The new UN General Comment on Business and Human Rights, Part 1: What regulations must states put in place when private actors are involved in 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”. 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 the Committee has been so precise about this growing area of concern that has become crucial for the realisation of human rights, and remains highly contested.

The two paragraphs in the General Comment address two key questions related to privatisation

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 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 the 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 a basis for the General Comment 24.

The two paragraphs in the General Comment address two key questions related to privatisation that need to be read carefully, and will be discussed in a two-part post. This first part reviews the conditions and regulations applicable to private actors in the delivery of social services, and the second part will interrogate whether, according to General Comment 24, States can privatise the delivery of essential services at all.

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” (emphasis added). 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. The second part of this blog will argue that, importantly, the CESCR also started shaping an obligation for States to fulfil (provide) in most circumstances a certain level of quality public services, which allows for a more detailed and comprehensive understanding of the role of private actors and paves the way for more detailed guidance such as the forthcoming Human Rights Guiding Principles on States’ obligations regarding the delivery of education by public and private schools.