refrains from imposing specific obligations of conduct (except for the elementary but at the same time
vague obligation to take active steps towards the realization of Covenant rights75), and provided other
human rights norms are complied with (in particular, requirements of participation and
accountability), it should not matter whether the outcomes required are achieved by supporting
initiatives in the private sector or by public services. Indeed, that would seem to follow from the
professed neutrality of the Covenant vis-à-vis different conceptions of the role of the State in the
economy.76
Such a conclusion should be treated with caution, however. Privatization -- broadly understood as the
choice to ensure that private actors shall provide the services and deliver the goods required for the
enjoyment of social, economic and cultural rights, rather than such services or goods being provided
by the State -- may be problematic for three, analytically distinct reasons.77
a) The risk of exclusion
First, of course, there is the risk of exclusion. The provision by the private sector of services such as
healthcare, education, housing, potable water or electricity (both of which are conditions of adequate
housing78), may lead to deprive certain groups of the population from access to such services. This
may be the result of the imposition of users' fees, by private actors who act with a profit motive.79 It
can also be the consequence of the building of infrastructures or the design of products favoring the
high-end of the market -- for markets, we should never forget, are a form of plutocracy: they respond
to demand, as expressed by those with the highest purchasing power, rather than to the real needs of
people with low incomes, who do not have an equal ability to "vote" to shape the demand curve.80 The
reality of such exclusion may in part be hidden by the burden shifting on families : the unpaid work of
women may partly make up for the retreat of the State to provide services, and families can
accumulate debt to compensate for their lack of income.81 But such "solutions" worsen the gender gap
and they should be seen only, at best, as temporary stopgaps -- not as solutions.
b) Quality monitoring
means through which they should be attained, that States must commit the resources required for the implementation of such
public policies.
75
See Alston and Quinn, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic,
Social and Cultural Rights’, at 185 (stating that the Covenant obligations "can best be understood as hybrids between
obligations of result and obligations of conduct. They are obligations of result in the sense that states must match their
performance with their objective capabilities. They are loose obligations of conduct in the sense that states are obliged to take
active, though largely unspecified, steps toward their satisfaction. This hybrid mixture of obligation types is due to the fact
that the concept of "progressive achievement" mandates the existence of an ongoing process of development the adequacy of
which is loosely controlled by norms deduced from a state's objective capabilities").
76
See above, text corresponding to notes 19-20.
77
For fuller treatments of this issue, see Koen de Feyter & Felipe Gómez Isa (Eds), Privatisation and Human Rights in the
Age of Globalisation (Antwerp: Intersentia, 2005); and Manfred Nowak, Human Rights or Global Capitalism. The limits of
privatization (Univ. of Pennsylvania Press, 2016).
78
The "adequate house", in the view of the Committee on Economic, Social and Cultural Rights, is one that, in particular,
ensures access to "safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities" and is "in a
location which allows access to employment options, health-care services, schools, child-care centres and other social
facilities [in particular since] the temporal and financial costs of getting to and from the place of work can place excessive
demands upon the budgets of poor households" (General Comment 4, The right to adequate housing (Sixth session, 1991),
U.N. Doc. E/1992/23, annex III at 114 (1991), para. 8, (b) and (f).
79
See in this regard, inter alia, Ian Macpherson, Susan Robertson and Geoffrey Walford (eds.), Education, Privatization and
Social Justice: Case Studies from Africa, South Asia and South East Asia (Oxford, Symposium Books, 2014) (education); M.
Finger and J. Allouche, Water Privatization -- Trans-National Corporations and the Re-Regulation of the Water Industry
(London, Spon Press, 2002) (water); Karen Bakker, Privatizing Water: Governance Failure and the World’s Urban Water
Crisis (Cornell University Press, 2010) (same).
80
Tibor Scitovsky, The Joyless Economy. The Psychology of Human Satisfaction (New York and Oxford: Oxford University
Press, 1992), at 8.
81
In the area of housing, excessive borrowing by households has in effect become a substitute for redistributive social
policies and subsidies to support access to housing: see, on the links between the retreat of the State from the housing sector
and the 2008-2009 financial crisis, Report of the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living to the 10th session of the Human Rights Council (A/HRC/10/7) (4 Feb. 2009).
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