A presentation by David Birchall, Senior Lecturer in Law at London South Bank University. This event is part of the Fundamental Rights Research Colloquium under the cluster “Fundamental Rights in the Global Political Economy" hosted by the Centre for Fundamental Rights.
This abstract is based on an early-stage work-in-progress and addresses the question of state authority over human rights. It focuses on policies of privatization, marketization, and commodification (hereinafter discussed as ‘marketization’) most directly affecting socio-economic rights. It questions whether these policies amount to a willing abandonment of the state’s own authority over human rights outcomes within its jurisdiction. It uses the business and human rights concept of the ‘governance gap’, an area where the state is unable or unwilling to protect human rights, to explore this idea.
Marketization is based on the idea that the role of the state is to regulate and incentivize private actors to achieve social goals. Under this logic the state should not provide directly, other than a minimal safety net, because the state is inefficient, the state will unfairly outcompete with and therefore crowd out business provision, and business provision provides greater choice and opportunity. The state’s role is to create a system of rules and incentives that creates a flourishing private market. Thereinafter, policies to directly protect or fulfil human rights become harmful interferences in the free market. Even a minimalistic pro-human rights policy, such as a slight additional tenancy protection, becomes a small disincentive to private builders and potential landlords, and therefore potentially harmful. The research project will explore whether marketization amounts to a governance gap within which the state cannot implement rights realizing policies.
Currently, human rights bodies treat marketization as a legitimate method of attempting to realize human rights on the basis that IHRL does not evaluate methods but instead evaluates outcomes. If it is the case that marketization creates a governance gap within which pro-human rights policies become impossible or at least unwise, this could underlie a radical shift in the human rights approach to markets.
David Birchall is a Senior Lecturer in Law at London South Bank University, having previously worked at the City University of Hong Kong at the University of Nottingham. His research investigates business-related human rights issues with a focus on socio-economic rights and the marketization of basic needs. He has published extensively in the field of business and human rights, including in International and Comparative Law Quarterly, the Business and Human Rights Journal, and Transnational Legal Theory, as well as co-editing the Edward Elgar Research Handbook on Human Rights and Business.
Prior registration is required. Registered attendees will receive the dial-in details as well as a draft paper, on which the presentation is based, via e-mail prior to the event.
