3.1. Rights and responsibilities of governments towards citizens

Traditional social contract theories invoke a contractual arrangement to explain why governments came about, what citizens and governments explicitly and implicitly agree to in order for civil society to exist, and what each of their rights and responsibilities are under this contract. The theories “work at a ‘pre-legal’ level [and] try to establish rights and responsibilities that the legal system ought to recognise” (108).

In contrast with pre-enlightenment views of governance, traditional social contract theories started from the premise that citizens are free and equal (109-111). A common thread among contract theories is the view that citizens and governments enter into a hypothetical civil contract, whereby citizens agree to be subject to the rule of law, in exchange for the establishment of a society in which governments have obligations vis-à-vis their citizens - in particular to protect their rights (112-118). Governments violate the civil contract if they fall short of fulfilling their obligations.

Rawls, the most contemporary of traditional social contract theorists, used a social contract approach to set out the principles for global justice (116). The contract in the international context, according to Rawls, is between “peoples” which, through their representatives, agree about the basic rules of peaceful coexistence and a commitment to respect of rights and justice according to principles and norms of international law. This includes respect of treaties and undertakings, respect for human rights, and the recognition of a duty to assist other people living in unfavourable conditions. The introduction of the notion of human rights, as reflective of transnational legal-contractual obligations between governments and between governments and citizens can already be seen here.

Contemporary political theorists argue that modern-day reality demands that other parties - specifically organizations - are considered part of the social contract (108,119). Nussbaum, for example, points out how the power of multinational corporations in the global market has “eroded the power and autonomy of nations” (114). In many countries, corporate entities influence politics through lobbying and connections with political parties; organizations may hold monopolistic or oligopolistic positions and have the ability to influence markets and market prices.

This is particularly relevant in the context of health care, where corporate entities perform critical public functions, such as developing medicines that have the dual impact of improving the health of individuals and the health of a country's population, which have the potential to promote the economy and social cohesion. Additionally, R&D of essential medicines is to a significant extent determined by corporations and by large not-for-profit organizations that are often connected to industry stakeholders (such as the Bill and Melinda Gates Foundation). The complex connected process of medicine innovation is a good illustration of how multiple stakeholders are involved in the development of essential medicines and how collaboration is essential. It is clearly a context where it would seem reductionist to frame obligations under a social contract as exclusively or even primarily focused on the relationship between governments and individuals. Social contract theories must therefore also apply to organizations.

Commentators have also pointed out that social contract theory must go beyond the focus within corporate law on corporate obligations to shareholders, precisely because of the societal impact of corporate actions. Indeed, different sections of society should be seen as being party to the social contract (119-121). Contemporary social contract theory recognizes organizations’ broader obligations towards “society as a whole, including future generations” (119-122). Given the contemporary challenges of global poverty, diseases and transmissibility of pathogens beyond borders and increasing economic and social disparities, society as a whole is not limited to people living locally within the proximity of where the organization has its headquarters (119) or carries out its business. The recognition of broader obligations connects to the theme of sustainability that is central to the achievement of the Sustainable Development Goals and is a core component of the OMI.

When it comes to the issue of determining what it means to have obligations towards society, current-day contract theories emphasize the global, broad understanding of “society” (114,123-130). They emphasize global justice - that the social contract must be international in nature (131) - “parties are bargaining as individuals for a just global structure” (114). Pogge suggests it is “undeniable that … there is a global institutional order that importantly affects the options and incentives societies and their rulers face in their relationships with one another and even affects profoundly the domestic institutions and cultures of especially the smaller and weaker societies” (128,130). The moral foundation of global justice is founded on the idea that, although different societies are endowed with different natural resources, this form of natural resource lottery must not dictate a society's wealth and income (124,132-135; but see also 136).

The primary objective is to “optimize … the position of the least well off” (114; see also 128). The principle of global distributive justice asserts that there is a responsibility to reduce global poverty and take explicit steps to “prevent and mitigate the harms … continually caused for the world's poorest populations” (123,128 137). The OMI, with its emphasis on solidarity and sustainability, can be identified as part of a broader conversation to achieve this goal. This also connects to the broader WHO commitment towards universal health coverage and the partnerships established to achieve it (138,139).

3.2. Limitations of social contract theory

While the theoretical framework of social contract theories is compelling, its implementation is underdeveloped and not well defined. Social contract theories remain vague about how responsibilities can be enforced; for example, how organizations - specifically multinational pharmaceutical companies - can be required to honour their obligations towards society. Nussbaum recognizes that, in the global context, organizations cannot be compelled to fulfil their responsibilities; these responsibilities must remain thin and flexible, and would need to be revisited in the future (114).

While these contemporary social contract theories do not specify in detail how the theory applies to the pharmaceutical sector, it can be extrapolated that, like other organizations, pharmaceutical corporations have obligations under the social contract. They are expected to contribute to global justice by assisting individuals in all societies - particularly those who are weak, poor or marginalized - to achieve good health. It can be argued that one manner in which they might assist in achieving good health would mean assisting in increasing access to effective, novel, high-priced medicines - including for those infected by rare diseases.

Hence, within an international structure, international organizations, governments and corporations should be strongly encouraged to collaborate to promote an international and political order organized in such a way that the distribution of goods benefits those who are most disadvantaged. Because of their increasing power and influence, corporations - especially pharmaceutical companies - also have specific responsibilities in this international order, and should voluntarily become proactive in increasing access internationally. This is clearly also reflected in the growing discourse around corporate social responsibility and sustainability.

3.3. Ensuring good health: an obligation under social contract theories

Promoting good health is identified by some as a key obligation under social contract theories (104). Health care is mentioned by others as an essential part of social contract theories (105,106). This would include the duty for governments to ensure equitable access to health care for their citizens (105,140). Others have suggested that the development of public health policies that aim to promote health, prevent health problems and educate the public should be seen as part of the social contract obligations of governments (107). Obligations under social contract theory have also been identified in other areas of health care, such as in relation to health research, where citizens should arguably be given a more central role, leading to participant-led research (141).

While social contract theories have helped to build recognition of the existence of rights and responsibilities in the health context between governments and their citizens, and between multinational pharmaceutical companies and society globally, the discourse is largely silent³ on whether - and, if so, what - rights and responsibilities other stakeholders in the health sector, such as research institutions, would have in increasing access to effective, novel, high-priced medicines (107,140,142).

In other words, several social contract theories emphasize broad obligations to promote equitable health care, but they are largely silent about how that can be fulfilled in practice. There is also not much detailed discussion in social contract theories of the specific obligations of the pharmaceutical industry in this context.

Footnotes

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While some social contract theorists have explored rights and obligations in respect of patients, for example, the focus is very different from determining what the rights and obligations of these stakeholders would be in increasing access to effective, novel, high-priced medicines. In the context of patients, scholars primarily focus on the need to ensure patient participation in research.