For the Universal Right to Modern Energy Services

Summary: 1.3 billion people worldwide do not have electricity and can therefore not

access modern services such as lighting, heating, electronic communications, etc.

Furthermore, nearly 40% of the world’s population uses traditional biomass, which emits

toxic fumes, for cooking and heating purposes. This causes lung diseases to and the death of

millions of people each year. To help solve the problem, this article invites the UN’s

Committee on Economic, Social and Cultural Rights to recognize the “right to modern energy

services” so that everyone can benefit from the energy services critical to the fulfillment of

human rights (cooking and heating, lighting, communications, productive uses such as

agriculture, the cottage industry and transportation). The first part of the article presents the

Committee’s interests in resorting to a general comment to recognize this right. The second

part specifies what the content and legal effects of this right would be.

Résumé : 1,3 milliard de personnes dans le monde n’ont pas accès à l’électricité et ne

peuvent ainsi pas disposer de services modernes comme l’éclairage, le chauffage, les

communications électroniques, etc. De plus, près de 40 % de la population mondiale utilise de

la biomasse traditionnelle pour cuisiner et se chauffer. Leur usage engendre des fumées

toxiques provoquant des maladies pulmonaires et le décès de millions de personnes par an.

Pour contribuer à la résolution de ce problème, cet article invite le Comité des droits

économiques, sociaux et culturels de l’ONU à reconnaître le « droit à des services

énergétiques modernes » afin que toute personne puisse disposer des services énergétiques

indispensables à l’accomplissement des droits humains (cuisson, chauffage, éclairage,

communications, utilisations productives comme l’agriculture, l’industrie artisanale et le

transport). La première partie de l’article présente les intérêts de recourir à une observation

générale du Comité pour consacrer ce droit. La seconde partie précise quelle pourrait être le

contenu et les effets juridiques de ce droit.

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Introduction________________________________________________________________3

1. Interests served in the CESCR’s general comment on the right to modern energy services___________________________________________________________________________5

1.1. A favorable legal and societal context______________________________________5

1.2. A way to federate and universalize________________________________________7

1.3. Evaluation and enforcement control_______________________________________8

2. Legal scope of the right to modern energy services_______________________________10

2.1. What are the energy services concerned?__________________________________10

2.2. Protection of access conditions___________________________________________11

2.3. Scope of the States’ obligations__________________________________________13

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We need energy to live.1 The word energy comes from the Greek word ἐνέργεια

(energeia), which means “force in action”. Energy generates a change of state in the matter

and allows people and things to evolve and transform. Energy is unique in nature, through its

special characteristics, original effects and necessity in the accomplishment of all things. It is

a vector in the transition from cold to hot, from dark to light, from inactivity to movement and

vice versa. It is commonly seen in lighting, heating, transportation, mechanized agriculture,

the operation of electronic devices, etc. Access to energy therefore helps to complete several

actions, many of which are necessary to meet basic human needs.2

Energy is linked to life but insufficient access to it can have devastating consequences

and undermine human dignity: “lack of access to energy and modern and sustainable energy

services is a determining factor with direct repercussions on the efforts made to eradicate

poverty, now the world’s main challenge, and to meet the Millennium Development Goals”.3

Yet, 1.3 billion people worldwide do not have electricity.4 Furthermore, 2.6 billion people, or

nearly 40% of the world’s population, rely or traditional biomass, which emits toxic fumes, to

cook and clean. This use has caused lung diseases to and the death of almost one million

people each year, mainly women and children.5 Between 2010 and 2011, 54 million additional

people had to rely on traditional biomass for their cooking needs.6 The issue of access to

energy must therefore be looked at from a quantitative and qualitative perspective and would

involve investments in both regards.

According to the Chief Economist of the International Energy Agency (IEA), Fatih

Birol, to ensure universal access to energy in 2030, we should “practically multiply the

amount invested in 2009 by five, and reach investments of approximately 48 billion dollars a

year”.7 He adds that such an amount “would only represent 3% of the global projected

investments in energy”.8 Consequently, the number of people relying on traditional biomass

1 Manuel Peter Samonte Solis, From Right to Light: A Human Rights-based Approach to Universal Access To Modern Energy Services (LLD Thesis, University of Adelaide Faculty of Law, 2014) at 10, online : <https://digital.library.adelaide.edu.au/dspace/bitstream/2440/92548/3/02whole.pdf>.2 Adrian. J. Bradbrook & Richard. L. Ottinger, "Energy Law and Sustainable Development" (2003) 47 IUCN Environmental Law Policy and Law Paper; David. M. Smolin, “The Paradox of the Future in Contemporary Energy Policy: A Human Right Analysis” (2009) 40 Cumb L Rev at 135.3 International Year of Sustainable Energy for All, 16 February 2011, A/RES/65/151.4 Ibid.5 Ibid.6 OECD/IEA, World Energy Outlook 2013, Chapter 2 – Extract, (2013) at 4, online: <http://www.worldenergyoutlook.org/media/weowebsite/2015/WEO2013_EnergyForAll.pdf>.7 Bertrand d'Armagnac, "Le défi de l'accès universel à l'énergie" Le Monde (11 October 2011), online : <http://www.lemonde.fr/planete/article/2011/10/11/le-defi-de-l-acces-universel-a-lenergie_1585694_3244.html>.

8 Ibid. 3

should reach 2.8 billion in 2030. According to the World Health Organization, this

phenomenon should result in 1.5 million premature deaths a year, more than 4,000 a day,

which is more than the number of premature deaths caused by malaria, tuberculosis or

HIV/AIDS.9 The high-level Group on sustainable energy for all thus provides a clear answer

to the question regarding the adequacy of the means employed: “Realising these 

objectives will require a decisive shift away from "business as usual"”.10

This prompts certain legal systems to pay special attention to energy access. In a

notice dating from 18 September 2013, the European Economic and Social Committee

described energy as a “common good that is essential for everyone to live in dignity” and

proposed to integrate “the right to universal access to energy” to the founding Treaties of the

European Union.11 In France, the Law of 10 February 2000 recognized “everyone’s right to

electricity”,12 the Law of 13 July 2005 affirmed the “right to access to energy”,13 and Section

L. 100-1 of the Energy Code stipulates that the energy policy “guarantees social and territorial

cohesion by ensuring the right of all households to have access to energy that is affordable

and suited to their resources”. The legal protection of access to energy is not just for

developed States. For example, Section 48 of the Constitution of the Democratic Republic of

the Congo stipulates that: “the right to decent housing, the right of access to drinking water

and to electric energy are guaranteed. The law establishes the conditions for the exercise of

these rights”.

The “right to energy” thus integrates a growing number of legal systems and could be

a preferred option to overcome the precarious energy situation;14 however, the scale of the

actions to implement in terms of energy access would involve a universal legal framework.

This article seeks to demonstrate that a general comment by the Committee on Economic, 9 OECD/IEA, Energy Poverty: How to make modern energy access universal? Special early excerpt of the World Energy Outlook 2010 for the UN General Assembly on the Millennium Development Goals (2010) at 7, online: <http://www.se4all.org/sites/default/files/l/2013/09/Special_Excerpt_of_WEO_2010.pdf>.10 The Secretary-General’s High-Level Group on Sustainable Energy for All, "Sustainable Energy for All: A Global Action Agenda : Pathways for Concerted Action toward Sustainable Energy for All" (April 2012) at 4, online: <http://www.un.org/wcm/webdav/site/sustainableenergyforall/shared/Documents/SEFA-Action%20Agenda-Final.pdf>.11 EC, Opinion of the European Economic and Social Committee on ‘For coordinated European measures to prevent and combat energy poverty, [2013] OJ 341/05, online: <http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52013IE2517&from=EN>. 12 Loi n° 2000-108 du 10 février 2000 relative à la modernisation et au développement du service public de l'électricité, JO, 11 February 2000, 2143, s 1.13 Loi n° 2005-781 du 13 juillet 2005 de programme fixant les orientations de la politique énergétique , JO, 14 July 2005, 11570, s 5.14 Adrian. J. Bradbrook & Judith Gail Gardam, “Placing the Access to Energy Services Within a Human Rights Framework” (2006) 28:2 Hum Rts Q 389; Adrian. J. Bradbrook et Judith Gail Gardam, "Energy and Poverty: a Proposal to Harness International Law to Advance Universal Access to Modern Energy Services” (2010) 57:1 Nethl Intl L Rev 1.

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Social and Cultural Rights (CESCR) would be a suitable way to promote the goal to guarantee

access to reliable and modern energy services to all, at an affordable cost, by 2030. The first

part presents the interests served in acknowledging this (1.), while the second part looks at the

scope of this right (2.).

1. Interests served in the CESCR’s general comment on the right to modern energy services

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was

adopted on 16 December 1966, and therefore does not include any reference to energy access;

however, the CESCR is at liberty to adopt general comments in which it specifies its

interpretation of the provisions of the Covenant. These observations are not legally binding;

however, they offer indications to the States on the way in which to understand and apply the

provisions of the Covenant. The general comments thus make the ICESCR a living instrument

that is shaped by contemporary issues. The Committee seized this possibility 23 times.

Recognition of the right to modern energy services could therefore emerge from this

approach, and the following statements show that the legal and societal context support it

(1.1), that it would be an essential way to federate and universalize this concept (1.2.) and that

means could be implemented to evaluate and control its application (1.3.).

1.1. A favorable legal and societal contextRecognition of a general comment by the CESCR on the right to modern energy

services would hardly be surprising.15 Indeed, it would work into a context that is quite similar

to the one that led to general comments on the right to decent housing and water.

The Committee declared the right to decent housing in the general comment No. 4 it

made in 1991 based on the right of everyone to an adequate standard of living.16 This right

was recognized in a special societal climate as back then, the world had 100 million homeless

people and more than one billion people living in substandard housing. On the legal front, the

United Nations General Assembly had made 1987 the “International Year of Shelter for the

Homeless” and had adopted the Global Strategy for Shelter until the year 2000.17 Similarly, in

the general comment No. 15 it made in 2002, the Committee recognized the right to water

15  Stephen R. Tully, “The Contribution of Human Rights to Universal Energy Access” (2006) 4:3 Nw J Intl Hum Rts 518 at 519. 16 General comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant), ESCOR, 1992, UN Doc E/1992/23.17 Global Strategy for Shelter to the Year 2000, GA Res, UN Doc A/RES/43/181 (1988).

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based on the right to an adequate standard of living and the right of everyone to the enjoyment

of the highest attainable standard of physical and mental health.18 These rights were

recognized in a context that was just as difficult as one billion people did not have access to a

basic water supply and several billions of people did not have access to adequate sanitation.

On a legal front, the vital role of access to water was recognized in a variety of international

legal instruments.

The question of the right to modern energy services is quite similar to the

circumstances that preceded the recognition of the right to decent housing and water in that

1.3 billion people worldwide do not have access to electricity and 2.6 billion people rely on

traditional biomass for their cooking and heating needs. The legal context also deserves to be

looked at given that the United Nations General Assembly declared 2012 to be the

“International Year of Sustainable Energy Access”.19 This recognition generated an initiative

by the United Nations Secretary General regarding sustainable energy for everyone with three

objectives to reach by 2030: universal access to modern energy services, doubling of the

energy efficient improvement rate and doubling of renewable energy in the energy mix.20 In

the Rio+20 Declaration, The future we want, this initiative got the commitment of the States

regarding the modern energy services that would “ensure that 1.4 billion people worldwide

who do not currently have access to them would have access to them”.21 In a resolution dating

from 20 March 2013, the United Nations General Assembly declared 2014-2024 the “United

Nations Decade for Sustainable Energy for All” and asked Member States to galvanize efforts

to make universal access to modern and sustainable energy services a priority.22 The Assembly

also recognized “the importance of giving appropriate consideration to energy issues in the

elaboration of the post-2015 development agenda”.23 In this regard, on 25 September 2015,

UN Members States adopted the sustainable development goals, including goal 7.1: “Ensure

access to affordable, reliable, sustainable and modern energy for all by 2030”.24

Universal access to modern energy services by 2030 has thus become a concern for the

18 General Comment No. 15 : The Right to Water : Substantive issues arising in the implementation of the international covenant on economic, social and cultural rights, ESCOR, UN Doc E/C12/2002/11 (2003).19 Supra note 3.20 Thoko Kaime & Robert. L. Glicksman, “An International Legal Framework for SE4ALL: Human Rights and Sustainable Development Law Imperatives” (2015) 38 Fordham Intl LJ 1430.21 Resolution adopted by the General Assembly on 27 July 2012, 66/288, The Future we want , GA Res, UN Doc A/RES/66/288 (2012).22 Resolution adopted by the General Assembly on 21 December 2012, 67/215. Promotion of new and renewable sources of energy, GA Res, UN Doc A/RES/67/215 (2013).23 Ibid.24 Resolution adopted by the General Assembly on 25 September 2015, 70/1. Transforming our world: the 2030 Agenda for Sustainable Development, GA Res, 70th Sess, UN Doc A/RES/70/1.

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States and is part of a legal and societal context similar to those that generated the general

comments favorable to the right to decent housing and water. It would therefore be time for

the Committee to recognize the right to modern energy services, which could be based on

Section 11 regarding the right of everyone to an adequate standard of living and Section 12

recognizing the right to everyone to the enjoyment of the highest attainable standard of

physical and mental health. This would help to federate and universalize the right to modern

energy services.

1.2. A way to federate and universalizeCurrent recognitions of the right to modern energy services do not result solely from

Constitutions and laws. In many jurisdictions, bodies responsible for enforcing legal standards

also contributed to its emergence by interpreting them in a constructive way. In its general

comment No. 4, the CESCR specified that: “all persons entitled to the right to decent housing

must also have permanent access (…) to energy for cooking, heating and lighting purposes”.

In two decisions made on 5 December 2007, the European Committee of Social Rights

condemned France for violating the right to housing deeming that its fulfillment would

require “access to decent housing”, referring explicitly to general comment No. 4 made by the

CESCR.25 The South African Constitutional Court recognizes that the right to decent housing,

included in its Constitution, includes access to services such as electricity.26 The European

Court of Human Rights may have considered that the refusal to connect a caravan to

electricity can constitute a violation of the right to respect the family life and the home,27

position echoed by the French Council of State.28 As for the African Commission of Human

and Peoples’ Rights, it deemed that a Government’s failure to provide essential services such

as drinking water and electricity can constitute a violation of the right of everyone to the

enjoyment of the highest attainable standard of physical and mental health.29 The High Court

of South Africa believes that the law recognizes the “right to request electricity”.30

Access to modern energy services was therefore protected through existing rights, and

a general comment by the CESCR could federate this phenomenon. With the ICESCR ratified

by 162 States, this recognition would give the right to modern energy services a universal 25 Mouvement International ATD Quart Monde v France (2006), ECSR 33 ; European Federation of National Organisations Working with the Homeless (FEANTSA) v France (2006), ECSR 39.26 Government of the Republic of South Africa & Ors v Grootboom & Ors, [2000] 11 (S Afr Const Ct).27 Stenegry & Adam v France (2007), ECHR 40987/05.28 CE, 15 December 2010, Mme A. v. Cne de Gouvernes, (2010) n° 323250.29 Free Legal Assistance Group and Others v. Zaire (1995), African Commission on Human and Peoples' Rights25/89, 47/90, 56/91, 100/9. 30 Hendrik Frederik Meyer v. Moqhaka Local Municipality, [2003] 4008 S Afr HC.

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platform. It would also help other jurisdictions to build on this interpretation regarding rights

they are responsible for enforcing. In addition to the strong symbolic value linked to this

recognition, legal means could be implemented to ensure its evaluation and enforcement.

1.3. Evaluation and enforcement controlThere are many legal means to evaluate and control the enforcement of the rights

contained in the ICESCR by the States. A general comment on the right to modern energy

services could therefore evaluate and control the enforcement of the ICESCR from this

perspective.

Regarding enforcement evaluation, the States commit to submitting reports on the

measures adopted and the progress made in order to ensure the respect of the rights set forth

in the Covenant.31 These reports are addressed to the UN Secretary General who then sends a

copy to the Economic and Social Council (ESC) for review and to the UN specialized

agencies. This procedure has many advantages.

First, it brings each Member State to conduct a comprehensive review of its laws,

regulations, procedures and practices to comply with the Covenant as much as possible. Then,

it helps to evaluate the significance of the progress made toward the fulfillment of the

obligations included in the Covenant and identify the factors and difficulties impeding this

effective implementation. Finally, these reports must provide the Council with a basis

allowing it to fulfill its responsibilities in terms of controlling the implementation of these

obligations by the States and facilitating the achievement of economic, social and cultural

rights.

The ESC can make arrangements with the specialized agencies for these agencies’

presentation of reports regarding the progress made regarding compliance with the provisions

of the Covenant.32 The ESC can also occasionally present the General Assembly with reports

containing general recommendations and a summary of the information received from the

States and specialized agencies on the measures taken and the progress made to ensure the

general respect of the rights set forth in the Covenant.33 Lastly, it can draw the attention of

other UN bodies and subsidiary bodies and interested specialized agencies responsible for

providing technical support to any question raised in the reports mentioned and that could

help these organizations to make decisions, each in its own area of competence, regarding

31 International Covenant on Economic, Social and Cultural Rights [ICESCR],GA Res 2200A, (1976) art. 16.32 Ibid, art 18.33 Ibid, art 21.

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international measures specific to helping the effective and progressive implementation of the

Covenant.34 The reporting process would therefore show the advantage of assessing the state

of the recognition and enforcement of the right to modern energy services in national legal

systems, contributing to their consolidation and guiding the actions of UN agencies in its

favor.

As for enforcement control, the UN General Assembly, in a resolution dating from 10

December 2008, adopted an optional protocol regarding the ICESCR, establishing remedies

for victims of violations of economic, social and cultural rights.35 Effective on 5 May 2013,

this protocol establishes a procedure in which the CESCR examines whether the State has

taken reasonable measures, within the limits of its available resources, to progressively fulfill

the rights included in the Covenant.36 It gives an individual, a group of individuals or an

organization acting on their behalf, the right to submit communications when a Member State

violates the rights set forth in the Covenant.37 The request requires the exhaustion of domestic

remedies unless they prove to be inefficient, in which case the Committee can be addressed

directly. This procedure is meant to achieve amicable resolution regarding the fulfillment of

the obligations set forth in the Covenant. An inter-State communication mechanism is also

provided for, and the Committee can act on its own initiative. It can visit a State to determine

the veracity of the allegations regarding serious and systematic violations of the Covenant and

has the authority to submit, to the State, the adoption of temporary measures in case of

emergency. Lastly, this protocol sets up a voluntary fund to help the States implement the

provisions of the Covenant.

There is much to be said in favor of the recognition of the right to modern energy

service by the CESCR. This brings us to look at the legal scope of this right.

2. Legal scope of the right to modern energy servicesImplementing the right to modern energy services involves having a clear overview of

its content and legal effects. This brings us to specify the energy services concerned (2.1.),

pthe rotection of access conditions (2.2.) and the scope of State obligations (2.3.).

34 Ibid, art 22.35 Resolution adopted by the General Assembly on 10 December 2008, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, GA Res, UN Doc A/RES/63/117 (2008) ; Manfred Nowak, "De la nécessité d'un Protocole facultatif se rapportant au Pacte international relatif aux droits économiques, sociaux et culturels" (1995) 55 R de la Comm Intl jur. 171.36 Barbara Wilson, "Quelques réflexions sur l'adoption du protocole facultatif se rapportant au Pacte international relatif aux droits économiques, sociaux et culturels des Nations Unies" (2009) RTDhom 305.37 Catarina de Albuquerque, "Protocole facultatif au Pacte international relatif aux droits économiques, sociaux et culturels instituant un mécanisme de plainte" (2008) 7 Droits fondamentaux.

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2.1. What are the energy services concerned?As a right deriving from the ICESCR, the States would be responsible for ensuring

that individuals and communities have access to modern energy services. To confer a legal

scope to this right, the content would have to be sufficiently detailed to ensure legal certainty .

This point invites us to successively determine what the notions of “energy service” and

modern” are.

First, an energy service can be understood as a service provided by a good supplied by

an energy product. In principle, to carry it out there must be a combination of two criteria: the

use of a good and the energy supply of this good. For example, access to light involves a

lighting system and an electricity supply. Cooking requires a stove and fuel such as coal,

natural gas or wood. Consequently, a need for energy can only be met by combining a good

and a suitable energy product. The transportation energy service cannot, for example, be

carried out if the vehicle does not contain a fuel of some kind and vice versa.

Second, these energy services must be “modern”. Modernity can be linked to these

services’ ability to meet needs that are essential to the fulfillment of human rights. In this

regard, the UN working group on energy and climate changes listed a series of energy

services that each person must have sufficient and constant access to, while referring to

personal and domestic uses for cooking, heating, lighting, communications and productive

uses (agriculture for water pumping, fertilizers and mechanized plowing; the cottage industry;

transportation). It is also based on the work of the IEA to estimate the amount of energy

needed to fulfill basic needs, using a tri-level progression in access to energy services.38 The

first level corresponds to the fulfillment of basic human needs including access to electricity

for lighting, health, education, communications and community services of 50-100 kWh per

person per year. It also includes access to fuels and modern technologies for cooking and

heating (50-100 kgep of modern fuel and technologies for cooking and heating). The second

level gives access to energy services for productive uses including access to electricity,

modern fuels and other energy services to improve productivity, for example in the

agricultural field (water pumping for irrigation, fertilizers, mechanized plowing), commercial

(transformation of agricultural products, the cottage industry) and transportation. Finally, the

third level corresponds to the fulfillment of the needs of modern society including access to

energy services for many other household appliances, an increase in requirements in terms of

cooling and heating of space and water and private transportation, corresponding to an

38 Supra note 8 at 13.10

electricity consumption of approximately 2,000 kWh per person per year.

All persons should therefore have access to a sufficient amount of energy and the

goods needed to fulfill basic needs. This would be the States’ obligation, but in accordance

with the sovereignty of the States, they must have a certain leeway in terms of the energy

products proposed. For example, fuel needs can be met through natural gas, oil products,

wood, coal, etc. On the other hand, the right to modern energy services necessarily seems to

include access to electricity given that certain energy services can only be carried out by this

energy product (lighting, the operation of household and electronic appliances).39

Nevertheless, the States should also have some flexibility as to the composition of their

energy mix as per the principle stated.

Access to modern energy services thus involves actions regarding consumer goods and

energy products; however, this situation does not require systematic access to ownership of

these goods and the related energy products. The situation namely arises when it comes to the

transportation energy service, which should not lead to the right of all persons to have a

personal vehicle. This situation is not desirable for cost purposes, to protect the environment

and because this service can also be carried out through other means such as public

transportation, car-sharing, car-pooling, etc.

The notion of modern energy services therefore seems to be able to be circumscribed

to give it a legal scope that is specific enough to the right to modern energy services while

giving the States some leeway. In addition, the applicability of this right calls for

specifications as to the protections linked to access conditions.

2.2. Protection of access conditionsAccess conditions must be specified to make the right to modern energy services

optional. In this regard, Adrian J. Bradbrook states the following: “What would a legal right to

access to energy services consist of? The basic right would be designed to ensure access on

the basis of equality and non-discrimination to a sufficient, regular, reliable, efficient, safe,

and affordable supply of (ideally clean and sustainable) energy”.40 Similarly, Blustein Sholam

states that: “A legal right to sustainable energy must ensure that there is access on the basis of

equality and without any discrimination to ‘reliable, affordable, economically viable, socially

39 Stephen R. Tully, “The Human Right to Access to Electricity” (2006) 19:3 Electricity J 31; Stephen R. Tully, “Access to Electricity as a Human Right” (2006) 4:4 Nethl QHR 557. 40 Adrian J. Bradbrook, “Access to Energy Services in a Human Rights Framework” (2005), online: <http://www.un.org/esa/sustdev/sdissues/energy/op/parliamentarian_forum/bradbrook_hr.pdf>.

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acceptable and environmentally sound’ energy that is sufficient to sustain those services and

amenities (including the environment) that are required to live a dignified life”.41

Obligations regarding this access could be systemized based on the general comment

on the right to water. Indeed, the work of the IEA42 and the one completed as part of World

Water Week43 showed the inextricable links between access to water and energy. These rights

obviously have distinct characteristics but the main principles regarding the conditions of

access to water could easily be applied to the right to modern energy services.

Like for water, energy services should be available adequately and consistently for all

persons for personal and domestic uses for cooking and heating, lighting, communications

and productive uses. According to the CESCR, consistency involves the supply being

sufficiently regular for personal and domestic uses. As for adequacy, the thresholds to use

could be those proposed by the IEA.44

The availability of energy services also calls for their accessibility, which must be

physical and involves the immediate proximity of the energy services. Accessibility should

also be economical as the services should be affordable to all. They should also be non-

discriminatory as no discrimination should prevent access to energy services, especially for

the most vulnerable or marginalized population segments. Accessibility should focus on

information corresponding to the right to research, receive and disseminate information

regarding energy service issues.

Lastly, energy services should be of sufficient quality including the safety of

installations and the quality of the energy distributed so that their use does not pose a threat to

public health. The objectives of doubling the improvement rate of energy efficiency and the

portion of renewable energy in the energy mix by 2030 play a part in this achievement.

The protections selected by the CESCR regarding the right to water could thus be

extended to their main principles regarding the right to modern energy services in order to

specify access conditions. While the notion of modern energy services and access conditions

have been specified, the scope of the States’ legal obligations remains to be determined. 41 Blustein Sholam, “Towards a Right to Sustainable Energy” (2012) at 23, <http://eprints.qut.edu.au/60063/1/Towards_a_right_to_sustainable_energy.pdf>.42 OECD/IEA, Water for Energy Is energy becoming a thirstier resource? : Excerpt from the World Energy Outlook 2012, No 17, (2012), online: <http://www.worldenergyoutlook.org/media/weowebsite/2012/WEO_2012_Water_Excerpt.pdf>. 43 Stockholm International Water Institute (SIWI), World Water Week in Stockholm Energy and Water : 2014 Overarching Conclusions, (2014), online: <www.worldwaterweek.org/wp-content/uploads/2014/09/2014-Overarching-Conclusions-web.pdf>.44 Supra note 8 at 13.

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2.3. Scope of the States’ obligations The right to modern energy services, as for any human right, would impose three

categories of obligations to Member States regarding its application: the obligations to

respect, protect and fulfill.

The obligation to respect would require Member States to refrain from interfering

directly or indirectly with the exercise of the right to modern energy services. The States

would namely be required to refrain from engaging in any practice or activity consisting in

refusing or restricting equal access to modern energy services, directly or indirectly, by

hampering their proper functioning. This obligation would also apply during armed conflicts

during which access to energy services and infrastructures should not be suppressed for

punitive reasons, in violation of international humanitarian law.

The obligation to protect would require Member States to prevent third parties from

hindering, in any way, the exercise of this right. These third parties may include individuals,

businesses or other entities, and agents acting under their authority. Member States would

namely be required to take any necessary and effective measures, including legislative ones,

to prevent, for example, third parties from refusing equal access to modern energy services.

The States must see to it that the third parties managing or controlling the energy services do

not compromise their physical access, at an affordable cost and without discrimination,

through the implementation of an efficient regulatory system and ensure its independent

control, genuine public participation and the imposition of penalties in case of non-

compliance.

The obligation to fulfill would impose the States to take the necessary measures to

ensure the full implementation of the right to modern energy services. It could require the

adoption of a political and legal system, including a national strategy aiming to ensure that

affordable energy services are accessible to all. It would involve the efficient organization of

the energy field on an economic front to ensure that services are affordable to all, and namely

to social disadvantaged groups. It could also include the dissemination of information

promoting sensible energy use. Lastly, it would include access to remedies in case of violation

of the right to modern energy services.

The Committee specifies that these categories of obligations also apply as part of the

foreign policy of the States. As such, the States would have to respect the exercise of the right

by refraining to take actions that would hinder, directly or indirectly, its implementation in

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other countries. It would also have to take measures to prevent their own nationals or

companies under their jurisdiction, to violate the right to modern energy services of

individuals and communities in other countries. Lastly, depending on their resources, the

States would have to facilitate the exercise of this right in other countries, for example, by

providing financial and technical assistance, the necessary support, and paying special

attention to modern energy services in international agreements.

Recognition of the right to modern energy services in a general comment would not,

however, create an immediate obligation to meet all of these requirements. Indeed, Section

2.1 of the CESCR provides for the progressive realization of the rights mentioned in it and

acknowledges constraints based on limits of available resources. The States are, however,

under a constant and permanent obligation to progress as quickly and efficiently as possible

toward the full implementation of the rights mentioned, and there is a strong presumption that

the Covenant would prohibit any retrogressive measures taken in relation to the right to

modern energy services.45 If a State were to deliberately take a retrogressive measure in

relation to this right, it would have to prove that it took this measure after careful

consideration of all alternatives and that this measure is duly justified in light of the totality of

the rights recognized in the Covenant, while making optimal use of the resources available.46

On the same basis as the right to water, however, the Committee could decide to fulfill

basic obligations with an immediate effect. These could include the obligation to ensure the

provision of a basic supply of modern energy services, a non-discriminatory access to these

services, the safety of people, fair distribution of available equipment and services, national

adoption and implementation of a strategy targeting the entire population, control of the

implementation of the right to modern energy services and the adoption of energy supply

programs aiming to protect vulnerable and marginalized groups.

A general comment could therefore be an appropriate way to recognize the right to

modern energy services. This comment would thus extend recognition of this right in

numerous legal systems. It would be a key added value through the universalization that it

would bring and the evaluation and control mechanisms that could be implemented. This

interpretation could then inspire the authorities of other jurisdictions. Consequently, if this

recognition were an essential means of meeting the objective of universal access to modern

45 CESCR, General Comment 3 : The Nature of States Parties Obligations, Annex 3, UN. Doc E/1991/23 (1990) at 86 para 9, online: <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fGEC%2f4758&Lang=en>.46 Ibid.

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energy services by 2030, it should be perceived not as an end in itself but rather as the

beginning of a process.

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