Privatisation and Economic and Social Rights

Privatisation is an ever-more dominant model of economic and social rights (ESR) realisation. 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 privatisation in ESR scholarship and practice, resulting in a significant lacuna from both a normative and an empirical perspective. This gap is perhaps most worrying in relation to the work of those international bodies mandated with interpreting and applying the economic and social rights standards under international law. Taking as its starting point the delineation of ESR obligations in terms of the tripartite typology of respect, protect and fulfil outlined by the Committee on Economic, Social and Cultural Rights, this chapter considers how that framework (and the human rights monitoring bodies which employ it in their work) addresses privatisation from an ESR perspective. Highlighting an excessive emphasis on the obligation to protect to the exclusion of other relevant levels of obligation, the author argues that such an approach is reflective of a failure to conceptualise privatisation effectively – 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 privatisation