COMMITTEE ON RIGHTS OF CHILD HOLDS A GENERAL DISCUSSION ON THE ROLE OF THE PRIVATE SECTOR IN PROVIDING SERVICES

CRC
31st session
20 September 2002

High Commissioner for Human Rights Says
Non-State Providers Could Have a Positive
or Negative Impact on the Rights of the Child



The Committee on the Rights of the Child today held a day of general discussion on the question of "the private sector as service provider and its role in implementing child rights", which was opened by United Nations High Commissioner for Human Rights Sergio Vieira de Mello.
In his opening statement, Mr. Vieira de Mello said that the topic that the Committee had selected was indeed timely. Today, a wide range of actors were involved in providing the services necessary for the realization of fundamental rights. Non-governmental organizations (NGOs), private foundations, local, regional as well as national governments, local and multinational businesses were all increasingly involved in partnerships aimed at improving the quality of life of children in many countries, he said.
The High Commissioner noted that on the one hand, one had seen positive examples of private corporations providing badly needed investment in water supply infrastructure to provide access to drinking water in areas where previously children were unable to enjoy even that most basic of needs. On the other hand, one had also watched with concern as in some countries, public health clinics previously located in poor communities were forced out of those areas because they were suddenly dependent on user fees, which poor families could not afford. Non-state service providers could have both a negative or positive impact on the rights of children, he added.
Committee Chairperson Jacob Egbert Doek stressed that the private sector was an important actor in the implementation of the rights of children in many countries. There was a growing concern among human rights committees and special rapporteurs about the growing trend of privatization not only of State-run commercial enterprises but also of the provisions for basic needs like water, health and education.
Paul Hunt, Member of the Committee on Economic, Social and Cultural Rights and UN Special Rapporteur on the right to health, said that international human rights law was neither for, nor against, the privatization of service provision. International human rights law was interested in the destination -- the full realization of all human rights -- and was less interested in the road by which that destination was reached.
Following a separate discussion by two working groups, it was recommended that Governments should retain the sole responsibility in ensuring the realization of the rights of the child, even if the private sector was involved in providing services. State accountability was a fundamental obligation that could not be left to self-regulation of non-State actors. The establishment of a code of conduct for the non-State actors was emphasized; however the need for its monitoring was also highlighted. Speakers argued that self-regulation by the private sector should not be enough without State regulations.
The purpose of the general discussions held by the Committee is to foster a deeper understanding of the contents and implications of the Convention on the Rights of the Child as they relate to specific topics.
The Committee is scheduled to examine the initial report of the Seychelles when it reconvenes at 10 a.m. on Monday, 23 September.

Statements
SERGIO VIEIRA DE MELLO, United Nations High Commissioner for Human Rights, said that the topic the Committee had selected, the private sector as service provider and its role in implementing child rights, was indeed timely. Today, a wide range of actors were involved in providing the services necessary for the realization of fundamental rights. Non-governmental organizations (NGOs), private foundations, local, regional as well as national governments, local and multinational businesses were all increasingly involved in partnerships aimed at improving the quality of life of children in many countries.
Mr. Vieira de Mello said that no organization, whether it was an NGO or international agency working in humanitarian crises, or a corporation or foundation providing services where they were in short supply, could afford to lose sight of the central commitments to the child -- and his or her human rights. The issue the Committee would be seeking to shed light on was not whether the provision of services by public or private actors was "better". The question was how one could ensure that appropriate services were provided to all children in conformity with the Convention on the Rights of the Child.
Mr. Vieira de Mello continued to say that although the one-day discussion could not provide a clear answer to that question, it was crucial that the Committee develop its thinking on that issue. It was the Committee, as the international body overseeing the implementation of the Convention, that should ensure that States parties were finding effective means to realize a child's right to health and education; that juvenile detention services promoted each child's reintegration into society; and that a child who was deprived of a family received the special protection and assistance to which he or she was entitled.
The High Commissioner said that the day of general discussion would address a variety of services which were already being delivered by many different actors. On the one hand, one had seen positive examples of private corporations providing badly needed investment in water supply infrastructure to provide access to drinking water in areas where previously children were unable to enjoy even that most basic of needs. On the other hand, one had also watched with concern as in some countries, public health clinics previously located in poor communities were forced out of those areas because they were suddenly dependent on user fees, which poor families could not afford. Non-state service providers could have both a negative or positive impact on the rights of children.
JACOB EGBERT DOEK, Chairperson of the Committee on the Rights of the Child, stressed that the private sector was an important actor in the implementation of rights of children in many countries. The human rights community regularly welcomed the positive role of non-governmental organizations in the promotion and the implementation of human rights and rightly so. But at the same time, there was a growing concern among human rights committees and special rapporteurs about the growing trend of privatization not only of state-run commercial enterprises but also of the provisions for basic needs like water, health and education. It was necessary to reaffirm the State party's responsibility to ensure that -- despite the privatization -- the obligations under the human rights treaties were being implemented.
PAUL HUNT, Member of the Committee on Economic, Social and Cultural Rights and UN Special Rapporteur on the Right to Health, speaking on the subject of "the international human rights treaty obligations of States parties in the context of service provision", said that international human rights law was neither for, nor against, the privatization of service provision. International human rights law was interested in the destination -- the full realization of all human rights -- and was less interested in the road by which that destination was reached, provided that the road chosen was consistent with democratic principles; was respectful of the interdependence and indivisibility of all human rights; and that it did lead towards the destination.
Mr. Hunt said that international human rights law imprecisely defined international social rights, such as the rights to housing, food and health. Further, those rights did not have a deep legal tradition to draw upon as a way of "fleshing-out" what they meant. In his view, it was the responsibility of the international human rights community to remedy that situation. They should also gradually and carefully elaborate the contours and content of those international social rights that were enshrined in the International Bill of Rights and other major international human right rights instruments, such as the Convention on the Rights of the Child. But in the absence of a deep legal tradition in those rights, that would be a very difficult task.
Sharing the experience of the Committee on Economic, Social and Cultural Rights, Mr. Hunt said that the Committee's General Comment 14 on the right to health had set out more fully than any other document the Committee's understanding of the nature and scope of States' obligations under the International Covenant on Economic, Social and Cultural Rights. Health services were among those services that were subject to private sector investment. The same or similar points applied to the rights to food and education. But he hoped that a specific focus on the right to health would shed light on generic issues around States' obligations in the context of service provision.

Discussion and Suggestions
JOHN HILARY, Save the Children United Kingdom, on the behalf of the first working group on "contracting out services for children", said that Governments should retain sole responsibility not only for ensuring the realization of rights but also for the policy choices as to the presence of and increased involvement of the private sector. Service delivery by public and private actors could not be considered to be equivalent.
He said that conditionality of World Bank and International Monetary Fund (IMF) loans, World Trade Organization (WTO) agreements and negotiations and donor conditionalities, among other things, had restrictive effects on Governments' ability to meet their obligations under the Convention. The Committee should take into consideration those restrictions in its general recommendation.
Mr. Hilary said that accountability was a fundamental State obligation and could not be left to self-regulation. It required both national and international level regulation for all stages of private sector involvement, both through sector-specific codes and through overarching principles. The issue of corruption should be considered as a violation of child rights because of the services undelivered to children.
AGNES CALLAMARD, Humanitarian Accountability Project, on behalf of the second working group which discussed "private service providers", said the working group attempted to respond to the question on how the private service providers took into account the provisions of the Convention when conceptualizing, implementing and evaluating their programmes. A question was also raised if mechanisms existed or could be put in place to support and ensure the observance of a rights-based approach by private service providers.
Ms. Callamard said that the working group stressed the need for self-regulation by non-State actors working in areas where Governments were not able to react or Government actions were absent. The first thing the group emphasized was the establishment of a code of conduct for the non-State actors. Self-regulation should be the guiding principle for the actions by the non-State service providers. However, the implementation of the code of ethics should also be monitored. Through the development of self-regulation and a code of conduct, international non-governmental organizations could contribute a lot in providing standard services similar to that of a State. The collective development of a code of conduct was also essential in the field of services provided by the non-State actors.
JACOB EGBERT DOEK, the Committee Chairperson, said that States parties should be able to monitor the work of the private sector with whom they had contractual agreements to carry out the services. However, there was a concern that some States parties did not have the capacity to monitor the situation.
The Chairperson said that child participation in the work of the Committee was not an easy task. However, a number of non-governmental organizations were working with the Committee by supplying it with relevant reports.
There should also be transparency in the work of non-governmental organizations (NGOs), non-State actors and States, Mr. Doek said. The role of specialized UN agencies should also be stressed, although they were not reporting to the Committee. Next to the States parties' responsibilities, the role of non-State partners and non-governmental organizations should be further strengthened.
A representative of the World Bank, said that the Bank had been contributing to the rights of the child through programmes it was supporting, of which 200 projects dealt specifically with child rights. The Bank had also funded educational projects which aimed at putting each child in school and strengthening the educational system of a country.
Another speaker from an NGO said that not all self-regulation measures contributed much to resolve some of the problems where the State was unable to discharge its responsibility. State regulation was necessary in many areas, for example baby food -- an area which could not be left to the private sector without any official regulation.
Other speakers also focused on the issue of service provision by the private sector, particularly in the field of education and health involving the rights of the child.



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