No abstract

In June 2014, the Human Rights Council passed a resolution establishing an inter-governmental working group to discuss a legally binding instrument relating to transnational corporations and other business enterprises. In this article, I outline four arguments for why such an instrument is desirable. Identifying the purpose of such a treaty is crucial in outlining a vision of what it should seek to achieve and in determining its content. The arguments indicate that a treaty is necessary to provide legal solutions to cure serious lacunae and ambiguities in the current framework of international law which have a serious negative impact upon the rights of individuals affected by corporate activities. The emphasis throughout is upon why a binding legal instrument is important, as opposed to softer forms of regulation such as the United Nations Guiding Principles on Business and Human Rights. The four arguments in turn provide the resources to respond to objections raised against the treaty and to reject an alternative, more restrictive proposal for a treaty that only addresses 'gross' human rights violations.

In June 2014, the Human Rights Council passed a resolution establishing an inter-governmental working group to discuss a legally binding instrument relating to transnational corporations and other business enterprises. In this article, I outline four arguments for why such an instrument is desirable. Identifying the purpose of such a treaty is crucial in outlining a vision of what it should seek to achieve and in determining its content. The arguments indicate that a treaty is necessary to provide legal solutions to cure serious lacunae and ambiguities in the current framework of international law which have a serious negative impact upon the rights of individuals affected by corporate activities. The emphasis throughout is upon why a binding legal instrument is important, as opposed to softer forms of regulation such as the United Nations Guiding Principles on Business and Human Rights. The four arguments in turn provide the resources to respond to objections raised against the treaty and to reject an alternative, more restrictive proposal for a treaty that only addresses 'gross' human rights violations.

This article deals with the question whether corporations should have obligations to take positive steps to contribute towards the realisation of fundamental rights. The article commences with a central objection against corporations having such obligations and an analysis of some of the assumptions underlying this objection. The second part of this article challenges some of these assumptions: first, I argue that the legal nature of the corporation implies that it is an entity that is both separate from and dependent upon the individuals underlying it. That understanding informs the idea that there are two central perspectives from which the purpose of the corporation can be understood: a societal perspective (the normative perspective that lawmakers should adopt) and the individual perspective of those investing in or managing a corporation. Understanding the different purposes underlying the corporate structure then provides the basis for two arguments for recognising that corporations should have positive obligations for the realisation of rights: an argument from the limits of private property and an argument from social benefit. This article develops an understanding of the corporation as an agent that is an integral part of society that is required to contribute towards the realisation of fundamental rights. It, however, does so in a distinctive manner: it remains an entity with a commercial focus that must seek to give expression to the interests of individuals underlying it. This article thus argues for a nuanced understanding of the role of the corporation that balances both individual and societal goals.

This article considers the legal personhood and dignity of non-human animals. It first argues that the concept of legal personhood can embrace all those who are capable of having rights or duties. Since the concept includes those who are rights-bearers, without necessarily being duty-bearers, it is necessary to investigate whether it is possible for animals to be rightsbearers within our law. It is argued that the traditional classification of animals as legal objects has already been challenged by the enactment of animal welfare legislation. Certain traditional justifications for such legislation cannot withstand scrutiny and it is shown that such legislation rests upon the recognition that animals have important interests in their own lives and so require legal protections in their own right. This provides the basis for recognising that they have certain rights within the law, and consequently, if we take the argument to its logical conclusion that they are natural persons rather than things. This conclusion can be reached through courts simply drawing out the implications of the existing legal regime in relation to animals. An alternative basis for restricting the category of legal personhood only to those who are members of the human species is often rooted in the notion that human beings have a special 'worth' or 'dignity' not possessed by other animals. The dignity claim is shown to be capable of two different interpretations: one that asserts the special value of human beings as a category and the other that asserts the special value of certain complex characteristics -such as rational agency -largely found only within the human species. both interpretations are shown to be flawed and, ultimately, provide no acceptable justification for recognising that only human beings are capable of having rights that must be respected. The notion of dignity, it is argued, can be developed to remove the arbitrary exclusion of nonhuman animals. The concept, as developed recently by Martha Nussbaum, embraces all those who have the capacity to flourish and can recognise the variable nature of the good for diverse beings. The adoption of the revised conception of dignity paves the way for the recognition of the legal personhood of animals. The final part of this article considers the possibilities for interpreting both the common law and constitutional provisions so as to recognise the dignity and personhood of animals. A key problem that is addressed is whether South African society is ready to embrace the full implications of this recognition. The legal concept of 'progressive realisation' of animal rights is proposed as offering the possibility of ensuring greater protections for animals through recognising their dignity and personhood whilst embracing a gradualist approach towards the full realisation of their rights, thus preventing a wholesale disjunction between the law and the attitudes of wider South African society.