As of April 15, the coronavirus pandemic has infected over 2 million persons and caused close to 130,000 deaths worldwide. These figures have roughly doubled in 13 days, with trends suggesting that the number of persons infected will keep rising steadily, even with health systems’ attempts to ‘flatten the curve.’ Undoubtedly, the novel coronavirus is emerging as one of the worst pandemics in modern history by exposing vulnerabilities in the global health system and its ability to deal with emerging viruses––not only in terms of physical and human resources, but also in terms of the legal and normative frameworks necessary to deal with the transnational challenges it poses.
The interconnected, transnational nature of pandemics raises several pertinent questions. Most common ones relate to the imputation of responsibility for the crisis. Many have been vigorously arguing that China should be held responsible for recklessly pursuing hazardous activities and causing foreseeable harm to others. In a similar vein, there are concerns about some nations not taking adequate measures to protect their citizens, hereinafter the ‘first line of questioning.’
More immediate and relevant, however, is a ‘second line of questioning,’ which revolves around ways to ensure global equity and apply the principle of international solidarity to the preservation of human life, especially in developing economies that are already stretched for financial, human and technological resources. This will only be further complicated when the highly sought-for cure for coronavirus is finally discovered. It is perhaps no surprise that out of the 78 confirmed candidates currently developing a vaccine, 36 are in North America, 14 in Europe and China, and 14 in Asia and Australia. How these vaccines, most of which are developed by private companies, will reach those who need it the most in Africa, South America––and even the relatively less developed economies of Asia––is a conundrum that is as much ethical as it is legal.
This is where international law and norms chime in to address challenges that overwhelm national boundaries: the onset of this outbreak demands a review and reorientation of existing responsibility frameworks. From the perspective of public health, the 2005 International Health Regulations (IHR) seek to create a system of surveillance and notification of epidemic-prone diseases. From a human rights perspective, states are tasked with ensuring that their citizens attain the highest degree of health; thus they are obligated to prevent, treat and control outbreaks to the highest degree possible. While the former creates a web of obligations to other nations (international obligations), the latter creates obligations towards one’s own citizens (domestic obligations with limited international supervision and support through emerging frameworks like the Responsibility to Protect, or R2P).
Pitfalls of the Extant State Responsibility Framework
When read alongside Article 2 of Draft Articles on Responsibility of States for Internationally Wrongful Acts, this means that a state can be held liable if it acts or does not act in a way that violates an obligation cast upon it. Thus, China might be held responsible if it explicitly acted against the IHR. Similarly, a state that refuses to act in a manner necessary (and not expedient) to protect its citizens and treat its infected population can be subjected to sanctions on absolute sovereignty under the R2P regime. Thus, the extant framework deals with the only first line of questioning and that, too, imperfectly.
What if China were to be held responsible for the outbreak? Does a single nation have the power to make a significant difference in controlling a pandemic of this scale without cooperation from other states, multilateral organizations, civil society etc.? Such massive responsibility could never be imputed to a single nation, or even a single cause. Pandemics and the evolution of viruses are impacted by a multiplicity of factors, including climate change, manual errors, and even bad governance (e.g. the Ebola virus being exacerbated in West Africa due to the IMF’s stringent and short-sighted structural adjustments). Singular and direct attribution is neither possible nor particularly useful in a pandemic. A traditional and negative conception of responsibility works for identifiable and proximate harm, but does nothing to resolve the shared responsibilities of the global community.
The ongoing COVID-19 situation necessitates a renovation of responsibility in international law––one that moves beyond redressing harms by forming equitable and synergistic global responses to global crises. Yet the only place where international law has made headway in this regard is in the battle against climate change.
Introducing Common But Differentiated Responsibility (CBDR) to Global Health
The 1992 United Nations Framework Convention on Climate Change formalized, for the first time, the essential compromise between the global North and South, wherein the richer industrialized nations agreed to undertake higher obligations to combat environmental challenges. This agreement was further developed into a system of caps on carbon emissions in the Kyoto Protocol. This is called the Common But Differentiated Responsibility (CBDR), which is now also finding applications beyond international environment law in various naval treaties and trade agreements.
The purpose of the CBDR in environment law is simple: to understand environmental protection as the common responsibility of all states. However, some states contributed more to environmental problems, placed greater pressure on resources, and overall had a higher capacity to adopt protection measures, which in turn demanded stricter obligations. Even though it is contested whether the principle is of customary law itself, it derives its force from general principles of law, including equity (instead of formal equality) and solidarity. While there could be multiple moral constructions for asymmetric responsibilities, at its core this law seeks to balance the scales when it comes to historical responsibility. Simply put: certain nations polluted earlier in the absence of regulation and enriched themselves economically, which means that they must now do relatively more to guard against the climate crisis.
Like the environment, public health is also a responsibility common to all states, not all of whom can be reasonably expected to make equal contributions. Cooperation between all states is therefore essential, as even a single weak link can cause catastrophic harm to the general public, much in the same way that one sick person might infect their entire community. Moreover, effective governance of global public health requires universal participation, and is made all the more crucial in a pandemic because of the arbitrarily boundary-crossing nature of a virus.
But while all states must necessarily respond to the crisis in some way, the degree of responsibility is variegated across states based on their respective needs and capacities. States with greater capacities to manage and control the crisis are thereby duty-bound to assist states that lack this capacity. States that are best placed to discharge the responsibility of tackling a crisis should assist those most in need, i.e. states that lack the resources needed to mitigate epidemic-risk, and not those states that are generally considered socio-economically backward. This allows for effective allocation of resources and capacities to its most optimal ends. In opposition, some theorists argue that culpability could be another basis of allocating differential responsibility. However, this argument suffers the same regressive and limiting outlook as current responsibility frameworks for wrongful acts by states, and falls at the anvil of diffusion of direct attribution in pandemic situations for all things done or omitted by a state.
Another important element to consider is the historical contribution to the very harm that is currently being grappled with, and the commensurate, undue enrichment that one party enjoys vis-à-vis the others. This is what makes CBDR not only relevant to equity but also the very principle of fairness. For certain health systems are more vulnerable, and some economies are more socio-economically volatile, because their states struggle with histories of colonialism and neo-colonialism. In fact, colonialism has been identified as a determinant of health, both distally as creating a socio-political context for adverse health outcomes for indigenous populations, and also proximally, by creating structures that produce unfavorable conditions. While investigations into this relation are scant, some emerging research highlights how malnutrition and ill health in Tanzania can be linked directly to capitalist underdevelopment of its economy. Several arguments have also been extended to prove that the IMF’s structural adjustments prioritized short-term macroeconomic objectives over resilience-building investments in public health. The result was a predictable hollowing-out of the flailing health sector.
In fact, just as researchers argue that western industrialization survived on the exploitation of natural resources from Asia and Sub-Saharan Africa, modern medicine also owes much to the developing world. It is proven that instituting ill-conceived medical services in Africa went hand-in-glove with turning Africa into an open-field of experimentation on human subjects. In fact, such unethical and unsafe testing was crucial to the development of medical science, including finding treatments for meningitis and HIV/AIDS. Even today, studies show that 90 percent of new drugs approved in the US in 2017 were tested at least in part outside of North America.
Claims have also been made that most milestone discoveries in modern science, including that of anticoagulant agents, owe their origins to the investigations and practice of traditional practitioners. Interestingly, R serpentina, a shrub that has been used since 1000 BC to treat everything from insect bites, febrile conditions, malaria, and abdominal pain, to dysentery, febrifuge, and even insanity, was named Rauwolfia after the German physician who popularized it after observing it in India. Studies like these prove a systematic translation of traditional knowledge into modern medicine, without much acknowledgement or reciprocal benefit-sharing. Why, then, would an historical enrichment that worked to the benefit of Western medicine not also impute a parallel historical responsibility to the economies it raided of its human dignity, economic efficiency, and traditional knowledge?
Global public health law, especially those regarding pandemics, thus needs a transformation in the way it views and distributes responsibility. A CBDR approach not only responds to the factual realities of the inequities present across the world, it also allows for swift coordinated action by the global community to help those most in need. This has immense value for human rights, but it is also in each state’s self-interest to efficiently combat threats posed by highly-infectious diseases that, if not nipped in the bud, could threaten their own human and national security.
Whereas the current framework only answers the first line of questioning, by applying CBDR, we have a resolution for the second line of questioning as well. In fact, with CBDR, it becomes clear that there is a duty placed on the developed world, or on any nation that has the capacity to help, to ensure availability of critical life-saving equipment and treatments to those nations that are in need of the same. They also have a greater responsibility towards contributing resources to accelerating research into the coronavirus, finding a treatment, and building long-term resilience, compared to others. The argument for this greater responsibility can be based on anything––greater capacity, relatively lesser need, culpability, or even historical enrichment. CBDR establishes the fact of this asymmetric responsibility in law, but the institutional mechanisms and processes for ensuring equitable distribution and allocation of resources have to abide by the normative frameworks of public health ethics.
The novel coronavirus is an opportune moment for a broader push towards the acceptance of CBDR as a norm in public health law. It requires coordinated action by those in a position to assist. Adapting this norm into formal legal structures through a consultative process should be a long-term goal, but for immediate action, institutional mechanisms under the WHO and the vaccine alliances in civil society must be used to demand more from the developed world, not because of their goodwill, but because of a moral and legal obligation to justice.
Abhinav Verma is a lawyer with a specialization in international law and a public policy professional for health systems in India.