Privatization and economic and social rights

Nolan, Aoife

Abstract

Privatization is an ever more dominant model of economic and social rights (ESR) realization. Contracting out, public-private partnerships, and other approaches by which the private sector takes responsibility for, or supports the state in, delivering ESR-related goods and services are being advanced aggressively at both the national and supranational levels, with international financial institutions playing an especially influential role. Thus far, however, there has been relatively little attention paid to privatization in ESR scholarship and practice, resulting in a significant lacuna from both a normative and an empirical perspective. This gap is perhaps most striking—and worrying—in relation to the work of those international bodies mandated with interpreting and applying the ESR standards under international law. Taking as its starting point the delineation of ESR obligations in terms of the tripartite typology of respect, protect, and fulfill outlined by the United Nations Committee on Economic, Social and Cultural Rights, this article considers how that framework (and the human rights treaty-monitoring bodies which employ it in their work) addresses privatization from an ESR perspective. Highlighting an excessive emphasis on the obligation to protect to the exclusion of other relevant levels of obligation, the author asserts that such an approach is reflective of a failure to conceptualize privatization and the state’s role with regard to such properly—a failure that has very serious implications for the ability of the ESR framework as it stands to capture rights-harming actions in the context of privatization effectively. Arguing for a shift to the obligation to fulfill, the author contends this alternative approach would contribute significantly to the ability of ESR law as it stands to capture—and address—the full scope of state decision-making and (in)action at issue in situations of privatization. The article concludes with observations on recent moves by the Committee which though in the right direction leave much work to be done.

Citation

Nolan, A. (2018). Privatization and economic and social rights. Human Rights Quarterly, 40(4), 815-858. https://doi.org/10.1353/hrq.2018.0047

• Journal Article Type: Article
• Acceptance Date: Oct 9, 2017
• Publication Date: Nov 1, 2018
• Deposit Date: Mar 2, 2018
• Publicly Available Date: Nov 1, 2018
• Journal: Human Rights Quarterly
• Print ISSN: 0275-0392
• Electronic ISSN: 1085-794X
• Publisher: Johns Hopkins University Press
• Peer Reviewed: Peer Reviewed
• Volume: 40
• Issue: 4
• Pages: 815-858
• DOI: https://doi.org/10.1353/hrq.2018.0047
• Public URL: https://nottingham-repository.worktribe.com/output/886946
• Publisher URL: https://muse.jhu.edu/article/708639
• Additional Information: Copyright Johns Hopkins University Press