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New Zealand Journal of Environmental Law |
Last Updated: 29 January 2023
39
Human Rights and the Environment: Access to Energy
Marc Clemson*
Energy is essential to the social and economic development of the world. However, at the beginning of the second decade of the 21st century, over 20 per cent of the world’s population — 1.4 billion people
— do not have access to electricity. The ever-increasing demand for energy provides an urgent signal for the human right to access energy to be addressed in international law. To date, the majority of literature regarding human rights and energy focuses on either the right to development or the eradication of poverty. This article documents the unabated growth in world energy consumption and the nexus between energy consumption, GDP and population growth. It then establishes whether the notion of a human right to energy, in particular access to electricity, is recognised by international law and places the human right to access energy in the context of other human rights. This is then followed by a review of whether such a right would be enforceable and consideration of the issues that may arise with regards to energy policy development. The article concludes that whilst the human right to access energy may well be accepted by many as a moral right, this notion has yet to be explicitly recognised by international law.
*BSc (Eng) Queen Mary College, University of London, MSc (Management) Cranfield University. This article was submitted in 2011 as a paper for the subject International Environmental Law as part of the author’s PGCert (Law) at The University of Auckland. The author would like to thank Professor Klaus Bosselmann for his helpful comments on an outline of the paper.
40 New Zealand Journal of Environmental Law
1. INTRODUCTION
As a protection against ... insanity, memory is far better than the law.
John Kenneth Galbraith1
It is barely possible to comprehend the amount of energy the world consumes each year. In 2010, the world consumed 12,852 million tonnes of oil equivalent.2 This figure equals 538 exa-joules3 and corresponds to 660 times the energy supplied for use in New Zealand in 2010.4 In 2011 the world’s population was expected to exceed 7 billion.5 The global trend of a rapidly growing population measured in billions with an insatiable appetite for energy results in a continuing increase in demand. However, at the beginning of the second decade of the 21st century, over 20 per cent of the world’s population — 1.4 billion people — do not have access to electricity. It is predicted that without dedicated policies, this number will drop, but only to 1.2 billion, by 2030.6
Whether the billions include citizens of impoverished nations that are enjoying access to energy for the first time or whether they are citizens of nations with an emerging middle class, the cumulative effect results in a significant year-on-year growth in energy consumption. However, the planet is of a finite size and becoming increasingly overcrowded. Civilisation as we understand it is based on sources of energy that are finite in nature. Renewable sources of energy are currently making an insignificant contribution. Yet energy is necessary to satisfy humanity’s basic physiological needs.
The human right to access to energy is of equal or perhaps greater importance than other thirdgeneration rights. The right to access to energy is a prerequisite for realising civil, political, social, economic, and cultural rights. The implementation of thirdgeneration rights depends on access to energy. The everincreasing demand for energy provides an urgent signal for the human right to access energy to be addressed in international law.
from French: Système international d’unités).
To date, the majority of literature regarding human rights and energy focuses on either the right to development or the eradication of poverty. This article has three objectives. The first is to document the unabated growth in world energy consumption and the nexus between energy consumption and population growth. The second is to establish whether the notion of a human right to energy, in particular access to electricity, is recognised by international law. The third is to place the human right to access energy in the context of other human rights. This will then be followed by a review of whether such a right would be enforceable and consideration of the issues that may arise with regards to energy policy development.
The article will focus on access to modern energy services, in particular, household access to electricity. This research does not intend to cover household access to clean cooking stoves or additional modern energy services such as fuels for transportation and space heating. The term “access” is defined as including both physical and economic accessibility.
Part 2 presents an overview of the continuing growth in the world’s energy consumption, and the connection between energy, human rights, and development. In order to obtain an overview of the international law relating to human rights on related topics, part 3 will present an analysis of whether the human right to water is present in international law. This is followed by an analysis of whether the human right to environment is present in international legal instruments — part 4. Following the analyses regarding both water and environment, part 5 presents an analysis of whether the human right to access energy generally, and access to electricity specifically, is recognised by international law.
Part 6 places the human right to access energy in the context of other human rights while part 7 considers whether such a right would be enforceable. In part 8 — Conclusions — the findings of the preceding analyses provide a basis for presenting the argument that the everincreasing demand for energy provides an urgent signal for the human right to access energy to be addressed and considers the issues that arise with regards to energy policy development. Finally, recommendations are made and areas for further research identified.
rate since 1973.10 Figure 1 presents the growth in energy consumption since 1965, electricity generation since 1990, and the world’s population since 1960.11 Considering the sources of both the primary energy consumed and electricity generated, Figure 2 presents energy consumption in 2010 by fuel and electricity generation by source.12
Figure 2: Energy consumption and electricity generation by fuel and source.
By inspection, it can be seen that the growth in both energy consumption and electricity generation is strongly correlated to world population. Furthermore, renewable sources of energy have yet to contribute significantly to the total demand for energy generally and electricity specifically.13
2.2 Access to Energy
The World Commission on Environment and Development identified over 20 years ago that in response to industrialisation, urbanisation and societal influences the growth of energy demand has resulted in an uneven global distribution of primary energy consumption.14 Birol points out:15
10 “BP Statistical Review of World Energy June 2011” (2011) British Petroleum <www.bp.com>. 11 Source data is from “BP Statistical Review”, above n 10, and World Bank “World
Development Indicators 2011” (2011) The World Bank <http://data.worldbank.or g> .
The global energy system faces three major strategic challenges in the coming decades: the growing risk of disruptions to energy supply; the threat of environmental damage caused by energy production and use; and persistent energy poverty. The first two challenges have attracted a lot of attention from the energyeconomics community, much less so the need to address the problem of energy underdevelopment.
Figure 3 presents a graphical representation of the global access to electricity.16
Figure 3: World with territory size revised in proportion to percentage of population with access to electricity (2002).
SubSaharan Africa represents the greatest challenge. If South Africa is excluded from the figures for Africa, only 28 per cent of the population has access to electricity.17
In 2000, the United Nations (UN) adopted eight Millennium Development Goals (MDGs) designed to eradicate extreme poverty and hunger by 2015. However, whilst the achievement of these goals is dependent on access to energy, the MGDs do not specifically refer to this issue. This omission has resulted in the UN Advisory Group on Energy and Climate Change calling for the adoption of the goal of universal access to modern energy services by 2030.18
18 At 245.
2.3 Energy and Development
The lack of access to modern energy services constrains the ability of the population of developing countries to benefit from opportunities for economic development and increased living standards.
A number of attempts have been made to quantify human wellbeing. The issues surrounding using gross domestic product (GDP) per capita are well documented. An alternative measurement of “human development”, the Human Development Index (HDI) has been used by the United Nations Development Programme (UNDP) since 1993.
The HDI is the average of three indices based on the following three basic dimensions of human development:19
Goldemberg presents an analysis clearly showing that energy has an influence on human development. The extent of this influence is shown graphically in Figure 4.20
Figure 4: HDI and energy use for 40 industrialised and 121 developing countries (1998/1999).
From this comparison, Goldemberg points out that the HDI value is practically constant at greater than 0.8 for all countries for a rate of energy consumption above one tonne of oil equivalent per capita per year. Energy consumption at this rate appears to be the minimum energy required to guarantee an acceptable standard of living.21
In order to further clarify the role that energy plays in human development, the International Energy Agency (IEA) devised an Energy Development Index (EDI) in 2010. The EDI is the mean of the following four values:22
(1) Per capita commercial energy consumption;
(2) Per capita electricity consumption in the residential sector;
(3) Share of modern fuels in total residential sector energy use in 2010; and
(4) Share of population with access to electricity.
The IEA considered over 60 of the world’s least developed countries and ranked them using the EDI results. All subSaharan African countries appeared in the bottom half of the table.23
In the same year, the IEA also demonstrated how energy services further human development by comparing the HDI to the EDI. The correlation between the results of the EDI and the HDI is shown in Figure 5.24
Figure 5: Comparison of the Human Development Index to the Energy Development Index.
23 At 264.
24 At 265.
The conclusion that access to energy services is integral to overcoming poverty is becoming widely accepted in the international community. One objective of this article is to establish the extent of any legal recognition of this issue.
2.4 The Concept of Human Rights
The issue of how individual human beings live in society has concerned mankind for millennia. The idea of the term “human rights” is contained in the religions, philosophies and historical development of the world’s cultures. The aim is to protect the dignity of all human beings, no matter what their status or condition in life.
The term human rights refers to the relationship between those who are governed and those who govern and asserts that all human beings are born free and equal in dignity and rights. States are obliged to organise society such that all individuals are provided with the conditions and necessities of life to enable them to develop to their maximum potential, and protect all human beings from abuses of power by the State. Whilst there is significant debate regarding whether specific rights are human rights, there is less debate regarding the defining features of human rights. Human rights are accepted to be inherent, inalienable and universal.25
The New Zealand Ministry of Foreign Affairs and Trade’s Handbook on International Human Rights states:26
They are inherent in the sense they belong to all human beings, regardless of whether they are recognized or granted by any system of law. They are inalienable because governments cannot take them away, nor can people choose or agree to give them away. They are universal because they apply to all people regardless of nationality, religion, status, gender, age, political belief or race.
2.5 A Brief History of Human Rights
As the term is understood today, the development of human rights originated in the context of the nationstate as people attempted to impose legal restraints upon the power of rulers to govern. The Magna Carta of 1215 was forced upon King John of England by his nobles and is the first domestic document which is often referred to as a “human rights instrument”. This document contains
principles concerning the right to a fair trial or the right to due process which are still evident in human rights instruments today.27
However, the Second World War and the genocide resulting from the policies of the Nazis provided the stimulus for the development of international human rights law. At the end of the war, Europe was in complete turmoil with vast numbers of escapees, refugees and displaced persons in all States. In the shadow of mass violations of human rights, testimonies and images of the victims of these policies provided the moral imperative to secure basic rights for all.28
A number of States recognised genocide, war crimes, crimes against peace, and crimes against humanity as crimes of an international nature and created a structure for international and national prosecutions of such violations. Following these trials and the creation of the UN, whose charter explicitly promotes human rights, members of the international community have adopted various human rights instruments covering an everwidening range of rights.
The UN Universal Declaration of Human Rights (UDHR), adopted in December 1948, reaffirmed the threefold characteristics of human rights and represented the first significant step by the international community to establish a body of international human rights law and practice. The International Bill of Human Rights is the name which is given to the UDHR and two International Covenants.29 Combined, these instruments form the foundation of contemporary international human rights law.30
Article 22 of the UDHR contains a general statement of philosophy with regard to economic, social and cultural rights:31
Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and for the development of his personality.
The list of economic, social and cultural rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) is more
27 At 10.
exhaustive and detailed than that contained in the UDHR. Article 2(1) of the ICESCR states:32
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
This provision places an obligation on States to move progressively towards the fulfilment of economic, social and cultural rights (sometimes referred to as an obligation of conduct as opposed to an obligation of result).33
2.6 Human Rights and Development
As pointed out in the New Zealand Ministry of Foreign Affairs and Trade’s
Handbook on International Human Rights:34
Human rights do not exist in a vacuum, but operate within particular social and economic contexts. This means that the range and level of enjoyment of human rights by populations in different countries will be conditioned not only by a state’s willingness to adhere to, and implement, international human rights obligations, but also by its technical and financial ability to do so. Human rights and economic progress thus advance on a united front.
The debate regarding the linkage between human rights and development has matured into the creation of a right to development. This is embodied in the 1986 UN Declaration on the Right to Development (DRD) which states:35
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
Furthermore, the 1993 Vienna Declaration and Programme of Action recognised that: “Democracy, development and respect for human rights and fundamental
34 At 75.
35 Declaration on the Right to Development GA Res 41/128 at art 1(1), A/Res/41/128 (1986).
freedoms are interdependent and mutually reinforcing”36 and declared the right to development “as a universal and inalienable right and an integral part of fundamental human rights”.37
3. HUMAN RIGHTS AND WATER
Access to safe water is a fundamental human need and, therefore, a basic human right. Contaminated water jeopardises both the physical and social health of all people. It is an affront to human dignity.
Kofi Annan, United Nations Secretary-General38
3.1 Introduction
This part considers the legal basis and current status of the human right to water by focusing on the mainstream human rights instruments and principles of international law.
International law must be derived from recognised sources.39 These are defined by the Statute of the International Court of Justice as:40
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilised nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The concept of “international custom” is a reference to the notion that customary law results from the combination of two elements: State practice and acceptance of the practice as opinio juris or obligatory.41 However, treaties have gradually displaced much customary international law.
Declarations, principles, resolutions and action plans (“soft law”) indicate gradually emerging trends of international opinion and State practice and may lead to eventual inclusion in binding treaties. Whilst nonbinding soft law instruments are not necessarily binding as is hard law, it may indicate the opinio juris or State practice that is a source of new customary law.42 However, this part will focus on lex lata (law which has been made) as opposed to lex ferenda (law which ought to be made).43
3.2 Existing Human Rights Laws, Covenants, and Declarations
There is an extensive body of covenants and international agreements that include both express and implied references to the human right to water.
No express mention of the human right to water is made in the Charter of the United Nations (UN Charter). However, it does refer to the contemporary chal lenges that we face as a global community by promoting:44
(a) higher standards of living, full employment, and conditions of eco nomic and social progress and development;
(b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
Water plays a central role in the achievement of these goals.
The resolutions of the United Nations General Assembly (UNGA) are not legally binding, since, even when they are adopted unanimously, they are still only recommendations to States. A combination of later State practice and opinio juris may operate to transform the resolution into customary international law. Many of the provisions of the UDHR are now considered to be customary international law. The UDHR states:45
International Law (3rd ed, Oxford University Press, New York, 2010) 122 at 134.
Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services ...
Whilst no express mention of the human right to water is made, Gleick argues that the UDHR considered water to be implicitly included as a “component element”. Satisfying the standards of the declaration cannot be done without water of sufficient quantity and quality to maintain human health and wellbeing. Meeting a standard of living adequate for the health and well being of individuals requires the availability of a minimum amount of clean water.46
Following the UDHR, two separate Covenants dealing with different categories of rights were adopted in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR. The Covenants were drafted in the form of a treaty legally binding on signatories.
However, there is a critical textual difference between the two Cov enants.47, 48 The ICCPR places an immediate obligation on each State Party to “respect and ensure” rights.49 However, the ICESCR only obligates each State Party to:50
... take steps, individually and through international assistance and co operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures.
The ICESCR formalised the right to food and some minimum quality of life:51
... recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
The ICESCR also formalised the right to physical and mental health:52
... recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken ... to achieve the full realization of this right shall include those necessary for ... (3) the prevention, treatment and control of epidemic, occupational and other diseases.
Again, as with the UDHR, no express mention of the human right to water is made. However, Gleick argues that access to water can be inferred as a derivative right necessary to meet the explicit rights to health and an adequate standard of life.53
The General Comment 15 (GC 15) of the UN Committee on Economic, Social and Cultural Rights (CESCR), adopted in 2002, offered an express reference to the human right to water.
GC 15 of the CESCR states there is an independent human right to water under the ICESCR54 and elaborates the normative content of the right under the ICESCR.55 GC 15 states:56
... The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival.
However, McCaffrey argues that the CESCR was not authorised to adopt general comments that would be binding on the States Parties to the ICESCR. Whilst the CESCR finding that a human right to water may be inferred from arts 11 and 12 of the ICESCR is sound, care should be taken drawing conclusions
55 At [10–15].
56 At [3].
about the nature and even the very existence of a human right to water solely on the basis of GC 15.57 The CESCR does not have lawmaking power. This conclusion is supported by Williams who also remarks that GC 15 does not constitute a legally binding interpretation of the ICESCR and thus does not impose legal obligations on States.58
McCaffrey argues that whilst there is no doubt the CESCR is a highly authoritative interpretation of the ICESCR, the finding does not bind the States that are party to it, let alone other States. Its interpretations have to be accepted by both the States Parties to the ICESCR and those States that are not parties.59
The DRD states:60
States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources ...
In 2000, interpreting this article, the UNGA clarified and reaffirmed that:61
The rights to food and clean water are fundamental human rights and their promotion constitutes a moral imperative for both national Governments and for the international community ...
However, Piron points out in a review of the status of the debate regarding the right to development that the DRD is not a legally binding treaty.62
The obligation to provide an adequate domestic or drinking water supply is expressly provided for in three specialised human rights instruments: the Geneva Conventions, the 1979 Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW), and the 1989 Convention on the Rights of the Child (CRC).
The Geneva Conventions comprise four treaties, and three additional protocols, that provide the standards of international law in the area of armed conflict. In 1949, the terms of the first three treaties were updated and a fourth treaty added. The Third Geneva Convention states: “Sufficient drinking water shall be supplied to prisoners of war”63 and “prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry”.64 The 1949 Conventions have been modified with three amendment protocols. Protocol I (1977) states: “it is prohibited to attack, destroy, remove or render useless ... drinking water installations and supplies”.65
The CEDAW considers the rights of rural women and states that States Parties shall take all appropriate measures to ensure women the right: “To enjoy adequate living conditions, particularly in relation to ... water supply ... .”66 The CRC considers the basic needs of children. Comprising 54 articles and two optional protocols, it requires each State Party to take appropriate measures to provide “adequate nutritious food and clean drinkingwater”.67
Despite the explicit wording in both CEDAW and the CRC, McCaffrey argues that neither agreement places the entitlement in human rights terms. Instead, they place a duty on governments to ensure that water, among other things necessary to life and good health, is provided to members of groups that have been identified as requiring special protection.68
3.3 Constitutional Provisions
It is appropriate to consider national constitutions as a source of an emerging right to water and judicial decisions of the rights contained in those constitutions. Scanlon and others point out that: “Whilst over 60 constitutions refer to environmental obligations, less than onehalf expressly refer to the right
of its citizens to a healthy environment.”69 The Constitution of the Republic of South Africa includes an explicit right of access to sufficient water stating: “Everyone has the right to have access to ... (b) sufficient food and water ... .”70 Given this situation, Scanlon and others raise doubt regarding whether a uniform constitutional practice has emerged. Hardberger remarks that while references to the human right to water has raised awareness in the international community, it has not yet reached the objective level of customary international law.71 Williams concurs, agreeing that the human right to water does not appear to have achieved the status of customary international law, which would bind
States that had not recognised the right.72
3.4 Jus Cogens
The notion of jus cogens or peremptory norms is defined as a source of international law referring to principles so fundamental that it overrides all other sources of international law and binds all States.73
Dellapenna argues that while thus far no treaty or other binding legal docu ment expressly recognises a human right to water, the notion is gradually gaining acceptance in the international community. Such a right is inferable from a number of human rights treaties and other legal documents. Dellapenna states that two benchmarks in the process were GC 15 by the CESCR in 2002 and the approval of the Berlin Rules on Water Resources by the International Law Association in 2004. This approval expressly recognised a right of access to water as part of customary international law and provides a summary of the legal principles that are necessary to realise such a right.74 Dellapenna also refers to CEDAW, CRC and the Conventions on the Laws of War (Additional Protocol I to the Geneva Conventions) and the constitutions of a number of States.
It is suggested that arguably some or all of these instruments have risen to the level of customary international law binding on all states. Furthermore, given their importance, they generally represent jus cogens — fundamental, overriding principles of international law, from which no derogation is ever permitted: law that binds all countries, even if they have objected to the law
International Law (3rd ed, Oxford University Press, New York, 2010) 141 at 146.
in question.75 However, in practice, attempts to classify law as jus cogens have not met with success. While there is near universal agreement for the existence of the category of jus cogens norms, there is far less agreement regarding the actual content of this category.
3.5 Judicial Decisions
Scanlon and others and Shelton present a number of judicial decisions referring to water. Scanlon and others argue that these show that recognition of a human right to water, though not recognised within the law of nations per se, is an emerging trend.76 Shelton comments: “In nearly every instance, the complaints brought have not been based upon a specific right to a safe and environmentally- sound environment ... .”77 Considering drinking and bathing water, two of the cases presented by Scanlon and others and Shelton are of particular relevance.
Ecuador is a member State of the Organisation of American States. The American Commission on Human Rights (American Commission) has the mandate to review human rights in member States. In 1997, the American Commission presented a Report on the Human Rights Situation in Ecuador. The executive summary states: “The inhabitants of affected sectors have been exposed to the toxic byproducts of oil exploitation in their drinking and bathing water ... .”78
Shelton refers to the American Commission’s statement emphasising the right to life and security: “where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights [right to life, to physical security and integrity] are implicated”.79
Zaire is a State Party to the 1981 African Charter on Human and Peoples’ Rights (African Charter). Following a Communication against Zaire, alleging a failure to provide basic services, the African Commission on Human and Peoples’
75 At 187.
<www2.ohchr.org>.
Rights (African Commission) held the Zaire Government had violated art 16 stating:80
Article 16 of the African Charter states that every individual shall have the right to enjoy the best attainable state of physical and mental health ... The failure of the government to provide basic services necessary for a minimum standard of health, such as safe drinking water ... constitutes a violation of Article 16.
None of the judicial decisions include an express recognition of the human right to water.
3.6 Conclusions
No one disputes that humans should have a right to water of sufficient quantity and quality to sustain life. However, the explicit provisions of the UDHR and the ICESCR are silent about the human right to water.
At the universal level, there are only three human rights instruments that make explicit, if brief, mention of water: the Geneva Conventions, the CEDAW, and the CRC. While these provisions are the only three global instruments that explicitly provide for the human right to water, they are far from comprehensive. In the Geneva Conventions, the right to water is only recognised with respect to either prisoners of war or victims of armed conflict. In the CEDAW the right to water is recognised only in the context of ensuring adequate living conditions of women, and, arguably, it does not apply to any other group of people. In the CRC, the right to water is seen as a means to prevent disease and malnutrition. The scope of provisions excludes adults. Furthermore, the CRC only relates to a certain aspect (quality) of water and is silent about the quantity of water which the beneficiaries are entitled to claim. The three instruments only place a duty on governments to ensure that the human right to water is provided to persons, without providing for corresponding subjective entitlements for human beings in human rights terms.
The human right to water is still vying for a status similar to the other explicitly recognised socioeconomic rights. A human rights instrument that mentions the right to water by name is more of an exception rather than the norm. With the exception of the three Conventions, the right to water has been recognised implicitly, that is, under articles that refer to directly related rights contained within the ICESCR, such as an adequate standard of living, food and health. None of the judicial decisions include an express recognition of
the human right to water. Considering the current status of the law regarding the human right to water, none of the law identified from recognised sources represents State practice or opinio juris.
4. HUMAN RIGHTS AND THE ENVIRONMENT
Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.
Stockholm Declaration on the Human Environment 81
4.1 Introduction
Recognition that human survival depends on a clean and healthy environment places the claim of a right to environment fully on the human rights agenda. An immediate, practical objective of international human rights law is to gain international recognition of specific human rights. Successfully placing personal entitlements within the category of individual human rights preserves them from the ordinary political process.82
As per part 3 above, this part considers the legal basis and current status of the human right to environment by focusing on the mainstream human rights instruments and principles of international law.
4.2 Existing Human Rights Laws, Covenants, and Declarations
There is an extensive body of covenants and international agreements that include both express and implied references to the human right to environment.
No express mention of the human right to environment is made in the UN Charter. However, the environment plays a central role in the achievement of the goals presented in part 3.2.1 above.
Whilst no express mention of the human right to environment is made, the UDHR was drafted and adopted before environmental protection became a matter of international concern. It can be argued, therefore, that the term “including” (see text above at n 45) indicates that the component elements listed were not meant to form an exhaustive list, but serve as an indication of certain factors essential for an adequate standard of living. This would include, amongst other things, the right to an environment which is of sufficient quality to maintain human health and wellbeing.
The UDHR states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realized.”83 Whilst no express mention of environment is made, Glazebrook argues that this “order” can be seen as encompassing the environment. Satisfying the standards of the declaration cannot be done without a clean and healthy environment.84
The ICESCR refers to a clean and healthy environment as an economic or social right, comparable to the social, economic and cultural rights whose progressive attainment is promoted by this instrument.
The ICESCR recognises “the right of everyone to the enjoyment of just and favourable conditions of work which ensure ... safe and healthy working conditions”;85 “Children and young persons should be protected ... Their employment in work harmful to their morals or health ... should be punishable by law”;86 and “the right of everyone to an adequate standard of living ... and to the continuous improvement of living conditions ... will take appropriate steps to ensure the realization of this right”.87 Finally, the ICESCR states:88
(1) The States Parties ... recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
(2) The steps to be taken by the States Parties ... to achieve the full realization of this right shall include those necessary for:
...
86 At art 10(3).
87 At art 11(1).
88 At art 12.
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occu pational and other diseases;
However, whilst arts 7(b), 10.3, 11.1 and 12 articulate the right to a decent working environment, decent living conditions and health respectively, we return to the critical textual difference between the two Covenants as discussed at part 3.2.3 above. The degree to which States would be required to act is governed by the general provision concerned with giving effect to the rights contained in the ICESCR found in art 2(1).89 States Parties must do what they can to promote the rights as far as their resources allow. If they lack resources, they need do nothing.90
As discussed in part 3.1 above, customary international law can be established by showing (1) State practice and (2) opinio juris. In assessing the degree of State practice, it is relevant to review treaties, domestic legislation, judicial decisions and international declarations.91
The two landmark Declarations in the development of international envi ronmental law are the 1972 Declaration on Human Environment (Stockholm Declaration) and the 1992 Declaration on Environment and Development (Rio Declaration).
The Stockholm Declaration states:92
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the environment for present and future generations.
Fitzmaurice and Marshall argue that this links environment to the 1948 UDHR by pledging the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being: “The element which connects the human environment and the Universal
89 RR Churchill “Environmental Rights in Existing Human Rights Treaties” in Alan Boyle and Michael Anderson (eds) Human Rights Approaches to Environmental Protection (Clarendon Press, Oxford, 1996) 89 at 102.
90 At 99.
Declaration of Human Rights is therefore, arguably, human dignity.”93 However, Glazebrook points out that the right to environment became linked to the concept of sustainable development.94
The Rio Declaration states: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”95 However, it does not grant a direct right to a clean environment. Fitzmaurice and Marshall argue the language used is of “entitlement” rather than a “right” as such.96 Finally, very few principles of either Declaration are binding.97
In 1998 the United Nations Economic Commission for Europe (UNECE) approved what is usually known as the “Aarhus Convention”. The Aarhus Convention is a multilateral environmental agreement through which the opportunities for citizens to access environmental information are increased and transparent and reliable regulation procedure is secured. The Preamble builds on Principle 1 of the Stockholm Declaration stating:98
... every person has the right to live in an environment adequate to his or her health and wellbeing, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations ...
However, the Aarhus Convention is focused on public participation in environmental decisionmaking and access to justice and information. It is procedural in content. Whilst the Aarhus Convention does represent an important extension of human rights law, as Birnie and others point out, one
A/CONF.151/26/Rev 1 (1992) at Principle 1.
opinion is that while the Aarhus Convention endorses the right to live in an adequate environment, it “stops short, however, of providing the means for citizens directly to invoke this right”.99
In 1990, before the Rio Declaration, the UNGA observed that a better and healthier environment can help contribute to the full enjoyment of human rights by all. The resolution recognised that “all individuals are entitled to live in an environment adequate for their health and wellbeing”.100
In 1994, a set of draft principles on human rights and the environment providing for a standalone right was appended to a report of the Special Rapporteur on Human Rights and the Environment for the United Nations Sub Commission on the Prevention of Discrimination and Protection of Minorities. The draft principles stated: “All persons have the right to a secure, healthy and ecologically sound environment.”101
However, whilst a number of further reports were requested to review the questions raised by the Special Rapporteur’s report in 1994 and despite the United Nations Commission on Human Rights deciding to appoint a review committee to submit a revised version of the draft principles for adoption, the principles remain a draft.102
References to the environment can be identified in three specialised human rights instruments: the International Labour Organization Convention No. 169 (ILO Convention) concerning Indigenous and Tribal Peoples in Independent Countries, the CEDAW, and the CRC.
The ILO Convention contains numerous references to the lands, resources, and environment of indigenous peoples. For example, arts 2, 6, 7 and 15. Part V of the ILO Convention addresses social security and health issues and states:103
(3rd ed, Oxford University Press, Oxford, 2009) at 274.
Governments shall ensure that adequate health services are made available to the peoples concerned, or shall provide them with resources to allow them to design and deliver such services under their own responsibility and control, so that they may enjoy the highest attainable standard of physical and mental health.
The ILO Convention refers to “adequate health services” only. However, and as discussed in part 3.2.6 above, the obligation regarding the environmental matter of providing an adequate domestic or drinking water supply is expressly provided for in both the CEDAW and the CRC.
However, despite the explicit wording in both the CEDAW and the CRC, we must consider again McCaffrey’s argument that neither agreement places the entitlement in human rights terms. Instead, they place a duty on governments to ensure that the things necessary to life and good health are provided to members of groups that have been identified as requiring special protection.104
4.3 Regional Human Rights Treaties
The human right to environment is expressly recognised in two regional human rights treaties: the African Charter and the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).
The African Charter contains both a right to health and a right to environment stating: “Every individual shall have the right to enjoy the best attainable state of physical and mental health”105 and: “All peoples shall have the right to a general satisfactory environment favourable to their development.”106 Reference will be made in part 4.5 below to the Ogoniland case where
the African Commission held, inter alia, that the African Charter imposes an obligation on the State to take reasonable measures “to prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development and use of natural resources”.107
The Protocol of San Salvador also contains both a right to health and a right to environment stating: “Everyone shall have the right to health, understood to
mean the enjoyment of the highest level of physical, mental and social well being.”108 Furthermore, the Protocol states:109
(1) Everyone shall have the right to live in a healthy environment and to have access to basic public services.
(2) The States Parties shall promote the protection, preservation, and improvement of the environment.
However, and as pointed out by Boyle and Anderson, unlike both the ICESCR and the Protocol of San Salvador, the African Charter does not state that economic and social rights are to be progressively realised, depending on the resources available. Given the economic and social conditions in Africa, it is unrealistic to expect immediate realisation of economic and social rights.110
Furthermore, with respect to any human right to environment, whilst the African Charter does not make a clear distinction between an individual and a peoples’ right, Shelton states that the Protocol of San Salvador contains a right to environment “drafted in more detail than in other human rights instruments”.111
4.4 Constitutional Provisions
Glazebrook refers to materials prepared for the 61st session of the UN Commission on Human Rights stating that, as at 2005, 109 constitutions recognise some protection for the environment.112 Shelton also refers to these constitutions stating that over half of the constitutions, including nearly all adopted since 1992, have explicitly recognised the right to a clean and healthy environment.113 An example is the 1996 South African Constitution which states:114
Everyone has the right
(a) to an environment that is not harmful to their health or wellbeing; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
(i) prevent pollution and ecological degradation;(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
4.5 Judicial Decisions
Considering judgments of the International Court of Justice (ICJ) following the Rio Declaration, the case concerning the GabcikovoNagymaros Project (the Danube Dam case) is of relevance.
The case concerned the construction of a system of locks on the Danube River. Despite a treaty between Hungary and Czechoslovakia, Hungary became concerned regarding the ecological dangers of the project 11 years after the works had commenced. Slovakia wanted the development to continue. Both Hungary and Slovakia referred to sustainable development.
The majority of the Court held that there was a new “concept” of international law — sustainable development — that had to be taken into account. However, in a separate opinion, Judge Weeramantry stated:115
The protection of the environment is ... a vital part of the contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.
As pointed out by Pevato, this was not a proclamation of an express right to environment. Instead Judge Weeramantry refers to those human rights recognised within existing human rights treaties.116
At a regional level, it was noted in part 4.3 above that the African Commission held, inter alia, that art 24 of the African Charter imposes an obligation on the State.
Outlook” (1999) 8 RECIEL 309 at 315.
The Ogoniland case concerned a petition filed by two non-governmental organisations (NGOs) before the African Commission on behalf of the Ogoni people, against the Nigerian Government and Shell Oil Company. The case was filed on, amongst other grounds, human rights grounds on the basis of a right to a clean environment.117
An environmental human right was interpreted by the African Commission as not only providing a clean and healthy environment. It also called for a “comprehensive cleanup of lands and rivers damaged by oil operations”, the preparation of environmental and social impact assessments, provision of information on health and environmental risks, and “meaningful access to regulatory and decisionmaking bodies”.118
Constitutional rights are increasingly being enforced by courts. Shelton refers to India, South Africa, Argentina and Colombia where judgments have recognised the enforceability of the right to environment.119
4.6 Conclusions
At the universal level, there are only three human rights instruments that make an explicit mention of a right to environment. The ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, the CEDAW, and the CRC. While these provisions are the only three global instruments that explicitly provide for the human right to environment, they are far from comprehensive. The ILO Convention is of limited significance due to both the scope (indigenous and tribal peoples) and the number of States Parties to the Convention. Furthermore, and as noted in part 4.2.7 above, the three instruments only place a duty on governments to ensure that the human right to environment is provided to persons, without providing for corresponding subjective entitlements for human beings in human rights terms.
The ICESCR includes limited express right to a decent working environment, decent living conditions and health. States Parties must do what they can to promote rights as far as their resources allow. If they lack resources, they need do nothing.
At a regional level two human rights instruments make an explicit mention of a right to environment: the African Charter and the Protocol of San Salvador. Furthermore, over 100 constitutions recognise some protection for the environment. Nevertheless, there is still a great deal of uncertainty concerning the existence of a global, uniform and universally accepted substantive human right to a clean environment.
Procedural rights have gained certain recognition as a less controversial right. Both the environmental impact assessment procedure and the Aarhus Convention have contributed to the acceptance and development of this right at international and national levels.
The human right to environment is still vying for a status similar to the other explicitly recognised socioeconomic rights. Most international human rights instruments were drafted before the emergence of environmental law as a common concern and, as a result, they do not mention the environment. Furthermore, human rights tend to be focused on individuals whereas environmental protection is more concerned with a collective perspective. The fact that the environment is such a broad term with no agreed definition does not assist the cause. A judicial decision at the regional level has recognised the human right to environment. However, the reference to an express right to environment is the exception rather than the norm. Considering the current status of the law regarding the human right to environment, none of the law identified from recognised sources represents State practice or opinio juris.
5. HUMAN RIGHTS AND ENERGY
Energy services are a crucial input to the primary development challenge of providing adequate food, shelter, clothing, water, sanitation, medical care, schooling, and access to information. Thus energy is one dimension or determinant of poverty and development, but it is vital.
World Energy Assessment: Energy and the Challenge of Sustainability120
5.1 Introduction
The report of the UN Millennium Project states: “To achieve the [Millennium Development] Goals, governments need to pursue universal access to electricity
... .”121 Furthermore, in considering the governance to achieve the MDGs, the report also states: “there has been no systematic effort to integrate development
planning with a human rights framework, even though such integration has tremendous potential and relevance”.122
As per part 3 above, this part considers the legal basis and current status of the human right of access to energy in general and access to electricity in particular by focusing on the mainstream human rights instruments and principles of international law.
5.2 Existing Human Rights Laws, Covenants, and Declarations
There is an extensive body of covenants and international agreements that include both express and implied references to the human right of access to energy.
No express mention of the human right of access to energy is made in the UN Charter. However, energy, and in particular, electricity, plays a central role in the achievement of the goals presented in part 3.2.1 above.
Whilst no express mention of the human right to access energy is made, as per the point made in part 3.2.2 above, the UDHR was drafted and adopted before access to energy became a matter of international concern. It can be argued, therefore, that the term “including” indicates that the component elements listed were not meant to form a complete list, but serve as an indication of certain factors essential for an adequate standard of living. It can be argued further that satisfying the standards of the UDHR requires access to energy to maintain human health and wellbeing.
The UDHR refers to the right to a standard of living stating:123
Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services ...
Article 28 of the UDHR states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”124
122 At 118.
Whilst no express mention of energy is made, both Bradbrook and Gardam125 and Graham126 point out that there is a link between access to energy and the socioeconomic goals included in the UDHR. Satisfying the standards of the declaration cannot be done without access to energy. The human right to access energy is implicit.
The ICESCR recognises “the right to work”127, “the right of everyone to the enjoyment of just and favourable conditions of work”128, “the right of everyone to an adequate standard of living ... including adequate food, clothing and housing”129, “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”130 and “the right of everyone to education”131.
Articles 6.1, 7, 11.1, 12.1 and 13.1 of the ICESCR articulate the right to work, a decent working environment, adequate housing, health and education respectively. Bradbrook and Gardam,132 Graham133 and Tully134, 135 all refer to these articles and point out that all these rights require access to energy. Furthermore, the right to adequate housing has been interpreted as including a right to access services, including energy.
However, we again return to the critical textual difference between the two Covenants discussed in part 3.2.3 above. The degree to which States would be required to act is governed by the general provision concerned with giving effect to the rights contained in the ICESCR found in art 2(1).136 States Parties must do what they can to promote the rights as far as their resources allow. If they lack resources, they need do nothing.137
129 At art 11(1).
130 At art 12.
131 At art 13(1).
137 At 99.
The General Comment 4 (GC 4) of the CESCR, adopted in 1991, offered an express reference to the human right to adequate housing. GC 4 states that the reference in art 11(1) of the ICESCR “must be read as referring not just to housing but adequate housing”.138 The CESCR then goes on to identify certain aspects of the right that must be taken into account stating: “All beneficiaries of the right to adequate housing should have sustainable access to ... energy for cooking, heating and lighting ... .”139
However, we must consider again the arguments offered by McCaffrey regarding GC 15 and the human right to water articulated in part 3.2.4 above. The CESCR is not authorised to adopt general comments that would be binding on the States Parties to the ICESCR. The CESCR does not have lawmaking power. This conclusion was also supported by Williams who remarked that GC 15 does not constitute a legally binding interpretation of the ICESCR.
The CESCR finding regarding the human right to water does not bind the States that are party to it, let alone other States. Regarding GC 4, therefore, we have a right to energy derived from the right to adequate housing contained in a document whose ability to bind States is questionable.
Both Bradbrook and Gardam140 and Tully141 observe that access to energy can be identified in only one specialised human rights instrument, the CEDAW. In considering the rights of rural women, the CEDAW states that each State Party shall ensure women the right: “To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”142
The obligation of providing energy, specifically electricity, is expressly provided for in the CEDAW. However, despite the explicit wording, we must consider again McCaffrey’s argument that this agreement does not place the entitlement in human rights terms. Instead, it places a duty on governments to
138 United Nations Economic and Social Council, Committee on Economic and Cultural Rights General Comment No. 4 The Right to Adequate Housing (Art. 11(1) of the International Covenant on Economic, Social and Cultural Rights) at [7], E/1992/23 (1991).
139 At [8(b)].
140 At 406.
ensure that the things necessary to life and good health are provided to members of groups that have been identified as requiring special protection.143
5.3 Regional Human Rights Treaties
The human right to access energy is not expressly recognised in regional human rights treaties. However, Bradbrook and Gardam observe that the human right to health is expressly recognised in the African Charter and the Protocol of San Salvador. Importantly, the latter also includes the right to have access to basic public services.144 Furthermore, Graham refers to the European Union’s (EU) concept of a “service of general economic interest”, and the references to public utility services in both the Charter of Fundamental Rights of the European Union and the consolidated version of the Treaty Establishing the European Community.145
As discussed in part 4.3 above, the African Charter asserts that States Parties should take the necessary measures to protect the health of their people stating: “Every individual shall have the right to enjoy the best attainable state of physical and mental health.”146 Reference will be made in part 5.6 below regarding the case where the Zaire Government (Democratic Republic of the Congo) in failing to supply basic services, including safe drinking water and electricity, was found by the African Commission to be in violation of this article.147
The Protocol of San Salvador contains both a right to health and a right to have access to basic public services stating: “Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social wellbeing”148 and: “Everyone shall have the right to live in a healthy environment and to have access to basic public services.”149
Article 36 of the Charter of Fundamental Rights of the European Union states:150
The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.
150 Charter of Fundamental Rights of the European Union [2000] OJ C364/01 art 36.
Article 16 of the consolidated version of the Treaty Establishing the European Community states:151
... given the place occupied by services of general economic interest in shared values of the Union as well as their role in promoting social and territorial cohesion, the Community and the Member States, each within their respective powers and within the scope of application of this Treaty, shall take care that such services operate on the basis of principles which enable them to fulfil their missions.
However, and as pointed out by Boyle and Anderson, unlike both the ICESCR and the Protocol of San Salvador, the African Charter does not state that economic and social rights are to be progressively realised, depending on the resources available. Given the economic and social conditions in Africa, it is unrealistic to expect immediate realisation of economic and social rights.152
Furthermore, with respect to any human right of access to energy, whilst the African Charter does not make a clear distinction between an individual and a peoples’ right, the Protocol of San Salvador contains an explicit right of access to basic public services. As Bradbrook and Gardam point out: “Traditionally, public services would include the supply of electricity and, moreover, the other public services, such as transport, health, and clean water, are themselves not available without energy.”153
Finally, Graham points out that in the context of the EU liberalisation programme, the concept of rights to access utility services has developed to the point of inclusion in legislative acts of the EU (Directives).154
5.4 Constitutional Provisions
No national constitutions have explicitly recognised the human right of access to energy. However, the 1996 South African Constitution does recognise the right of access to adequate housing stating:155
(1) Everyone has the right to have access to adequate housing.
(2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
Reference will be made in part 5.6 below to the Grootboom case where the South African Constitutional Court concluded that the right to adequate housing includes “access to services such as water, sewage, electricity and roads”.156
5.5 Domestic Legislation
Tully refers to two examples of domestic legislation that refer to the right to access electricity.157
Firstly, in order to implement the EU Directive 96/92/EC of 19 December 1996 concerning the internal market for electricity, the French Electricity Act of 10 February 2000 was enacted. Section 1 of the Act defines the public service of electricity and states it “contributes to social cohesion by satisfying everyone’s right to electricity”.158
Secondly, the South African Electricity Act 41 of 1987 imposes a duty on those licensed under the Act for the generation and supply of electricity. Section 10(1) states: “Every licensee shall ... supply electricity ... to every applicant who is in a position to make satisfactory arrangements for payment therefor.”159 Reference will be made in part 5.6 below to the case Hendrick Frederick Meyer v Moqhaka Local Municipality where the South African High Court
interpreted this obligation.
5.6 Judicial Decisions
Bradbrook and Gardam and Tully present three judicial decisions referring to electricity.
Considering the right to health, Bradbrook and Gardam present the case of African Commission against Zaire in 1996.160 In part 3.5.2 above, reference
was made to the African Commission’s ruling that Zaire violated art 16 of the African Charter by failing to provide electricity stating:161
Article 16 of the African Charter states that every individual shall have the right to enjoy the best attainable state of physical and mental health ... The failure of the government to provide basic services necessary for a minimum standard of health, such as ... electricity ... constitutes a violation of Article 16.
Considering the right to adequate housing, Tully presents the Grootboom judgment.162 In this case the South African Constitutional Court declared the Government to be in breach of its constitutional obligations and that the right to adequate housing includes access to services including electricity stating:163
The state’s obligation to provide access to adequate housing depends on context ... Some may need access to land and no more; ... some may need access to services such as ... electricity ... .
Considering the unique obligations of South Africa’s Electricity Act 41 of 1987, Tully presents the case of Hendrick Frederick Meyer v Moqhaka Local Municipality.164 Here the High Court of South Africa interpreted the obligation described in s 10(1) stating: “the applicant has a prima facie right created by Section 10(1), Act No.41 of 1987, and fortified by its regulations”.165
None of the judicial decisions include an express recognition of the human right to access energy.
5.7 Conclusions
At the universal level, there is only one human rights instrument that makes an explicit mention of a right to access energy, the CEDAW. Furthermore, this provision is far from comprehensive. As noted in part 5.2.5 above, the CEDAW only places a duty on governments to ensure the things necessary to life and good health and is provided to members of groups that have been identified
as requiring special protection only. It does not provide for corresponding subjective entitlements for human beings in human rights terms.
At a regional level only one human rights instrument makes an explicit mention of a right to have access to basic public services, the Protocol of San Salvador. The human right to access energy is still vying for a status similar to the other explicitly recognised socioeconomic rights. A human rights instrument that mentions the right to access energy is more of an exception rather than the norm.
With the exception of the CEDAW and the Protocol of San Salvador, the right to access energy has been recognised implicitly. That is, under articles that refer to directly related rights contained within the ICESCR, such as to work, a decent working environment, adequate housing, health and education.
Most international human rights instruments were drafted before the emergence of energy as a common concern and, as a result, they do not mention energy. None of the judicial decisions include an express recognition of the human right to access energy. Considering the current status of the law regarding the human right to access energy, none of the law identified from recognised sources represents State practice or opinio juris.
6. THE THREE GENERATIONS OF HUMAN RIGHTS
Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.
Jonathan Swift166
Following on from the previous parts analysing whether the human rights to water, environment and access to energy are present in international law, this part places the human right to access energy in the context of other human rights.
Macpherson stated it should be recognised that neither legal rights nor customary rights are a sufficient basis for human rights. He concluded that the “prospect for a generally acceptable and realistic doctrine of human rights depends chiefly on the generality and rapidity of the transformation from the economy of scarcity to the society of abundance”.167
Cranston disagreed with the inclusion of economic and social rights in the UDHR. He argued that governments lack resources to fulfil the duties implied by rights other than traditional civil and political rights.168
Vasak divided human rights into three generations. Civil and political rights are referred to as first-generation rights. Social, economic, and cultural rights are secondgeneration human rights. Thirdgeneration rights comprise collective rights such as the right to a healthy environment and to natural resources.169 For first- and second-generation rights an individual interest must be shown. Third- generation rights relate to those things that belong to all of humanity.
As the debate surrounding human rights increasingly focuses on third generation rights, the discourse has the potential to be turned on its head. As the finite resources that support civilisation become rarer, it is necessary to focus on basic physiological needs such as water, environment and energy. The human right to access energy is necessary for the enjoyment of other human rights. Considering the human right to water, in today’s society without electricity to power electric pumps, the majority of the world’s population would be without water. In today’s world, how can the right to life — a first-generation right — be guaranteed without access to energy?
In 1943, Maslow proposed a psychological theory of a hierarchy of needs.170 Figure 6 presents this theory in the shape of a pyramid, as it is conventionally portrayed, with the largest and most fundamental needs at the base.
Historically, by considering first- and second-generation rights, issues that are civil, political, social, economic and cultural in nature, it occurs to the author that the human rights discourse has largely focused on the “higher” needs of esteem and selfactualisation. However, the very things that are fundamental to human survival — a healthy environment and natural resources — are sourced from a finite world which includes a finite supply of fossil fuels. It is suggested, therefore, that the notion of a right to those things that are basic physiological needs for human survival, those things of a collective nature, must become a higher priority.
Figure 6: Maslow’s hierarchy of needs (original five-stage model).171
7. ENFORCEABILITY OF HUMAN RIGHTS
What you cannot enforce, do not command.
Sophocles
The previous parts have shown the extent or otherwise to which the human rights to basic physiological needs are explicitly recognised. Despite their development to date, assuming rights of this nature continue to develop and eventually become explicit and accepted as international custom, what are the issues regarding the enforceability of the human right to access energy?
International law is a consensual arrangement based on respect for national sovereignty/territorial integrity, reciprocity, and agreement between States. It is unlikely that the type of enforcement mechanisms employed at a national level would be successful.172
Osiatynski considers the dual nature of the concept of human rights and refers to the relationship between rights and needs. The UDHR declared the moral standards and aspirations for humankind. At the same time, they are understood as the norms of behaviour enforced by international human rights
law. The issue of translating moral standards and aspirations into enforceable legal rights is one of the main goals for human rights movements.173
The means of enforcement are different for moral rights and legal rights. Whilst moral rights would usually provide a justified claim to something, this does not provide an effective means of enforcement. In contrast, whilst legal rights may lack moral appeal, they do provide protection. One need not justify legal rights; one proves them. Human rights activists strive to codify human rights legally to grant them better protection.174
As international human rights law has evolved over the last 50 years, these human rights have been monitored, implemented, and enforced by a number of structures and monitoring/implementation mechanisms. The most important judicial method of dispute settlement is the ICJ. However, the ICJ can only take jurisdiction in a dispute between two States and this is only if the Parties involved have consented to it doing so. As Anton and Shelton point out, individuals do not have standing to bring claims before the ICJ.175
Within the UN system the majority of human rights instruments provide for their own monitoring and enforcement bodies. These include the reports system, the interState complaints provisions, and mechanisms for receiving individual complaints. However, the enforcement of international human rights is seen as an issue.176 An increasing membership of both the UN and regional organisations has resulted in an increase in the States acceding to human rights instruments. This has not necessarily coincided with an increase in resources for the monitoring/implementing bodies.
Notwithstanding the issues associated with both first- and second-generation rights, by considering the human right to access energy, we are considering thirdgeneration rights. These are collective rights that address issues that lie beyond the economic and social rights included in the UDHR and their associated implementation methods. The majority of the world’s demand for energy is satisfied by fossil fuels. That is, a source of a finite nature. How can human rights be granted to something that is not permanently available? If a human right to access energy does exist, then a longterm solution is required. To date, whilst a number of initiatives and targets exist around the world,
the figures presented in part 2.1 above describe the enormity of the issue and the requirement for either a significant step change in the contribution made
174 At 105.
(Cambridge University Press, New York, 2011) at 146.
by renewable sources of energy (if they are to play a significant role), or for alternative measures to be considered. The record to date reveals a serious gap between standard setting and implementation.
International human rights law has the potential to play a more active role in cases where mechanisms that will act beyond borders are necessary. The protection of thirdgeneration human rights requires the protection of rights from abuse by neighbouring States and/or private actors. This requires mechanisms that move beyond the traditional. Instruments of national laws are inadequate.
International human rights have developed over the last 50 years from the promotion of human rights to the protection of articulated rights. The UN has enjoyed a certain degree of success regarding first- and second-generation rights. Whilst a number of States continue to disregard international standards, the UN continues to provide standards. The human rights discourse is now encompassing, as it needs to, thirdgeneration rights.
As Smith states: “enforcement will always, by definition, be achieved through political means”.177 However, Smith also points out: “Perhaps there is merit in considering the status quo as ‘a world rich in human rights norms and ideals but wanting in political will and enforcement’.”178
8. CONCLUSIONS
Replacing coal would take 1,800 times more solar than we have today
... 2.5 million wind turbines — and constant wind ... 1,150 nuclear plants ... 70 tcf [trillion cubic feet] annually of gas — three times the production of Russia ... or 2,250 large hydro plants. All of these sources are important ... The world in 2030 will need it all.
Gregory H Boyce, Peabody Energy Chairman and CEO179
The aim of this article has been to demonstrate that the human right to access energy is of equal or perhaps greater importance than other thirdgeneration rights. The world’s energy consumption continues to grow year on year. However, there is a persistent inequality in this growth. Whilst a growing middle class in emerging economies enjoy increasing access to energy, citizens of impoverished nations continue to suffer from no access at all. International law does not address this issue.
178 At 172.
179 “Boyce Calls for Global Energy Access by 2050 as a Human Right” Engineering and Mining Journal (United States, October 2010) at 20.
The human right to access energy may well be accepted by many as a moral right. However, this article has shown that this notion has yet to be explicitly recognised by international law. Yet access to energy is necessary for main taining civilisation as we know it. This includes traditional civil and political human rights. The world exhibits an addiction to energy generally and fossil fuels specifically. The world’s economy has been transformed from one of scarcity to one of abundance in living memory. A number of alternatives exist to support a continued abundance of energy. To ensure this continued abundance is maintained, and extended to those who have yet to benefit, the human right to access energy must move from a moral right to a legal right.
This article has focused on the human right to access energy. However, it is recognised that there is a trend toward seeking the benefits of free markets by the privatisation of utility services. An investigation, therefore, into interface between free markets and human rights may shed light on the question raised by Graham: “[H]ow is it possible to obtain the benefits of free markets while maintaining protection for human rights?”180
180 Graham, above n 126, at 56.
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