Business and Human Rights: Key Issues for Legal Theory

Abstract

Just like the fight against discrimination or other injustice in its time, the sphere ofbusiness and human rights goes through the same stages: the experience of injustice is accumulated –a demand for release from the problem is formed, a demand for a more perfect reality – a requestfor new regulation arises.The article discusses the key issues for the theory of law, conditioned by the formation of thisnew reality. The starting point for consideration is the question of business as a direct addressee ofhuman rights requirements, that is, the operation of human rights without mediation by the state,since one of the defining reasons for the emergence of public expectations, embodied in the conceptof business and human rights, was the inability or in some cases of deliberate unwillingness of thestate to ensure corporate respect for human rights. This, in turn, raises the question of the powerinfluence of business on human rights and the need to revise the concept according to which privateactors in their relations are equal. The imperious nature of the influence of business also means thatthere is a revision of the social contract, the parties to which were previously considered society andthe state, and therefore the need to legitimize such power of business, substantive and procedural. Even in a situation where the state exercises effective control over the business operations, therequirement of legitimation is relevant, since there is a space free from state legal regulation. Objectively,the state cannot (and should not) regulate all aspects of the functioning of economic entities; thespace for self-regulation always remains. Business, by understanding its internal processes, is betterable to identify risks to human rights and minimize them. The state can only react to the violationof human rights that has occurred.The demand for business to fulfill its human rights obligations is particularly heightened ina situation where government control over its activities is absent or ineffective. Such situations arepossible in the case of a weak nature of state power or its inconsistent policy in the field of humanrights (in particular, investment projects may not be assessed by the state in terms of their impacton human rights) or in a situation of an undemocratic political regime, when the state itself violateshuman rights. and business is directly or indirectly involved in such violations. It is also possible thatthe state does not have sufficient leverage over business. Transnational corporations are a classicexample of this situation. The lack of effective state control can also be explained by the oligarchicstructure of the economy.Accordingly, the concept of business and human rights, being a response to modern challenges of“unfair social experience”, forces us to reconsider the classical views on the addressees of human rightsdemands, the mechanism of operation of the rule of law, the requirements of which should applyto private actors and, in general, to reconsider the social contract taking into account the significantimpact that business has on the organization of life in modern society.