Is there a Case for “Common but DifferentiatedResponsibility” in Global Health?
By Nishant Sirohi
Geneva Health Files, March 2023
Should all countries have equal responsibility to prepare, respond and fighthealth emergencies? This paper argues that it is critical for countries to have“common but differentiated responsibilities” (CBDR) to address global
health emergencies, like the one precipitated by the COVID-19 pandemic.
World Health Organisation (WHO) has mandated an Intergovernmental
Negotiating Body (INB) to develop a new legally binding instrument under
the WHO Constitution for pandemic prevention, preparedness and response now referred as a pandemic accord. While Member States are deliberating on
many issues, a proposal to incorporate the principle of CBDR into
the pandemic accord has brought on a contentious debate between developed
and developing countries. The principle of CBDR recognises historical andpresent inequalities between developed and developing countries andacknowledges differentiated responsibilities among countries to address
global challenges depending on their capacities.
This essay maps out the origin and the development of the principle of
CBDR in the international legal framework, and how this has featured in thecurrent negotiations. The essay also discusses the feasibility and possibilityof incorporating the principle of CBDR under the global health law, as
articulated by experts.

Image Credit: Photo by Karolina Grabowska, Pexels

1.

The principle of CBDR

The concept of CBDR formally evolved as a principle in international
environmental and climate change law after it was first embedded in the
United Nations Conference on Environment and Development (UNCED) 30
years ago in 1992. The UNCED, under Principle 7, states that “… In view ofthe different contributions to global environmental degradation, States havecommon but differentiated responsibilities ...”. The principle of CBDR wasthen operationalised in Article 3 of the 1992 United Nations Framework
Convention on Climate Change (UNFCCC), which entered into force in 1994
with near-universal membership. Article 3.1 of UNFCCC asserts “TheParties 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”.
In sum, the principle of CBDR requires that the States, while striking toachieve a common goal, undertake different obligations contingent on theirsocio-economic capacities and proportionate to their historicalcontribution. The principle was reaffirmed in the 1997 Kyoto Protocol, thefirst protocol of the UNFCCC.

However, the United States of America refused to ratify the protocol andsought to dilute the principle with the argument that large emerging
economies like Brazil, China and India had acquired equal capability but had
not been obliged to respond. Nevertheless, the principle was strongly
reiterated in several substantive provisions of the 2015 Paris Agreement, thesecond protocol to the UNFCCC, following tough negotiations between
developed and developing countries.
The incorporation of the principle of CBDR in the UNFCCC marked aturning point in global environmental governance, as for the first time, apolitical consensus was reached between developed and developing
countries.
Developed countries admitted their historical responsibilities, and agreed toassume higher obligations to combat environmental and climate change
challenges. The notion of CBDR, an outcome “from the application of equity
in general international law”, has emerged as a guiding principle ofinternational cooperation and solidarity and become the bedrock ofmost Multilateral Environmental Agreements. Although the principle of
CBDR has gone through considerable upheavals, the principle has
been progressively recognised in the international legal framework.
The principle of CBDR has two elements, i.e. “common responsibility” and“differentiated responsibility”. The notion of “common responsibility”
evolves from the concept of ‘common heritage’ and ‘common concern of
humankind’. Whereas the idea of “differentiated responsibility”, which
remains highly contested in global negotiations, aims to address the issue of
substantive equality. The philosophical rationale for the CBDR principle
rests in Aristotle’s idea of equity which provides that equals should be treatedequally and unequals unequally. Thus, the principle of CBDR most closely
relates to the theoretical concepts of ‘equality’, ‘equity’, ‘justice’ and‘fairness’.
The principle of CBDR has been adopted beyond international environmental
and climate change laws. It also features in the World Trade Organisation(WTO) Agreements; its essence is highlighted in the United Nations

Convention on the Law of Seas (UNCLOS) and the WHO Framework
Convention on Tobacco Control (Tobacco Convention).
In the WTO Agreements, the principle of CBDR is referred to in the “special
and differential treatment” provisions which confer developing countries
special rights, including flexibility of commitments, technical assistance etc.
In the UNCLOS, it is embodied in Articles 203 and 278, which obligesinternational organisations to give preferences in funding and otherassistance, and to facilitate cooperation on developing andtransferring marine technology to developing countries, respectively. The
principle of CBDR is also reflected in the Tobacco Convention, which under
several provisions (Articles 4-21, 22.1, 26.2, 26.3 and 26.4), set forward
common obligations and differential responsibilities, requiring developed
countries to provide financial and technical assistance for the economictransition of tobacco growers and workers in developing countries.

2.

CBDR in current Global Health Negotiations

The proposal to include the principle of CBDR in the new pandemic accord
has divided countries in the currently ongoing negotiations.
On July 13, 2022, the INB presented a working draft (A/INB/2/3) for thenegotiation between WHO Member States. The working draft under Article
4, paragraph 9 provided the principle of CBDR. However, the draft does not
use the phrase “common but differentiated responsibilities and respective
capabilities” as prescribed in the UNFCCC. Instead, it introduced a newterminology: “shared but differentiated responsibilities and respective
capabilities”. The INB working draft omitted the words “common” and“respective” from the principle of CBDR, creating profound implications fordeveloping countries. Article 4 paragraph 9 explains the principle of “shared
but differentiated responsibilities and respective capabilities” as follows:“Full consideration and prioritisation are required of the specific needs andspecial 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 adisproportionate or abnormal burden”.
During the second INB meeting held in July 2022, developing countries
asserted the necessity to incorporate the principle of CBDR in the working
draft to ensure global equity in health and to strengthen pandemic
preparedness and response. However, developed countries countered the
proposal on the ground that the CBDR is not a recognised principle in theinternational legal framework on health and that such objectives can beincorporated in the provisos of the new instrument without conscripting theprinciple of CBDR.
During the meeting, Monaco stated that the principle of CBDR in the draft
text “is already covered under the principles of equity and international
solidarity”. It asserted that the principle might not be appropriate in thecontext of pandemic governance. New Zealand cautioned against drawing
principles – like the concept of CBDR – from other agreements, as theywould be less relevant and helpful in the current context. United States
maintained that the principle of CBDR is “not a recognised principle inglobal health and strongly recommend we not import such potential decisive
concepts that are not proven effective in mobilising action”. The European
Union stated that incorporating the concept of CBDR in a lock, stock andbarrel approach is not convincing and needs reflection. The United Kingdom
argued that the CBDR approach would not steer the INB to consensus, andAustralia proposed the need to consider if the principle of CBDR isappropriate to be adopted in the context of an instrument on pandemic
preparedness and response.
On the other hand, Brazil, while referring to the pandemic experience,pointed to “how in some places, there are stockpiles of vaccines while inother places they don’t have a bare minimum to start vaccinating the
population. This gives a simple example and idea of what we mean when we
mention the issue of ‘shared but differentiatedresponsibilities’”. Paraguay asserted that it is important to “differentiate
between responsibilities for the pandemic and responsibilities for the
response to the pandemic”.

On the principle of CBDR, Bangladesh strongly affirmed that “in our
understanding, CBDR must be an integral component of the instrument – as amatter of fact, [it is] the most important element for the developing countries
like Bangladesh” and added that “if developed countries are not able toinclude CBDR because of their constraints, then developing countries like
Bangladesh would be constrained to implement [the] One Health Approach
because of their capacity and resource limitations”. Bangladesh had also
remarked that the principle of CBDR has been erroneously placed as “shared
but differentiated responsibilities and respective capabilities” and appealed
the INB Bureau to correct this.
Namibia, while endorsing the statement made by Kenya on behalf of theAfrican region, further stressed that “it believes achieving true equity would
require explicit acknowledgement of the principle of common but
differentiated responsibilities. We also emphasised 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”.
During the third INB meeting held in December 2022, the Members States
participating in the deliberations sought further examination of the principleof CBDR. For example, Brazil pointed out that the path to the One HealthApproach ran through the principle of CBDR. Similarly, Bangladesh
submitted that the approaches based on CBDR, and access and benefitsharing are critical to support the developing countries in raising requisite
funds and domestic resources for pandemic preparedness and response.
On February 1, 2023, the INB Bureau released the Zero Draft of the WHO
CA+ (A/INB/4/3) (Zero Draft) for consideration of the INB at its fourth
meeting and presented the principle of CBDR in a new language under
Article 4, paragraph 8. It is pertinent to note that, like the other provisions of
the Zero Draft, the provision on the principle of CBDR does not distinguishbetween developed and developing countries; instead, it assumes all WHO
members have equivalent economic competence and technological capacity.
Article 4, paragraph 8 states the principle of CBDR as follows:“All States are responsible for the health of their people, including pandemic
prevention, preparedness, response and recovery, and previous pandemics
have demonstrated that no one is safe until everyone is safe. Given that thehealth of all peoples is dependent on the fullest cooperation of individuals
and States, all Parties are bound by the obligations of the WHO CA+. Statesthat hold more resources relevant to pandemics, including pandemic-related
products and manufacturing capacity, should bear, where appropriate, acommensurate degree of differentiated responsibility with regard to global
pandemic prevention, preparedness, response and recovery. With the aim ofsupporting every Party to achieve the highest level of proven and sustained
capacity, full consideration and prioritization are required of the specificneeds and special circumstances of developing country Parties, especiallythose that (i) are particularly vulnerable to adverse effects of pandemics; (ii)do not have adequate capacities to respond to pandemics; and (iii)
potentially bear a disproportionately high burden”.
During the fourth INB meeting held in February 2023, while contesting theprinciple of CBDR in the pandemic accord, Japan asserted, “CBDR has noplace in the context of pandemic preparedness, prevention and response. Was
not COVID-19 a reminder to the whole world to work together?” The UnitedStates, continuing its opposition to the principle of CBDR, stated, “Thisconcept is not appropriate in the context of pandemic preparedness,prevention and response. We look forward to seeking common ground to best
ensure universal application, while also ensuring capacities are strengthened
so that countries can meet their obligations”. However, India extending
support to the principle of CBDR noted that “The principle of common but
differentiated responsibilities underpins the principles of equity in the draft.
The capabilities gap of certain Member States which are constrained bylimited resources needs to be effectively and equitably addressed”.

3.

CBDR in Global Health Law

The COVID-19 pandemic shattered health systems worldwide and caught the
global health governance bodies dangerously unprepared to prevent andrespond to the pandemic equitably. The health crisis precipitated by the
COVID-19 pandemic was further aggravated due to a lack of global
solidarity and cooperation that impacted the effectiveness of a coordinatedresponse globally. A key example of the disjointed global response to thepandemic is vaccine inequity: glaring disparities in global access anddistribution of the COVID-19 vaccines. The unprecedented health crisis thatappeared to have been precipitated by the pandemic was, only waiting tohappen. The pandemic simply shed light on the challenges and glaring gaps
in global health.
Global health governance and legal frameworks are a complex andmultifaceted field that require careful consideration of various factors,
including social determinants, economic inequalities and geopolitical power
dynamics. The principle of CBDR offers a critical approach to navigatingthese complexities in global health matters. The principle of CBDR would bea tool to address global health inequities by recognising different levels of
responsibility and capacity among countries to address common challenges
and promote a more collaborative and equitable approach to global healthgovernance. Therefore, it would be relevant in addressing shared global
health challenges.
In the ongoing INB negotiations for a new pandemic accord, member states
are deliberating on whether to include the principle of CBDR as afoundational principle to guide future actions for preparing and addressing
future health emergencies. While developing countries support the inclusionof the principle of the CBDR in the new global health accord, the developed
countries (as discussed above) oppose this principle. They have registered
their apprehensions which can be summed up as follows:
the concept of CBDR is a principle in environment and climatechange law, it is not familiar in global health law, andthe principle of CBDR would be ineffective in addressing publichealth emergencies.
3.1.
CBDR beyond the environment and climate change law, for“common responsibility”

The opponents of the concept of CBDR in global health argue that the
principle may not be applicable in the context of a pandemic, as it isprimarily intended to address climate change and environmental issues. Thisis a superficial argument, in our view.
The principle of CBDR is valued as a norm and has been put into practice inmultiple international instruments, beyond the environment and climatechange regime. For example, the principle of CBDR (as discussed earlier)can be found in the WTO Agreements in the form of “special and differential
treatment” provisions, its spirit is drawn in Articles 203 and 278 of the
UNCLOS, and most importantly, the principle of CBDR is also reflected in
global health law in the form of differential treatment obligations under
Article 4.6 (technical and financial assistance), Article 22.1 (cooperation tostrengthen capacity), Article 26.3 (funding) and Article 26.5(a) (use of public
and private financial and technical resources) of the Tobacco Convention.
The principle of CBDR recognises a common responsibility towards
addressing a challenge posed by a common concern to humankind. At an
event organized recently by Third World Network, Matiangai Sirleaf
asserted that “there is no reason why this responsibility [CBDR] should only
need to apply to environmental resources. The idea is that, where resources
are shared, like global public health … it is subject to common legal
interest”. Under the UNFCCC, environmental and climate change issues are
considered a common concern for all humanity, and thus, it recognises theshared responsibility of all States to address climate change. Similarly, likethe environment, public health – more specifically, health emergencies likethe COVID-19 pandemic – is a common concern. Therefore, all States are
responsible for cooperating in addressing the global health challenges for thecommon good. Moreover, the transboundary nature of the COVID-19
pandemic specified that preparedness and response to public healthemergencies are common responsibilities of all States. Thus, the principle of
CBDR strengthens the rule of “common responsibility” in global health law.
3.2.
CBDR for addressing health emergencies through differentiatedresponsibilities

A global health emergency declared by WHO constitutes a common threatthat triggers the WHO Member States’ duty to cooperate in addressing suchthreats for the common good. However, all WHO Member States do not have

equal capabilities and resources due to underlying economic andtechnological disparities; therefore, their contribution towards preparation
and response differs given their respective needs and capacities.
Lawrence O Gostin et al., in a 2021 report, revealed that about “two-thirdsof countries do not have IHR core health systems capacities to detect andalert the global community about novel outbreaks, including
communications, surveillance, and response”.
Though Article 44 of the 2005 International Health Regulations (IHR) legallybound Members States “to collaborate with each other, to the extent
possible” to strengthen global public health capacities. However, there is no
mechanism to ensure the provision’s implementation or hold the member
states accountable for their failure.
The WHO describes such a situation as a “common danger”. The WHOConstitution notes that “The achievement of any State in promotion andprotection of health is of value to all. Unequal development in different
countries in the promotion of health and control of disease, especiallycommunicable disease, is a common danger”.
While all member states are equally responsible for taking measures within
their capacities to prevent, mitigate and respond to health challenges, due topersisting economic and technological inequity, not all States have equal
resources and capabilities to respond to the crises in the same manner.
Therefore, there is undoubtedly a need for “differentiated responsibility” inglobal health law which prescribes differentiated obligations on the States,
proportional to their historical roles and/or financial capacity, following
the principle of equity.
Given the structural inequalities in the international system,
Sirleaf suggested that differentiated responsibility can be recognised
according to need, culpability and capacity. Differentiated responsibilities
based on need and capacity are more straightforward to justify in the case of
global health than culpability, but culpability is somewhat harder to establish
and is extremely relevant in addressing global health inequities, she added.

As Sirleaf has discussed, differentiated responsibilities based on need arelimited to the actual necessity of the receiving country. For example, since
public health is not equally distributed across all countries, some countries
desperately need financial and technical assistance to secure minimum corecapabilities to respond to health emergencies. Differentiated responsibilities
based on capability require that states with larger capacities and resources
assist and support those with less capability, to ensure an equitable responseto the pandemic. Differentiated responsibilities based on culpability primarily
require those who contributed to the harm should be responsible foraddressing the harm. Secondly, it requires tracing and assessing the
responsibility of the historical damages which impacted the capability ofcountries to build efficient health systems to respond to an epidemic or
pandemic diseases.
The very foundation of the new pandemic accord will be shaky without theinclusion and substantive integration of “differential responsibilities” – aprinciple that would strengthen substantive equity in the pandemic accord
and make the new regime equitable.
During a discussion on the principle of CBDR and its applicability to global
health law, Vicente Paulo Lu, elaborating on the necessity of CBDR in the
new pandemic accord to defend equity, emphasised that “the aim of having
equity fully reflected through a CBDR-RC type approach in the Pandemic
Treaty is to make sure that the obligations under the treaty:Will not be unduly burdensome for developing countries that might
have scarce resources
Is linked to enabling support being provided by developed countries todeveloping countries to ensure effective implementation
Is embedded within a framework of substantive equity, fairness andjustice that encourages effective implementation and cooperation”.
Colonialism in global health: recognition of historical wrongs

Historical injustices in global public health should be redressed and equity inthe new pandemic accord is upheld. Scholars have recognised colonialism as

a broader social determinant of health and documented how colonial
repression has contributed to inequalities that adversely impacted healthoutcomes in many developing countries. Moreover, it is also important to
identify and take into consideration the responsibilities of neo-colonialism
policies of international financial institutions that have affected public healthin the most vulnerable countries. The historical wrongs perpetuated during
the colonial period, on the one hand, led to the economic growth andaccumulation of wealth in the developed countries and on the other hand, it
severely restricted the capacity of developing and emerging economies tobuild their own infrastructure capacities. The integration of the principle of
CBDR in the global health framework is critical to amplifying the discourseon the responsibility of historical wrongs necessary for reconciling the pastand shaping the future.
Our view:

The principle of CBDR should be at the heart of the pandemic accord and in
the consideration of the amendments to the IHR. Developing countries andpartners who believe in equity in global health will continue to argue for the
principle of CBDR in the Pandemic Accord. The principle of CBDR could
ensure equity in global health and promote a fair and equitable burden
sharing approach to address global health challenges, which is in the longterm interest of the global community, including developed countries. It is
important to note that the implementation of the principle of CBDR requires
ongoing collaboration and coordination among countries, as well as a sharedcommitment to address the root causes of health disparities and promote
global health equity.