What does the UN Committee on Economic, Social and Cultural Rights’ new general comment say about states’ human rights obligations in relation to the privatisation of social services?

Recently the UN Committee on Economic, Social and Cultural Rights (CESCR) published its 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’. While the text focuses on the regulatory framework that states should put in place with regards to businesses, and deals with many important aspects that have been discussed elsewhere, such as tax avoidance, it also includes a less noted yet landmark section on the relationship between privatisation of essential services, such as health and education, and human rights. This is the first time CESCR has been so precise about this growing area of concern that has become crucial for the realisation of human rights, and remains highly contested. 

There are two main paragraphs in the general comment that directly relate to what is referred to as ‘the role and impact of private actors in traditionally public sectors’ (paras 21 and 22). Such level of detail on this topic is reflective of the fast-rising challenges brought about by privatisation of social services. The Global Initiative for Economic, Social and Cultural Rights, the Right to Education Initiative, and many other global and national organisations have brought reports on the impact of privatisation of education in 14 countries to different treaty bodies (including to CESCR) since September 2014. In this period, UN treaty bodies have published close to 30 concluding observations making recommendations on the issue, while the UN Special Rapporteur on the right to education has dedicated three reports to the topic, which altogether have provided the basis for the General Comment 24.

Paragraphs 21 and 22 of the general comment address two key questions related to privatisation that need to be read carefully and are discussed in turn. This blog post first reviews the conditions and regulations applicable to private actors in the delivery of social services, and then interrogates whether, according to General Comment 24, states can privatise the delivery of essential services at all.

What regulations must states put in place when private actors are involved in the delivery of essential services?

Paragraphs 21 and 22 of General Comment 24 lay out the human rights conditions which the involvement of private actors in the delivery of essential services should not undermine. These conditions are based on a position that: ‘states retain at all times the obligation to regulate private actors’, and specifically that they should put in place ‘strict regulations’ for private providers delivering social services. Accordingly, states must put in place the adequate regulations so that private actors delivering social services meet the following requirements:

1. ‘Public service obligations’: this notion, which was included in the recent Francophone Civil Society Call against commercialisation of education, may be one of the most innovative requirements of the general comment. This is a potentially very powerful concept that may largely limit private participation in social service delivery by putting requirements for instance on access (non-selection) or regulation of fees.
2. ‘Affordability’: The text goes further this usual human rights requirement by specifying that: ‘the provision by private actors of goods and services essential for the enjoyment of Covenant rights should not lead the enjoyment of Covenant rights to be made conditional on the ability to pay’. The very important footnote 60 specifies that, in the case of primary education, education should not be affordable but free – which the CESCR bizarrely did not make more visible.
3. ‘Quality’: the text notes in particular that quality may not be sacrificed for profit, which is an important recognition of the challenges related to profit-making – which appear vividly for instance in the trend towards the commercialisation of education.
4. Prevent ‘new forms of socio-economic segregation’: this confirms and crystallises the notion of socio-economic segregation, which emerged in the 2015 concluding observations on Chile, and detailed the scope of the prohibition of discrimination. It could be transformational, including through litigation.
5. ‘Accountability': which covers procedural conditions, including: ‘the right of individuals to participate in assessing the adequacy of the provision of such goods and services’ and the requirement to regularly assess the privately provided services ‘in order to meet the changing needs of the public and are adapted to those needs’ – although without giving much details.

These elements provide a strong foundation to set a regulatory framework addressing private actors in the delivery of social services. However, they do not in themselves set limitations to the involvement of private actors. If these regulatory requirements are read alone, provided that these regulations are respected, it may be interpreted that a state could fully outsource the delivery of social services.

Can states privatise the delivery of essential services?

CESCR’s General Comment 24 recalls in paragraph 21 the classical position of international law: ‘Privatisation 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 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 mobilise resources for the delivery of services essential for the realisation 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’. 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. (For more on the relationship between the Committee’s work on privatisation and the obligation to fulfil both in the context of General Comment 24 and more broadly, see A. Nolan, Privatisation and Economic and Social Rights.)

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.

Sylvain Aubry is currently working as a research and legal adviser with the Global Initiative for Economic, Social and Cultural rights, where he’s been coordinating research and advocacy on human rights and the role of the state in the delivery of essential services with the organisation since 2014, focusing in particular on privatisation in education and human rights. He has coordinated research in 15 countries as well as engagement with states, international organisations, and UN mechanisms. He has previously carried out research, capacity building and advocacy for various organisations, including Amnesty International, the Right to Education Initiative, FIAN International, ActionAid, and ESCR-Net, working on economic, social and cultural rights for the past 8 years. Sylvain holds an LLM in international human rights law from the University of Essex and a Diploma in political sciences and international relations from Sciences Po Aix.

Sylvain is currently based in Nairobi, Kenya.

This blog originally appeared in two parts (part 1 and part 2) on the Oxford Human Rights Hub and has been cross-posted with permission.