Fundamental Rights and the Legal Obligations of Business. By David Bilchitz. [Cambridge University Press, 2022. xxii + 499 pp. Hardback £110.00. ISBN 978-1-108-84194-8.]

Abstract

Following the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, and subsequent attempts at the national and international level to enforce human rights in the commercial sphere (like the UK’s Modern Slavery Act 2015), there has been renewed scholarly interest in the human rights duties of corporations. “Business and human rights” is a difficult area of inquiry: making sound policy proposals requires attention to the intersection of human rights, corporate law, tort, both private and public international law, and other legal fields besides. Moreover, it frequently requires a theory of these fields, including a theory about which field should be deployed to solve certain problems under certain conditions. Depending on the author’s aims, it can also require engagement with economics and with difficult philosophical issues concerning the nature of the corporation. This call for interdisciplinarity is what makes “business and human rights” an exciting field of study, but the difficulty of answering that call has created a body of scholarship that sometimes feels superficial or theoretically thin. In this regard, David Bilchitz is exceptional. Bilchitz is one of the leading figures in the field; he has been working on tricky pieces of the business and human rights puzzle for a long time. He has captured the depth and breadth of his knowledge in his latest book, Fundamental Rights and the Legal Obligations of Business, which is stunning in its sophisticated coverage of numerous legal fields as well as some associated areas of philosophy. The book is divided into three parts. After an initial chapter on the nature and purpose of the corporation (to which I return below), Part I describes and critiques various models of legal reasoning that courts have adopted to address human rights infringements by corporations. Most of the chapters in this part describe models which assume that human rights obligations bind only the state. Chapter 2 focuses on the state’s duty under international law to protect a person’s human rights from violation by a third party (say, another individual or a corporation). Chapter 3 describes the “indirect application model” that exists in some national legal systems. It is the domestic analogue of the international law duty to protect: once again, human rights obligations fall on states only, requiring them to enact legislation and develop their common law with a view to preventing human rights violations by corporate actors. Chapter 4 describes what Bilchitz calls the “expanding the state” model, which redraws the boundaries of the state to extend human rights obligations to at least some kinds of state-like corporations. The overriding critique of all three foregoing models is that they wrongly suppose that corporations themselves bear no human rights obligations, and so depend on circuitous reasoning to implicate the state in a corporation’s human rights abuses. By closely analysing case law which adopts these models, Bilchitz convincingly shows that courts cannot (and, in fact, do not) attribute the relevant obligations to the state without first having some view of what the state must protect people from – that is, a view about what corporations may not to do with respect to human rights. Thus, the courts which embrace these models implicitly and inevitably determine a corporation’s human rights duties while professing that such duties bind only the state. Building on these criticisms, Bilchitz offers his preferred model of reasoning in Chapter 5 – the “direct obligations model” – which explicitly Cambridge Law Journal, 82(1), March 2023, pp. 181–184 © The Authors, 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S000819732300003X