Table Of ContentHuman Rights or Global Capitalism
PENNSYLVANIASTUDIESINHUMANRIGHTS
BurtB.Lockwood,Jr.,SeriesEditor
Acompletelistofbooksintheseriesisavailablefromthepublisher
Human Rights
or Global Capitalism
The Limits of Privatization
Manfred Nowak
UNIVERSITY OF PENNSYLVANIA PRESS
PHILADELPHIA
Copyright(cid:2)2017UniversityofPennsylvaniaPress
Allrightsreserved.Exceptforbriefquotationsusedforpurposesofrevieworscholarly
citation,noneofthisbookmaybereproducedinanyformbyanymeanswithout
writtenpermissionfromthepublisher.
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UniversityofPennsylvaniaPress
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C o n t e n t s
Introduction 1
PartI.HistoricalObservations 5
Chapter1.HistoryofHumanRights—ADialecticView 7
Chapter2.DidtheWestComplywiththeViennaCompromise? 41
PartII.PrivatizationandSelectedHumanRights 55
Chapter3.RighttoEducation 57
Chapter4.RighttoHealth 67
Chapter5.RighttoSocialSecurity 81
Chapter6.RighttoWater 99
Chapter7.RighttoPersonalLibertyandRightsofDetainees 118
Chapter8.RighttoPersonalSecurity 138
Conclusion:AHumanRightsBasedApproachtoPrivatization 165
ListofAbbreviations 179
Notes 183
Bibliography 223
Index 237
Acknowledgments 245
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Introduction
WhentheCommunistregimesinEasternEuropecollapsedin1989leading
to the end of the Cold War, the time seemed ripe for a new international
social order built upon pluralist democracy, the rule of law, and universal
human rights. The Vienna World Conference on Human Rights in 1993
solemnlyproclaimedtheuniversality,indivisibility,andinterdependenceof
allhumanrights.Butthiswindowofopportunityforcreatingamoreequal
andmoresecureworldorderremainedopenonlyforashortwhile.Rather
thancelebratingthevictoryofdemocracyoverautocracyandpoliticalfree-
domovertotalitarianrule,theWestseemedonlyconcernedaboutcelebrat-
ing the victory of capitalism over communism. The neoliberal ideology of
deregulation,privatization,andminimizingtheroleofthestate,whichhad
dominatedpoliticsintheUnitedKingdomandtheUnitedStatesunderthe
conservativegovernmentsofMargaretThatcherandRonaldReaganduring
the 1980s, reinforced by the Washington Consensus of 1989 as a global
policy tobe promoted by theWorld Bank and theInternational Monetary
Fund,wasvigorouslyforceduponthenewlyemergingtransitionalsocieties
inCentral andEasternEuropeaswellasoneconomically weakandpoliti-
cally fragile states in Africa, Asia, and Latin America. Twenty-five years
later,weseetheresultsofglobalizationdrivenbyneoliberalmarketforces:
growing inequality, poverty, and global economic, food, financial, social,
and ecological crises. In addition, we witness increasing threats to our
global human security resulting from transnational organized crime and
terrorism,aproliferationofweaponsandarmedconflicts,fragilestatesand
globalclimatechange.
Much has been written about the pros and cons of the neoliberal eco-
nomic theory and its application in times of globalization, including
through privatization. But there are only a few studies that look at these
phenomenafromahumanrightsperspective.Ofthese,mostdealwith the
2 Introduction
relationshipbetweenbusinessandhumanrights,corporatesocialresponsi-
bilityoftransnationalcorporations,obligationsofthehomeandhoststates
to protect human beings against abuses by non-state actors, including the
corporatesector,aswellaswaysandmeansofholdingtransnationalcorpo-
rations directly accountable under international and domestic human
rightslaw.
Thepresentstudyontherelationshipbetweenprivatizationandhuman
rights is not primarily concerned about the consequences of privatization
and outsourcing of traditional public functions to the corporate sector,
including accountability for human rights abuses committed by non-state
actors. It rather looks at the permissibility of privatization under interna-
tional human rights law and the limits imposed on future privatization
measuresbyhumanrightsstandards,bothinthefieldofeconomic,social,
andculturalrightsandinthefieldofcivilandpoliticalrights.Theanalysis
of a selected number of human rights addresses the question of the limits
to future privatization policies deriving from the context of these specific
rights.
The present study challenges a widely held belief among human rights
scholars that human rights are “neutral” toward privatization. While it is
truethathumanrightsmaybefulfilledindifferenteconomicsystems,effec-
tive implementation of international human rights obligations requires
statesandtheinternationalcommunitytodevelop,maintain,andprogres-
sivelyimproveacertainlevelofpublicinfrastructureinordertoenableall
human beings to effectively enjoy and exercise all human rights. Political
rights and freedoms require states to establish the necessary democratic
infrastructureinordertoenablecitizenstoparticipateinpoliticaldecision-
making processes by means of free and fair elections, organizing political
parties, and expressing their political opinions in independent media and
public gatherings. Similarly, economic, social, and cultural rights demand
that states create the conditions to empower people to lift themselves out
of poverty through equal access to free educational facilities, affordable
healthcare,housing,food,water,socialinsurance,andotherserviceswhich
ensure social security and an adequate standard of living. Finally, civil
rights,theruleoflaw,andtherighttoaneffectiveremedyrequirestatesto
establishandmaintainasystemofadministrationofjusticewhichprovides
everyone with equal access to justice and protection against violence and
other threats to their personal security by professional law enforcement
structures. Not all these infrastructures and services have necessarily to be
Introduction 3
providedbypublicstatebodies.Ontheotherhand,far-reachingprivatiza-
tionofthesestructuresandserviceswillmakeitverydifficult,ifnotimpos-
sible,forstatestoliveuptotheirdomesticandinternationalhumanrights
obligations. The aim of the present study is to define, on the basis of a
thoroughanalysisofinternationalhumanrightslawinlightofitshistorical
genesis,thosecoregovernmentalfunctionswhich cannotbeoutsourcedto
the corporate sector because such privatization would entail a violation of
therespectivehumanrightsobligationsofstates.
Theresearchquestionunderlyingthisbookisapurelylegalone,namely
whether international human rights law provides limits to privatization in
certainfields,suchaseducation,healthcare,andsocialorpersonalsecurity.
TheeconomicandsocialfactsdescribedandanalyzedinChapter3relating
to the extent of privatization in these areas in selected countries, such as
the phenomenon of privatized prisons in the United States, UK, Australia,
NewZealand,Canada,Germany,andAustria;theprivatizationofwaterin
Chile, UK, Bolivia, Argentina, and South Africa; or the role of U.S.- and
UK-based private military and security companies in armed conflicts in
Iraq, Angola, or Sierra Leone, are purely illustrative to show to the reader
that my research question is not merely hypothetical. Far-reaching mea-
suresofprivatization,oftenunderthepressureoftheinternationalfinancial
institutions, bilateral and multilateral development agencies, or the Euro-
peanUnion,constituteanessentialelementofneoliberaleconomicpolicies,
underlined by the Washington Consensus and structural adjustment poli-
cies.Asalawyer,Iamnotenteringintoaneconomicdebateaboutthepros
and cons of Keynesian economic policies versus those developed by the
Chicago school of economics. I am fully aware that neoliberal economic
policiesintimesofglobalizationhaveledtorapideconomicgrowth,which,
for instance in China, has enabled millions of human beings to lift them-
selvesoutofpoverty,and whichhasprovidedmillionsofpeopleinAfrica,
Asia, andLatin Americawith accessto cleandrinking water.I amalso not
arguing out of principle against privatization. In many fields (industry;
banks;meansoftransport,including railways,airlines,airports,androads;
means of communication, including postal and telecommunication ser-
vices), privatization has led to more efficiency and has had no direct posi-
tive or negative impact on the enjoyment of human rights. The book only
analyzes some fields of privatization that have a direct impact on human
rights, namely the rights to education, health, social security, water, per-
sonal liberty, security, dignity, and integrity. In discussing these rights, I
