The New UN General Comment And Privatisation, Part 2: Can States Entirely Privatise The Delivery Of Essential Services?
Two weeks ago, the UN Committee on Economic, Social and Cultural Rights (CESCR) published the much-awaited new General Comment 24 – an authoritative interpretation of international human rights law – on “State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities”. The text includes a landmark section on the relationship between privatisation of essential services, such as health and education, and human rights.
This two-part blog analyses the lessons from the general comment on this area. Part 1 detailed the regulatory conditions for the involvement of private actors in the delivery of essential services set by General Comment 24. This second part addresses the contentious question as to whether States can at all privatise essential services, and comments on the way forward.
Can States privatise the delivery of essential services?
The CESCR’s General Comment 24 recalls in paragraph 21 the classical position of international law, which is that: “Privatization is not per se prohibited by the Covenant even in areas such as the provision of water or electricity, education or healthcare where the role of the public sector has traditionally been strong”. While this may be read as opening the door for private sector involvement, it does not mean that privatisation can happen in any circumstance and that States do not have to provide basic services such as education. It simply recalls that under international law, privatisation may be problematic for the effects it has or the process used, but it is not prohibited in itself. The rest of the paragraphs goes on to analyse what those effects and processes required under human rights law are, as was discussed in the previous post.
The text, however, goes further by setting some level of obligations for States to deliver essential services. Other paragraphs of the General Comment show that that in most circumstances it would be unlikely that the full privatisation of essential services could ever be acceptable under human rights law, and that there is an assumption that quality public services are required to fulfil economic, social and cultural rights. In particular, paragraph 23 reads: “The obligation to fulfil requires States Parties […] in certain cases, to directly provide goods and services essential to such enjoyment.” Paragraph 20 similarly suggests that corruption “undermines a State’s ability to mobilize resources for the delivery of services essential for the realization of economic, social and cultural rights. It leads to discriminatory access to public services”. Paragraph 22 also mentions that privatisation of education should not be “a convenient excuse for States Parties not to discharge their own duties towards the fulfilment of the right to education”. (emphasis added) These sentences imply a form of legal obligation towards public service provision, in line with, for instance, General Comment 13 on the right to education (para.48). It becomes then clear that the CESCR is not suggesting that States can and should withdraw themselves from the delivery of essential services. The relationship between this position and the notion of privatisation, however, is not made explicit, which is unfortunate.
The way forward: Towards more precise Guiding Principles
As an interpretation of the International Covenant on Economic, Social and Cultural Rights, CESCR’s General Comment 24 reflects legally binding obligations for the 165 States that have ratified the Covenant, which States must follow as they consider the involvement of private actors in service delivery. By sketching solid basic human rights conditions for private participation in the delivery of social services, this new General Comment marks a turning point in directly tackling issues related to privatisation from a human rights perspective. Some of the conditions listed, however, need further unpacking, and the relationship between the obligation to fulfil (provide) essential services and privatisation need to be clarified.*
These gaps are not surprising since the General Comment addresses a wide range of issues related to business and human rights, with a regulatory approach, and it is probable that there wasn’t the scope to go into more detail on privatisation. The role of private actors in the delivery of social services is nonetheless a crucial issue that needs detailed human rights guidance. For this reason, several organisations have, since 2016, been facilitating the development of a more detailed set of expert Human Rights Guiding Principles on States’ obligations regarding the delivery of education by public and private schools. The draft of the Guiding Principles, which draws from consultations around the world, is thus far very much in line with the CESCR position, and the new CESCR General Comment will provide a useful basis to build on. The final Guiding Principles are expected to be adopted by a group of experts by mid-2018, and could help supplement CESCR’s General Comment 24, at least for the case of education, by articulating regulatory obligations (obligation to protect) with the obligation to provide public services (obligation to fulfil), and by unpacking the regulatory criteria that States should put in place for private schools.
*For more on the relationship between the Committee’s work on privatisation and the obligation to fulfil both in the context of General Comment No.24 and more broadly, see A. Nolan, ‘Privatisation and Economic and Social Rights’ (working paper on file with author).