Developed nations oppose CBDR in new pandemic instrument

WHO logo. Wikimedia Commons.

29 July, Geneva (Nithin Ramakrishnan) – Developed countries have opposed the inclusion of the principle of common but differentiated responsibilities (CBDR) in the working draft for a new pandemic instrument being negotiated at the World Health Organization.

An Intergovernmental Negotiating Body (INB) has been mandated by the World Health Assembly to develop a WHO convention, agreement, or other international instrument for pandemic prevention, preparedness and response (pandemic instrument).

Many developed country Member States argued that the objectives of the CBDR principle can be incorporated into operative paragraphs of the new pandemic instrument or can be achieved through other means without explicitly mentioning CBDR.  However, developing countries are not convinced with this approach.

The 2nd Session of the INB (INB2) took place in a hybrid mode at the WHO Headquarters in Geneva on 18-22 July where Member States discussed the working draft (A/INB/2/3). The sessions are co-chaired by Mr Roland Driece of the Netherlands and Ms Precious Matsoso of South Africa. The working draft was prepared ahead of the INB2 meeting and made publicly available on 13 July.

CBDR is incorporated and operationalized in the United Nations Framework Convention on Climate Change (UNFCCC) Article 3 that states: “The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof”.

The principle thus entails that while pursuing a common goal, States undertake different obligations depending upon their socio-economic situation and their historical contribution to the problems at stake. For developing countries reference to this principle in the working draft is important to ensure that the drafting of the future drafts will take into account this crucial principle for international cooperation in addressing global problems.

The working draft for INB2, however, does not contain CBDR in its proper form in Paragraph 9 of Article 4, Part II. The INB Bureau which prepared the working draft used the phrase “shared but differentiated responsibilities and capabilities” instead of “common but differentiated responsibilities and respective capabilities” as found in UNFCCC. The words “common” and “respective” do not appear in paragraph 9 of the INB working draft creating larger implications for developing countries.

The annotation in Paragraph 9 of Article 4 explains the principle of shared but differentiated responsibilities and capacities as follows: “Full consideration and prioritization are required of the specific needs and special circumstances of developing country Parties, especially those that (i) are particularly vulnerable to adverse effects of pandemics; (ii) do not have adequate conditions to respond to pandemics; and (iii) would have to bear a disproportionate or abnormal burden.”

(In Article 3 on the Principles of UNFCCC, the phrase used is “common and differentiated responsibilities, and respective capabilities”.)

While countries such as Monaco, the United States, New Zealand, Australia, the United Kingdom and the European Union expressed reservation on the inclusion of Article 4, paragraph 9, countries including Bangladesh, Malaysia, Pakistan and Namibia called for specific reference to “common but differentiates responsibilities” in that paragraph instead of “shared but differentiated responsibilities”.

Opposing countries argued that the principle is borrowed from other international legal regimes like climate change and not appropriate in the global health scenario. It is interesting to note that the same developed countries are trying to mainstream ideas of the One Health Approach within the new pandemic instrument, which combines actions and obligations of Member States from various other international legal regimes.

Monaco who was the first Member State to provide comments on the working draft during the meeting, expressed its reservations on the principle of CBDR. Its introductory statement extended a caution that some concepts that may have been imported from other international instruments cannot be simply transferred as they are. According to Monaco, the phrase “common but differentiated responsibilities” was used in a particular context in UNFCCC and this will not be applicable in the context of pandemic governance. Nevertheless, Monaco acknowledged that the ideas or goals intended to be achieved through this principle may be attained through other principles like equity and solidarity.

New Zealand expressed caution over drawing in principles from other types of agreements that may be less relevant and helpful in the current context about shared but differentiated responsibilities. The delegate expressed a view that “responsibilities” need not be a concept that has particular relevance to the discussion of health risks. However, New Zealand acknowledged that support from developed countries to developing countries may be obtained through detailed and operative provisions in the instrument rather than a “convoluted” principle of common but differentiated responsibilities.

The United States also joined the calls from others cautioning the inclusion of CBDR in the working draft, although the wording used is “shared but differentiated responsibilities and capabilities”. It stated that CBDR is not a recognized principle in global health and characterised CBDR as a potentially divisive concept, and also as a concept that has not proven ultimately effective at mobilising action.

The European Union stated that they are not convinced with importation of the concept of common but differentiated responsibilities in a lock, stock and barrel approach. The United Kingdom, on the other hand, made a very blunt statement that this principle will not steer the INB to consensus.

Australia also cautioned Members States on the inclusion of CBDR. It called for consideration of the appropriateness of adopting the principle to the context of pandemic preparedness and response and welcomed further discussions on incorporating the intention of shared but differentiated responsibilities.

Brazil and Paraguay, however, explained how CBDR fits into the regime of pandemic preparedness and response, and expressed willingness to further discuss and negotiate the principle and its manifestations in the new pandemic treaty.

Brazil referred to the countries with huge national hoardings and countries with capacities to maintain large stockpiling of health products, stressing that such varied capacities amongst countries must give an intuition about why the CBDR principle is to be incorporated.

Paraguay said it is not about fixing responsibilities but about providing a coordinated response to pandemics.

Countries such as Pakistan, Bangladesh, Namibia, South Africa, Kenya, Malaysia and Fiji supported the inclusion of the principle.

Namibia stated that “it believes achieving true equity would require explicit acknowledgement of the principle of CBDR. We also emphasise that this principle includes taking measures to ensure that the pharmaceutical sector contributes fully to the global effort, by sharing intellectual property, transferring technology to developing countries and sharing monetary benefits to support pandemic preparedness, surveillance, and rapid response capacity.”

Bangladesh stated that “in our understanding, CBDR must be an integral component of the instrument – as a matter of fact, the most important element for the developing countries like Bangladesh.”  Bangladesh also requested the INB Bureau to correct the working draft to “common but differentiated responsibilities”, instead of erroneous representation of “shared but differential responsibilities and capabilities” in the document.

Bangladesh later spoke about CBDR in relation to the ‘One Health Approach’ urging for taking into account the inequities existing within and between countries, to enhance the efficacy of such approach as decided in the final report of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies.

It also cautioned that if developed countries are not able to include CBDR, then developing countries like Bangladesh would be constrained to implement One Health because of their capacity and resource limitations. It expressed doubts as to whether WHO is fully equipped to address the One Health approach with its current resource and capacity.

The INB Bureau was largely in alignment with the view that the document is still in the cultivation stage, meaning that the INB Bureau will primarily be doing fine editing of the text in order to arrive at a negotiating document. This could include deletion of the principle in paragraph 9 from the working draft or even result in the absence of principle of CBDR in the Conceptual Zero Draft for the WHO convention, agreement or other international instrument for pandemic prevention, preparedness and response. The preparation of the Conceptual Zero Draft will be the next step in the process.

“We will improve the document, whatever that is, and we will show you what that means. If we think that an improvement means altering a text, or leaving something out, or adding anything, then we make that transparent for you. So, you can see what we do,” said the INB co-chair, Mr. Roland Driece, citing the paragraph 9 principle of shared but differentiated responsibilities as an example which needs some fine tuning.

Fine editing of CBDR: Improvement or Compromise?

It is interesting to note that such “fine editing” happens only with proposals made by developing countries. 47 countries of Africa, Bangladesh, Brazil and Paraguay have called for the inclusion of CBDR in pandemic governance, but the INB Bureau had already exercised its fine editing process which altered the CBDR terminology to “shared but differentiated responsibilities and capabilities”. This compromises the jurisprudential application of the principle of CBDR, raising several concerns.

Firstly, it neglects the long-standing history and jurisprudential understanding of the principle of CBDR. The new terminology bears the risk of stripping away the ability of developing countries to rely on jurisprudential materials and literature explaining the functioning of CBDR in the event of any dispute or difference of opinion with developed countries.

Secondly, it creates more complexity by replacing the idea of “common” with “shared”, which could also mean “apportioned” responsibilities. This favours the current approach of the developed countries in One Health surveillance, reducing developing countries to mere data collection points and their laboratories data collection agents, while data integration, analysis and intelligence units shall operate from developed country institutions.

Such an idea of shared responsibility could say developing countries’ responsibility in genomic surveillance ends with sequencing and sharing, while certain other rich and developed countries may take the responsibility of integrating the sequence information and conduct intelligence analysis. Such a model of genomic surveillance, without capacity building measures could be well accommodated under the notion of “shared responsibilities”.

Thirdly, the use of the adjective “differentiated” for capabilities is problematic because it opens the opportunities for WHO or the international community to dictate what capabilities each Member State should focus on when it comes to health systems strengthening or capacity building. This phraseology, as mentioned above, implies that it may require Member States to improve their data collection capabilities of health information systems, while certain other countries can develop intelligence capabilities.

Fourthly, quite contrary to the promise made by the INB Co-Chair, Mr. Roland Driece, it is not clear and transparent why the phraseology of “shared but differentiated responsibilities” is used in the working draft. The call by the developing countries was to include CBDR.

It was told in the meeting that the INB Bureau met more than 22 times in developing this draft. A few delegates from developing countries told TWN that there was tremendous pressure on the INB Bureau to not include the phrase “common but differentiated responsibilities”. On the question about a “tweaking of language” by the INB Bureau, a developed country delegate closely observing the Bureau process told TWN that the proposals from developing countries purportedly need polishing such that they can be on the negotiating table, whereas proposals from developed countries are largely acceptable to everyone.

A developing country delegation who shared concerns regarding the way the text is evolving remarked, “It’s not for the Bureau to do make text choices for us. If developed countries do not like the language, let them negotiate it in the floor, there is no need for pressurize the Bureau to alter the language”.

According to several delegates such as Bangladesh, Namibia and the Philippines, the working draft is not a negotiating document yet and there cannot be any deletions or exclusions from the text at this stage. 

- Third World Network