Privatising Human Rights and the Abuse of Power

Abstract

The classical concept of protection of human rights is generally perceived as appertaining to the public sphere. It is concerned with the protection of the individual against the power of the State. However, current voices are heard asserting that human rights are not confined to that sphere. It is claimed that individuals are entitled to respect for their human rights not only as against the power of the state but also in their dealings with one another. Introducing human rights jurisprudence to the disciplines of private law would limit the autonomy of an individual where exercise of that autonomy would infringe the human rights of another person. Under this proposal, the rules of such fields as contract law, company law, torts law and family law, would be subject to human rights principles.The privatising of human rights is taken by this author to infer the attribution of a review jurisdiction to the courts to override provisions of private law the application of which would bring about infringement of the human rights of individuals. It is in the nature of constitutional human rights protection to transfer the power to determine the limits of rights and powers away from the legislature and bestow it on the courts. By this conception of privatising human rights, obviously, not every protection offered by a state to individuals against interference or injury by private persons or bodies can be classified as an application of human rights in the private sphere. The protections provided by the criminal law or by torts, contract and labour law are not privatised human rights in this sense. The clarification is especially important in order to distinguish the provisions of international human rights law from a concept of constitutional privatisation. The international human rights provisions are in essence directives to governments and may be implemented by legislation. Only where they become directly applicable against private persons in the courts of the state party to the Convention can they be regarded as instances of privatising human rights. The perception of a right as a privatised human right rather than a mere application of the norms of the legal system is hence based on the source of the right in the constitutional hierarchy. In the analysis which ensues, the assumption will be made that there is a privatised human right only where that right derives directly from a constitutional power bestowed on courts. In this article, I shall employ the phrase ‘privatising human rights’ to denote this concept. As it will emerge, the use of this term is appropriate not only to denote the process but also to raise policy analogies to a more commonly known form of “privatising”—the privatising of economic activities of the state.