle is also reiterated explicitly in the proposed amendments to Article 61 (rejections), Article 62 (reservations), and extensions (Articles 5 and 13) in the proposed new regulations.

The Review Committee set up to provide technical recommendations on the proposed amendments acknowledged CBDR’s environmental law origins and said (pg 6) that it “supports the spirit of the proposal” which was “intended to give normative significance and implications to the profound differences between the respective resources and capacities of States Parties”. However, it also mentioned that some Committee Members expressed their apprehensions about the factual and conceptual application of CBDR to public health risks, perhaps because public health emergencies such as Covid affect everyone, without differentiating between developed and developing countries. Nonetheless, the Committee recognised differences in the levels of economic and social development of State parties which could influence the implementation of the Regulations. Although the Report does not further elaborate on this point, the consequence of this is that by not accounting for the differences in resources and core health capacities of various countries, the Regulations impose the same level of obligation on all countries. This ignores the difference between countries being unable to fulfil their commitments due to lack of resources (generally poor developing countries) and countries which do not fulfil their obligations despite having the capacity to do so. 

Concerns with the proposed amendments to Article 44 of IHR

Another significant amendment that has been proposed is to Article 44 of the IHR. Article 44 is one of the most important Articles of the Regulations because it lays down general provisions regarding “Collaboration and Assistance” between countries in the context of global health, which is a key area of emphasis in the Regulations in particular, and that of global health security in general. The Article currently reads as “1. States Parties shall undertake to collaborate with each other, to the extent possible, in:” (emphasis mine) and lists various areas of collaboration such as technical assistance, formulation of laws etc. The proposed amendment to the article makes it read as “1. States Parties shall collaborate with and assist each other, in particular developing countries States Parties, upon request, in:” (emphasis mine) and adds a few more additional areas of collaboration to the existing list. The proposed amendment to the article has various implications.

Firstly, the recommended change of “shall undertake to collaborate” to “shall collaborate” is indicative of a more stringent imposition of legal obligation since the clause now mandates action, rather than just an agreement to take action. This might seem beneficial for developing countries, particularly when read in light of the proposed amendment to Article 13 paragraph 1 (pg 34) which explicitly mandates that Developed State Parties and the WHO shall offer assistance to developing countries. However, while Article 13 paragraph 1 caveats this increased responsibility of the developed countries by saying that this is dependent on their availability of finance, technology and know-how, the increase in the State Responsibility of countries brought about the change in this wording in Article 44 does not explicitly provide for a lower obligation to be imposed on  developing countries based on their differential capabilities, and rather increases the obligation on all countries. The effect is that this amendment increases the obligations of not just developed countries, but also that of developing countries.

Secondly,the explicit mention of developing countries is with regards to assistance, and is acknowledged by the Review Committee as emphasizing the thrust of this article on mutual responsibility between State Parties (pg 66). In my view, this seems to be a positive addition to the guidelines as it seems to encourage cooperation and the sharing of physical and technical resources among member States.

Thirdly, the introduction of the new procedural step of ‘upon request’ which at first glance seems to reduce the State Responsibility of all countries, can on further scrutiny be considered an additional safeguard to protect the sovereignty of the State from undesired interference by other States under the guise of implementing the Regulations. This seems to be a double-edged sword- while it is an important safeguard that ensures that developed countries do not use collaboration and assistance as a pretext to interfere with the sovereign rights and internal affairs of developing countries, it also put the additional onus on developing countries to take on a more active role in asking for assistance or mobilising resources. This may be difficult for developing countries, considering firstly, the geopolitical power axis which tilts in favour of developed countries who consequently have higher bargaining powers and secondly, the possibility that developing countries, particularly those that are very poor and face political instability or insurgency, might prefer asking developed countries for help with regard to the provision of arms and ammunition to fight militants, due to which welfare objectives such as increasing public health capacities may take a backseat.

Fourthly, and most importantly, the review committee has made a technical recommendation (pg 66) saying that State Parties may wish to reflect on the “desirability of retaining the existing wording of ‘to the extent possible”. Yet, the Committee does not provide any reason for this recommendation. While the introduction of CBDR in the IHR is commendable from the perspective of developing countries, the omission of ‘to the extent possible’ is particularly pertinent for developing countries because this omission opposes the spirit of the guiding principle of CBDR that the proposed amendments seek to achieve.

The phrase ‘to the extent possible’ in the current Regulations can be interpreted as introducing a limitation on the obligation in Article 44 as well as providing some amount of flexibility in the obligations imposed, as it is to be read in the context of the term ‘shall’. This is indicative of the imposition of some mandatory obligation to achieve at least a minimum level of collaboration that was required to achieve the objectives of the IHR. This interpretation of the term ‘to the extent possible’ as imposing a minimum obligation while still accounting for differentiated responsibilities of countries over and above that minimum is essential to ensure that State Responsibility is equitably imposed in the context of public health. In fact, this interpretation, while protecting the rights of developing countries, even assuages the fears of some Committee Members regarding the conceptual application of CBDR in public health.

To conclude this part, I argue that although the introduction of CBDR as a guiding principle in the Regulations is a favourable step towards ensuring global health security in an equitable manner, substantive changes proposed to the IHR, such as the proposed amendment to Article 44, defeat the purpose of the introduction of this proposed guiding principle. It is unfavourable for developing countries because it does not account for differences in resources and other developmental parameters while imposing State Responsibility uniformly across all Parties. In the subsequent part of this piece, I analyse the Pandemic Accord from the lens of State Responsibility and CBDR.

You can read part II 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.