Fundamental Rights and the Legal Obligations of Business

by David Bilchitz

Overview

Corporations can significantly affect the fundamental rights of individuals. This book investigates how to determine the substantive content of their obligations that emanate from these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent 'multi-factoral approach' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.

Product Details

ISBN-13:	9781108815314
Publisher:	Cambridge University Press
Publication date:	04/06/2023
Series:	Cambridge Studies in Constitutional Law
Pages:	521
Product dimensions:	6.00(w) x 9.00(h) x 1.05(d)

About the Author

David Bilchitz is Professor of Fundamental Rights and Constitutional Law, University of Johannesburg, South Africa and Professor of Law, University of Reading, United Kingdom. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law. He is a member of the Academy of Science of South Africa and Vice-President of the International Association of Constitutional Law. He is the author of Poverty and Fundamental Rights: the Justification and Enforcement of Socio-Economic Rights (2007) and has published extensively in the area of business and human rights.

Table of Contents

1. The Nature and Purpose of the Corporation in Law; Part I: Legal Doctrinal Models for Addressing the Substantive Obligations of Non-State Actors for Fundamental Rights: 2. The State Duty to Protect Model; 3. The Indirect Application Model; 4. The Expanding the State Model; 5. The Direct Obligations Model; Part II: Towards a Multi-Factoral Model for Determining the Substantive Content of Corporate Obligations: 6. The Justification for and Contours of a Multi-Factoral Approach; 7. A Balancing Act – Proportionality in the Corporate Sphere; 8: The Multi-Factoral Model and Positive Obligations for Corporations; Part III: The Institutional Implications of the Multi-Factoral Model; 9: Embedding the Multi-Factoral Model in Corporations: The Role of Corporate Law; 10: Corporate Obligations in a Global World: The Role of International Mechanisms.

Editorial Reviews

'A deeply thoughtful and powerful argument is made in this book that corporations do have legal obligations for their human rights impacts and that decision-makers should act on this. It draws on the author's profound conceptual knowledge and innovative reasoning to offer persuasive and insightful approaches to these important issues. A pleasure to read.' Robert McCorquodale, University of Nottingham

‘Bilchitz brilliantly weaves theory and reality into a compelling assessment of corporate obligations for fundamental rights. This nuanced and comprehensive coalescence of law and theory on corporate obligations for fundamental rights is set to be the new epicentre around which the business and human rights discourse will oscillate for decades to come.’ Bonita Meyersfeld, Professor at Wits Law School in Johannesburg, South Africa

‘This is a highly timely and important contribution to the debate about the human rights obligations owed by companies. Hitherto, relatively little has been said about how we are to determine those obligations in law. This book fills that gap admirably. Covering a wide range of relevant issues, David Bilchitz offers us a deeply reasoned way forward. The book is a road map of how to reform the law to allow for greater human rights accountability for corporations. It is bound to provoke debate for a long time to come and to stimulate reform ideas. A magisterial effort.’ Peter Muchlinski, Emeritus Professor of Commercial Law, The School of Oriental and African Studies, University of London

‘This book offers an original ‘multi-factoral’ analytical model to determine contours of the fundamental rights obligations of corporations and proposes ways to operationalize these obligations at national and international levels. Bilchitz’s analysis not only fills gaps but also challenges several dominant narratives in the business and human rights field.’ Surya Deva, Professor, Macquarie Law School, Sydney

From the Publisher