BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Conclusion Fundamental rights of corporations reflect social development. There may be different opinions about this issue: either we embrace it as another layer of protection of human rights; we critically see this regulation as an example of ‘trade-related market-friendly human rights’; or as an example of the degradation of human rights. 35 At the same time, it is still the primary role for states not only to respect but also to fulfil and protect human rights within their territories. If we agree with van derWalt that the horizontal effect of fundamental rights constitutes a revolution, it must also be remembered that history teaches us that many revolutions ended in dictatorships. If we want to avoid a ‘horizontal effect dictatorship’, in which ordinary laws and sub-constitutional principles do not matter, we should prevent the legal order from over-constitutionalisation. It has already been argued that constitutionalisation has its institutional level of judicial self-empowerment vis-à-vis other branches of government. The solution may lie in decisional minimalism, 36 i.e. practice, advocated by U.S. legal scholar Cass Sunstein , according to which judicial decisions should be created narrow and rather shallow, not deep and broad. In other words, courts should leave all the things unnecessary for reaching the final conclusion undecided. At the same time, a proper regard should be given to principles of private law, or countervailing public interests, in order to reach an adequate model of effects of constitutional rights in legal orders, which is neither robust like total constitutionalism, nor too limited.

35 KARAVIAS, M.: Corporate Obligations under International Law . Oxford: Oxford University Press, 2013, p. 181. 36 SUNSTEIN, C.: Foreword: Leaving Things Undecided. The Supreme Court 1995 Term. 110 Harvard Law Review , 1996, p. 7.

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