https://orcid.org/0000-0001-7440-6087
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ABSTRACT
It is now widely acknowledged that corporations significantly impact the fundamental rights of individuals; and so they should carry (negative, and possibly also positive) obligations with respect to those fundamental rights. Yet the literature has largely neglected the critical follow-up question: how do we determine the content of those obligations in particular situations? Bilchitz takes up that challenge in his magisterial new work, Fundamental Rights and the Legal Obligations of Business, which is the subject of this review essay. His key contribution is providing a structured process of reasoning to guide decision-makers in concrete contexts. This reasoning process involves the identification of various normative factors to guide the determination of corporate obligations which then must be balanced according to two structured tests for positive and negative obligations respectively. This paper summarises Bilchitz’s core arguments in some detail, attempts to distil the ‘heart’ of his strategic project, and then concludes by raising several critical points for discussion.
Acknowledgements
This review article was inspired by the author’s engagement with two events organised by the Oxford Business and Human Rights (OxBHR) Network. As such, it is fitting to thank the OxBHR team, the various panellists, and above all Professor Bilchitz.
Disclosure statement
The authors report there are no competing interests to declare.
Notes
1 David Bilchitz, Fundamental Rights and the Legal Obligations of Business (Cambridge University Press 2021).
2 See Peter Muchlinski’s endorsement and review in the description page for David Bilchitz’s book within the Cambridge University Press website <www.cambridge.org/core/what-we-publish/books>.
3 The two events, held on 16 February and 29 March 2022, were co-hosted by the Bonavero Institute of Human Rights, the Oxford Business and Human Rights Network, and the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). Recordings can be found on The Bonavero Institute’s website or YouTube channel.
4 Bilchitz (n 1) 5.
5 ibid 68–69.
6 ibid 62.
7 ibid 60–62.
8 United Nations Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework UN Doc HR/Pub/11/04 (16 June 2011).
9 Bilchitz (n 1) 65.
10 ibid 67.
11 Von Hannover v Germany (Third Section Chamber) (24 September 2004).
12 Council of Europe, ‘Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), as amended’ ETS 5, 1950.
13 (n 11) [58] cited in Bilchitz (n 1) 84.
14 Bilchitz (n 1) 85.
15 ibid 100–01.
16 ibid 219.
17 ibid 17.
18 ibid 457.
19 ibid 5.
20 ibid 220–21.
21 ibid 24.
22 ibid 248.
23 ibid 259.
24 ibid 283. See generally chapter 1.
25 ibid 49.
26 ibid 261.
27 ibid 267.
28 ibid 283.
29 ibid 285.
30 First ‘Oxford event’ (n 3).
31 Bilchitz (n 1) 293.
32 ibid 293.
33 ibid 294.
34 ibid 296.
35 ibid 333.
36 ibid 337
37 ibid 339.
38 ibid 339
39 ibid 412.
40 ibid 412.
41 ibid 5. He goes on: ‘Clearly, any answers that emerge will need to be supplemented with an approach to apportioning liability in large groups and supply chains’. What happens, for instance, if the corporation’s third tier subcontractor is the one polluting the river? This is clearly a vital project for taking Bilchitz’s work forward.
42 ibid 194.
43 ibid.
44 ibid 176.
45 The possible causes are specified in the Act, but within those bounds the company has considerable discretion. The discretion is exercised by a Corporate Social Responsibility Committee that the company is required to establish under the section.
46 Bilchitz (n 1) 226–27.
47 ibid 225.
48 ibid 225–26.
49 ibid 362.
50 ibid 362.
51 ibid 233.
52 ibid 270.
53 ibid 275.
54 ibid 292.
55 ibid 226.
Additional information
Notes on contributors
Selwyn Coles
Selwyn Coles is an MPhil candidate at the University of Oxford. A New Zealand-trained lawyer, he now works in a business and human rights consultancy based in London.