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  • 4 - The Expanding the State Model

  • from Part I - Legal Doctrinal Models for Addressing the Substantive Obligations of Non-State Actors for Fundamental Rights
  • David Bilchitz, University of Johannesburg
  • Book:
    Fundamental Rights and the Legal Obligations of Business
    Published online:
    29 October 2021
    Print publication:
    11 November 2021, pp 135-174

  • Summary

    This chapter considers the ‘expanding the state model’ which limits the obligations flowing from fundamental rights to the state and only imposes obligations on non-state actors if they are, in some sense, state-like. This model fundamentally raises the question of what constitutes part of the state and, in so doing, provides an understanding of the determinants for having obligations. I argue the model focuses on the wrong issue: which agents are part of the state rather than the factors that are relevant to determining obligations. The chapter also examines the model as it is expressed through the case law of three jurisdictions – the United States, Germany and South Africa. In doing so, I explore the factors the courts employ to determine whether an entity or function is state-like and their implications for obligations. Those factors overlap with those identified in the other models – which, in turn suggests, the artificiality of confining the application of rights only to state actors.