Privatising Human Rights: What Happens to the State's Human Rights Duties When Services are Privatised?
22 Pages Posted: 29 Oct 2013
Date Written: 2004
International human rights law has traditionally focused on the obligations of states in fulfilling human rights — including the fulfilment of economic and social rights — through the provision of social services. This article asks how that state-focused approach fits in a world where social services are frequently privatised or contracted out. It focuses on three examples of social service provision, namely, health, education and prisons, and inquires into the obligations of the state and the private operators in relation to these services. What were the state’s obligations in relation to these services under the traditional formulation of human rights law? Are the private operators capable of having human rights obligations? Can the obligations shift directly from the state to the private operator? How does the nature of the obligations change? This article concludes that private providers of social services have certain human rights obligations within their respective spheres of activity and influence, but those obligations have a different character than the state’s obligations. At the same time, the nature of the state’s obligations changes from a duty of action to one of supervision and, where necessary, intervention. The state retains an overarching obligation to guarantee the protection and realisation of the human rights of everyone under its jurisdiction, regardless of the character of the service provider.
Keywords: human rights, international human rights law, privatisation, privatization, services, outsource
JEL Classification: K33, L33, M14
Suggested Citation: Suggested Citation