5 - The Direct Obligations Model

Summary

This chapter examines the ‘direct obligations’ model which accepts that fundamental rights can impose legally binding obligations upon non-state actors. After briefly outlining the contours of this model, and its justification, I consider an important challenge, namely, whether recognising the obligations of non-state actors entails they have fundamental rights. At the international level, I consider the ‘sphere of influence’ approach and the ‘due diligence’ approach (enshrined in the UNGPs). I argue that the latter has an important normative gap at its core: understanding the impacts of a business on rights does not automatically translate into a conception of its obligations. The last part of this chapter considers two jurisdictions – South Africa and Colombia - and the principles they utilize to determine the direct obligations of non-state actors. Neither jurisdiction has articulated a clear legal analytical framework but what emerges is similar to the other models analysed and can form the building blocks of the multi-factoral approach developed in the following chapters.