Pharmaceutical corporations are centrally involved in the fight against Covid-19. In many cases, their research – often generously funded by states – has been of vital importance in the development of vaccines. Even where the research was conducted by a university (Oxford), the manufacture and supply of the vaccine has been conducted by a large corporation (AstraZeneca).  Given their enormous power over a life-saving intervention, do fundamental rights impose any legal obligations upon pharmaceutical corporations to make the vaccine accessible across the world?

Fundamental rights are rooted in a recognition of the dignity of individuals and that, accordingly, individuals are entitled to protection for their most foundational interests. To ensure such protection, agents have negative obligations not to harm rights as well as positive obligations actively to take steps to fulfil rights.

There is no reason, however, in the logic of fundamental rights why only states should be duty-bearers. Consider, a state oil refinery that is causing massive pollution and imperiling the rights to life, and health of individuals. Clear obligations arise here immediately to stop causing these harms and actively to address the plight of affected individuals. Now imagine that the oil refinery is run by a private corporation rather than the state – given the same harms are caused to fundamental rights, why should the private corporation lack any obligations?

If corporations have obligations, the question then arises of how to determine what these obligations are. This is the question at the heart of the new book I have written, titled Fundamental Rights and the Legal Obligations of Business (Cambridge University Press). In the book, I start by examining the main existing approaches to determining the obligations of corporations (and other non-state actors) in international law and constitutional law. These approaches, I argue, converge on a nascent ‘multifactoral’ approach to determining corporate obligations that I seek to justify, systematize, and develop. Such an approach requires identifying the main relevant factors involved in determining obligations but recognises that that no one factor alone is adequate to determine corporate obligations. Given the existence of multiple factors that pull in different directions, it is necessary to develop a structured reasoning process – such as proportionality – to arrive at final conclusions about obligations.

I will attempt to illustrate some elements of the theory I develop with reference to the the obligations of pharmaceutical companies in relation to the provision of the COVID-19 vaccine. What I say will of necessity – due to the limited scope of a blog entry – not be able to address all the nuances and complexities examined in the book.

The first set of factors I identify – interest, vulnerability and impact – are what I term beneficiary-orientated factors which relate to the rights-holder themselves. The starting point is to understand the interests affected – in the context of the vaccine, it is clear that those interests are the most serious and urgent that individuals can have and relate to their very survival and basic well-being. These interests are protected in domestic constitutions and international law by, for instance, the right to life and the right to health. Secondly, we need to specify the vulnerability of individuals to the exercise of corporate power – given that the manufacture and supply of vaccines are in the hands of pharmaceutical companies,  individuals remain extremely dependent on how they wield their power if they are to gain access to vaccines. We can thus, finally, reach the conclusion that the failure to provide vaccines can lead to severe impacts on individuals and society that include death, sickness, loss of livelihoods and the development of new variants.

A second set of factors – capacity, function, autonomy and other actors – I term agent-relative factors which relate to the agents who have obligations. Firstly, we need to understand the capacity of a company to impact on a right – clearly, pharmaceutical corporations have significant power through their decisions to affect the ability of individuals to access vaccines. Patents also effectively grant a company a monopoly for a limited period over the production of a certain vaccine – that significantly enhances its power.

Secondly, we need to understand whether a corporation has assumed a function – akin to one performed by the state – that has a significant ability to impact on fundamental rights. It is quite clear that pharmaceutical companies have chosen to enter into an industry that is not just like any other – it relates to public health that has massive social implications and in which most governments are intimately involved. Part of their ability to make significant profits lies in the fact that their products affect the most basic interests of individuals in life and health for which they are willing to expend significant resources.

Thirdly, autonomy is a factor which pulls in the opposite direction – corporations are themselves entitled to a sphere of autonomy in their operations and need not operate solely for the public benefit. Shareholders have economic purposes in setting up corporations and are entitled to achieve their economic goals through making profits on their investments.

In the context of positive obligations, a further factor relates to the role of other actors in a sector. Given there are multiple pharmaceutical companies producing vaccines, it would be fair to spread the burden of obligations across such companies. The role of the state is also vital in this area – it has significant positive obligations towards realizing individuals’ rights to life and health; yet, in the context of the vaccine, has generally lacked the capacity quickly to manufacture and supply vaccines themselves. State could use their financial abilities to buy the vaccine from pharmaceutical companies though state capacity in this regard will be variable across the world – many poor countries lack the ability to pay the high prices that are being charged by some manufacturers and, if they do, will compromise other essential services.

Taking all these factors together, what then are the obligations of pharmaceutical companies? I examine here three concrete courses of possible action (simplifying a more complex treatment in the book). The first is that fundamental rights require pharmaceutical corporations to provide the vaccine for free across the world. Whilst this option would enhance accessibility, it fails to place any weight on the autonomy rights of the corporation itself (and those underlying it), destroys incentives to produce better treatments and places the entire burden of provision on pharmaceutical companies themselves.

A second approach would be to recognise that fundamental rights place an obligation on corporations to sell vaccines at an affordable rate – which includes differential pricing according to the ability of a state to pay without compromising essential services. Recognising such an obligation would address the urgent interests of beneficiaries, place obligations on states to the extent they are capable of buying the vaccines, recognise the specific function of corporations in this sphere and require a reduction in the profits of pharmaceutical companies but not obliterate its ability to achieve economic goals.

Lastly, fundamental rights could impose obligations on pharmaceutical companies in respect of the manufacture and supply of drugs. This is entirely reasonable – given their capacity and that they exercise this function alone in most of the world, they must have the obligation to ensure the supply is able to meet the global demand. That entails not utilizing their existing patent rights to restrict manufacture and supply where they are unable to meet that demand. To ensure they meet their obligations in this regard, states should remove their patent protections and introduce a TRIPS-waiver in this context which can ensure all available manufacturing capacity is utilized.

Our legal systems need to evolve to take seriously the obligations flowing from fundamental rights for powerful corporations like pharmaceutical manufacturers. Doing so requires balancing a range of factors and recognizing the distinctive role of such corporations – neither being wholly private nor public entities.

David Bilchitz is a Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg and the University of Reading. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law. His book Fundamental Rights and the Legal Obligations of Business has just been published by Cambridge University press in November 2021. Readers of the blog can gain a 20% discount by entering the code FRLOB21 online at www.cambridge.org/9781108841948