BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

While direct duties are imposed on states or public-law entities, at least indirectly, private corporations are impacted by fundamental rights. 17 One example concerns the situation of private law disputes decided by courts. Courts are usually bound to apply human rights and constitutionally consistent interpretation of law, which is the case of the Czech Republic, where the newly adopted Civil Code stipulates that ‘[e]ach provision of private law may be interpreted only in accordance with the Charter of Fundamental Rights and Freedoms and the constitutional order in general…’. 18 From this follows that if corporations act in a way contrary to human rights obligations, they cannot enforce their rights against another individual before the court. This un-justiciability of legal conduct which is contrary to human rights norms (e.g. unlawfully discriminates) is one example of duties imposed on private entities. Another case deals with the legislature that is also bound by fundamental rights in the process of law-making. 19 Laws thus express constitutional protection of individuals when they regulate their conduct. In private law, it may be achieved through setting of mandatory norms that cannot be superseded by an agreement of private entities to the contrary. There exists another option according to which corporations and other private entities may limit their conduct if it constitutes a violation of fundamental rights, which is by way of voluntary self-limitation. Here we may refer to the practice of voluntary codes of conduct, voluntarily adopted rules of corporate social responsibility, etc. Despite the fact that some documents, namely those issued by NGOs or even the UN, for instance, the document entitled UN Guiding Principles on Business and Human Rights, 20 advocate for relatively wide accountability in this field, it must be emphasized that codes of conduct of corporations are still voluntary soft-law instruments that depend on the consideration of whether their adoption may be economically beneficial for the corporation, e.g. due to positive publicity or comparative advantage against their competitors. From a broader perspective, I agree with Francesco Francioni’s claim that ‘the project of reconceptualising human rights obligations has become problematic’, 21 namely for the following reasons: firstly, direct application of human rights norms on private actors 17 For various theories and approaches see RÜFNER, W.: Grundrechtsadressaten. In: ISENSEE, J., KIRCHHOF, P. (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band IX. Allgemeine Grundrechtslehre . 3 rd ed., Heidelberg: C. F. Müller, 2011, p. 817. 18 Section 2 para 1 of the law Nr. 89/2012 Coll., Civil Code, quoted according to the official English translation by the Ministry of Justice of the Czech Republic, available at: http://obcanskyzakonik.justice. cz/images/pdf/Civil-Code.pdf [accessed 23 November 2017]. 19 RÜFNER, W.: Grundrechtsadressaten…, p. 826. 20 UNITEDNATIONSCOMMITTEEONHUMANRIGHTS: Guiding Principles on Business andHuman Rights. Implementing the United Nations ‘Protect, Respect and Remedy’ Framework. New York and Geneva: United Nations, 2011, developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises and finally endorsed by the Human Rights Council of the UN in its resolution 17/4 of 16 June 2011, available at: http://www.ohchr. org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Publications/GuidingPrinciplesBusinessHR_ EN.pdf&action=default&DefaultItemOpen=1 21 FRANCIONI, F.: The Role of the Home State in Ensuring Compliance with Human Rights by Private Military Companies. In: FRANCIONI, F., RONZITTI, N. (eds.): War by Contract. Human Rights, Humanitarian Law and Private Contractors. Oxford: Oxford University Press, 2011, p. 97.

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