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Document Type

Article

Publication Date

Winter 2016

Publication Citation

23 Indiana Journal of Global Legal Studies 143 (2016)

Abstract

At the heart of international law lies a central tension. On the one hand, the fundamental rights recognized in international treaties protect the fundamental interests of individuals, obligating all actors who can affect these rights. One the other hand, international law has often been conceived of as a system in which the only legitimate actors are states. In turn, only states can be bound by the fundamental rights obligations in international treaties. To address this tension, two models have been proposed. The first is an "Indirect duty" approach, whereby the state remains the primary duty-bearer and must itself "create" the obligations of nonstate actors. The second is an "expanded state" approach, which attempts to extend the idea of what falls within the domain of the state and includes the corporate sphere therein. I argue that neither succeeds. I contend rather that the state should be conceptualized as having a "wholly public" character, whilst corporations are "partially public, partially private" entities. Fundamental rights push us to recognize that the state can no longer be conceptualized as the sole preserve of concerns that have traditionally been classified as "public," though it retains a distinct role from entities that have a private dimension. The "public" dimension of private actors such as corporations gives good reason to hold that they have direct fundamental-rights obligations under international law. That conclusion helps to chart the contours of a revised conception of statehood fit for the twenty-first century, where multiple overlapping forms of power impact upon the fundamental interests of individuals.

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