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The contemporary form of globalization is grounded in a neoliberal orthodoxy marked in particular by the deregulation of the market, the liberalization of trade and the privatization of public sectors. At the ideological level the global market idea has thus prevailed over State control as the dominant paradigm for economic development. This has led to a further diffusion of domestic State power. Non-State actors, principally corporations and international organizations, as well as foreign States, influence decision-making. This reality particularly affects the enjoyment and implementation of ESC rights.
Alongside what has become a fast-moving reality, legal developments in the field of ESC rights are also happening at a fast pace. If we look at the history of ESC rights we find that in recent decades scholarship on ESC rights has increased significantly. Moreover, in the last decade we have not only witnessed the end of the ESC justiciability debate, including a growing recognition of these rights at the domestic level, but also the adoption of an international complaints procedure to deal with violations of ESC rights. Yet, these legal developments fall short of providing accountability in a globalized world.
There is a discrepancy between international human rights law - with its focus on the territorial State - and the current globalized context in which non-state actors and foreign States also affect the enjoyment of ESC rights. We concur with other scholars that the empirical reality increases the risk ‘that a human rights regime that addresses itself effectively only to States will become increasingly marginalized'. It is clear that these challenges cannot be resolved with pure Westphalian solutions. This is not unique to the field of international human rights law. There is an array of challenges (climate change, migration, global health…) which ‘go beyond Westphalian conceptions of society and Westphalian conceptions of international law'. Consequently, the challenge for international (human rights) law is arguably how to integrate or incorporate new realities into the body of international law without disrupting the system too dramatically.