RECONSTRUCTING STATE OBLIGATIONS TO PROTECT AND FULFIL SOCIO-ECONOMIC RIGHTS IN AN ERA OF MARKETISATION

David Birchall

Research output: Journal PublicationArticlepeer-review

Abstract

States hold international human rights obligations to protect rights-holders from infringements by third parties and to fulfil access to rights. States also increasingly rely on businesses to provide essential human rights resources, including for housing, food, and healthcare. How these obligations apply where States rely on businesses has not been adequately conceptualised, particularly regarding the scope of business infringements in this context, and how the obligation to fulfil relates to market regulation. The Committee on Economic, Social and Cultural Rights has not directly addressed these questions, but recent General Comments develop ambitious regulatory obligations in this area. However, their methodology is questionable, often collapsing the distinction between obligations to protect and to fulfil. This article reconstructs the obligations to provide distinct content under each. It delineates State duties to protect from profiteering and to fulfil human rights through market regulation. It concludes by arguing that this reconstruction may challenge central aspects of globalised capitalism based on the human rights harm inherent therein.

Original languageEnglish
Pages (from-to)227-243
Number of pages17
JournalInternational and Comparative Law Quarterly
Volume71
Issue number1
DOIs
Publication statusPublished - 1 Jan 2022
Externally publishedYes

Keywords

  • Business and human rights
  • Globalisation
  • International covenant on economic
  • International human rights law
  • Marketisation
  • Neoliberalism
  • Social and cultural rights

ASJC Scopus subject areas

  • Political Science and International Relations
  • Law

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