Eli Bukspan (Reichman University (The Interdisciplinary Center - Herzliya), Radzyner Law School; London School of Economics & Political Science (LSE) - LSE Law School) & Asa Kasher have posted Human Rights in the Private Sphere: Corporations First (University of Pennsylvania Journal of International Law, Vol. 40, No. 2, 2019) on SSRN. Here is the abstract:
The purpose of the article is to establish and theoretically justify a new “constitutional mindset” for a direct application of constitutional human rights in the private sector, based on moral arguments that are reinforced and illustrated by today’s democratic and social reality. Generally, constitutional human rights are viewed as part of public law and are to be applied in private law through the indirect application model; however, this doctrine has proven to be limited, implicit, and unsystematic. According to our view, moral ideals at the heart of a democratic regime hold the basis for individual direct reliance on constitutional human rights, regardless of whether the breaching entity is a government, corporation, or individual.
Moreover, the necessity of implementing the direct application model is increasingly evident in light of today’s reality, in which non-governmental bodies have acquired unprecedented economic and social power and influence. In light of this change, comparative and international discourse has increased the responsibility of the private sector to uphold constitutional human rights principles accordingly. The direct application model, as advocated in this article and that can be implied by the 2011 UN Guiding Principles on Business and Human Rights, suggests that states should expressively and actively address the governance gap of constitutional human rights in order to provide incentive for corporations to abide human rights obligations; this will provide tangible remedies for those injured by these violations and consequently uphold key democratic principles that define modern society.
