E/C.12/GC/24
or resorting to political pressure. Therefore, whistle-blowers should be protected, 57 and
specialized mechanisms against corruption should be established, their independence
should be guaranteed and they should be sufficiently well resourced.
21.
The increased role and impact of private actors in traditionally public sectors, such
as the health or education sector, pose new challenges for States parties in complying with
their obligations under the Covenant. Privatization is not per se prohibited by the Covenant,
even in areas such as the provision of water or electricity, education or health care where
the role of the public sector has traditionally been strong. Private providers should, however,
be subject to strict regulations that impose on them so-called “public service obligations”:
in the provision of water or electricity, this may include requirements concerning
universality of coverage and continuity of service, pricing policies, quality requirements,
and user participation.58 Similarly, private health-care providers should be prohibited from
denying access to affordable and adequate services, treatments or information. For instance,
where health practitioners are allowed to invoke conscientious objection to refuse to
provide certain sexual and reproductive health services, including abortion, they should
refer the women or girls seeking such services to another practitioner within reasonable
geographical reach who is willing to provide such services. 59
22.
The Committee is particularly concerned that goods and services that are necessary
for the enjoyment of basic economic, social and cultural rights may become less affordable
as a result of such goods and services being provided by the private sector, or that quality
may be sacrificed for the sake of increasing profits. 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, which would
create new forms of socioeconomic segregation. The privatization of education illustrates
such a risk, where private educational institutions lead to high-quality education being
made a privilege affordable only to the wealthiest segments of society, or where such
institutions are insufficiently regulated, providing a form of education that does not meet
minimum educational standards while giving a convenient excuse for States parties not to
discharge their own duties towards the fulfilment of the right to education. 60 Nor should
privatization result in excluding certain groups that historically have been marginalized,
such as persons with disabilities. States thus retain at all times the obligation to regulate
private actors to ensure that the services they provide are accessible to all, are adequate, are
regularly assessed in order to meet the changing needs of the public and are adapted to
those needs. Since privatization of the delivery of goods or services essential to the
enjoyment of Covenant rights may result in a lack of accountability, measures should be
adopted to ensure the right of individuals to participate in assessing the adequacy of the
provision of such goods and services.
3.
Obligation to fulfil
23.
The obligation to fulfil requires States parties to take necessary steps, to the
maximum of their available resources, to facilitate and promote the enjoyment of Covenant
rights, and, in certain cases, to directly provide goods and services essential to such
enjoyment. Discharging such duties may require the mobilization of resources by the State,
57
58
59
60
See the conclusions attached to the resolution concerning decent work in global supply chains,
adopted by the General Conference of the International Labour Organization at its 105th session,
para. 16 (g).
See, for example, Human Rights Council resolution 15/9.
See the Committee’s general comment No. 22 (2016) on the right to sexual and reproductive health,
paras. 14, 42, 43 and 60.
See, for example, E/C.12/CHL/CO/4, para. 30; and A/69/402. Of course, important though it is,
appropriate regulation of the providers of educational services should respect academic freedom and
“the liberty of parents and, when applicable, legal guardians to choose for their children schools, other
than those established by the public authorities, which conform to such minimum educational
standards as may be laid down or approved by the State and to ensure the religious and moral
education of their children in conformity with their own convictions” (art. 13 (3) of the Covenant). As
regards primary education, States parties must ensure not only that it is affordable, but that it is free,
as required by arts. 13 (2) (a) and 14 of the Covenant.
7