This article is written by Prachilekha Sahoo pursuing LLM from National Law University, Odisha. The article has been edited by Ruchika Mohapatra (Associate, LawSikho). 

Introduction

We have all heard the saying, “It was Prometheus that stole the fire from Gods” or that it was humans who discovered fire accidentally playing with the flint-stone or that it was the sight of regular forest fires that gave humans the hint about the fire. There has been no clear-cut theory of the emergence of energy. But it was the technique over the control of creating a fire that gave man the first source of energy beyond his own body. The control over the source of energy signified the beginning of human civilization. The entire edifice of a modern economy is built around the production and consumption of huge amounts of energy.

For both economic development and human development energy is vital. The advent of industrialisation and globalisation over the past few decades has taken a giant leap. Energy resources had been the primary factor for all such development. A UN expert group of the UN Secretary-General in April 2010 called for the realisation of universal access to modern energy services by 2030.

Access to energy services has been considered as a prerequisite to the enjoyment of human rights or at times a human right in itself. However, despite the increased affirmation of the link between human rights and access to energy, the role of human rights in guaranteeing access to energy for each and every individual has been underexplored. This article aims to shorten that gap and seeks to analyse and clarify the concept of energy law, how energy law is perceived in both national and international spheres.

Sources of energy in today’s time

There are multiple sources of primary energy ranging from fossil fuels like coal, petroleum, and natural gas, hydro, nuclear, solar. Some of them are categorized as renewable and non-renewable energy. There are also numerous goals in energy policy i.e.to attain economic efficiency, access to clean energy to all at affordable prices, take steps for environmental sustainability and energy security. 

In the case of fossil fuels, excessive fuel extraction and not giving it enough time for replenishment may cause natural resource degradation, conversion of fuel into useful energy causes environmental pollution, some gases (local) such as sulfur dioxide, nitrogen oxide, and particulate matter, and some (global) like carbon dioxide. In the case of hydropower, conversion of forest land requires massive displacement and resettlement of indigenous people and thus causes ecological disturbance. In the case of nuclear power, the major policy issue is safety. Use of renewable resources like biomass may involve loss of agricultural output. Hence the choice of a model energy mix for a nation involves careful appraisal of trade-offs among the alternatives, based on nationwide circumstances, policy priorities, rate, and affordability.

Issues plaguing the energy sector

Today, 1.4 billion people around the world still lack access to electricity, amounting to over 15 % of the world’s population. Worldwide, approximately 3 billion people still rely on traditional biomass for cooking and heating. While in the Western world, access to energy is considered a normal part of everyday life, it has been estimated that by 2030 lack of access to (modern) energy (services) result in 1.5 million premature deaths per year, over 4000 per day. This is greater than the estimates for premature deaths from malaria tuberculosis or HIV/AIDS. Another challenge is presented in the fact that those living in “energy poverty”, live in rural areas.

These impressing and worrying figures in combination with the unjustifiable disparities in energy access worldwide, regionally and locally, has led to the situation that access to energy is increasingly recognised as a basic human need, as a prerequisite for a life of dignity and the full enjoyment of human rights, even as a claim from human rights protection in itself.

However, access to energy as a human rights concern, or as a right of individuals as such is only a recent concept. It is only for a decade that access to energy has been increasingly recognised as a prerequisite for combating poverty, and that access to energy is a matter of universal concern.

In the 2009 European Union Directive on the harmonisation of electricity markets in the EU, there is still relatively little clarity as to the question of whether access to energy is a true human rights value and whether individuals can actually stake a claim of access to energy as a human right. There is only one human rights treaty that explicitly accords a right of access to energy, in the form of access to electricity, which is the 1979 UN Convention on the Elimination of all forms of Discrimination against Women. It has declared that all the state parties shall take all necessary measures to abolish discrimination against women residing in rural areas in order to make sure that, on a basis of equality of men and women, that they participate in and reap the benefits from rural development and in particular, shall ensure that such women enjoy the right of adequate living conditions, chiefly in relation to housing, sanitation, electricity and water supply, transport and communication infrastructure.”

However, while no other human rights treaty seems to explicitly recognise the right, other human rights supervisory bodies have also commented in their monitoring work that accesses to electricity should be improved and quality of life should be improved.

Interrelationship between human rights and energy law

Human rights are positive rights. They place an affirmative duty upon the state to provide a minimum quantity and quality of goods and services to all the citizens. On the other hand, energy laws govern the use and taxation of energy, both renewable and non-renewable. The practice of energy law includes contracts for siting, extraction, licenses for the acquisition and ownership rights in oil and gas both under the soil before discovery and after its capture, and adjudication regarding those rights. Access to energy is emerging as the basic human right in the 21st century after food, water, and air. To further substantiate the claim, it has been found that based on econometric modeling of historical data suggests that energy consumption will grow at a rate of 5 percent in 2045. 

A human rights-based approach to program the energy laws sets the tone of achievement of human rights obligation as an objective of such development programs. This approach adds value for numerous reasons. It supports the achievement of the Millennium Development Goals. It legitimates the demands of citizens for energy protection and is likely to produce better end results for sustainable development. It will help to produce real results in protecting biodiversity, improving access to energy for all, and channeling and managing conflict over shared natural resources. Another key advantage is that procedural rights create a framework for addressing grievances that are otherwise submerged in conflicts. Human rights standards and principles will help set the objectives of programs whilst also guiding the entire programming process. It legitimates the demands of citizens while delegitimizing the excuses of the powerful.  It may also bring a new dimension to monitoring and evaluation, with the use of common human rights standards and principles to monitor achievements within and across development programs.  

Similarly, problems can also arise in the case of energy utilities. Consumers obtaining access to cheap energy via human rights will have little incentive to conserve.⁴ Furthermore, the provider will have trouble recovering costs. Combining cheap energy under a positive right will degrade infrastructure and aggravate the greenhouse gas emissions contributing to climate change. Energy security concerns might also be further developed. Energy security includes multifarious aspects out of which two are of prominent importance i.e. physical availability and economic affordability. The supplies should be available in proximity to where the household is located and that the energy is supplied to households at prices that even the poorest can afford to pay.

Conclusion

Using a human rights lens to analyse and assess energy issues requires an effort to look beyond technical issues and to identify the legal, political, economic, social, and structural challenges that often lie at the root. With tight methodologies and goals, developing a human rights-based approach will not occur overnight- this will take time and needs to evolve from existing practice. So, therefore, we need to rethink and reorient energy consumption as a basic human right in such a way that it reduces the energy footprint to enjoy the abundance of natural resources, which are affordable as well as sustainable and it doesn’t burden our costs or conscience.

References

1. Energy for a sustainable future. The UN Secretary General’s Advisory Group on Energy and Climate Change (ACECC), Summary Report & Recommendation.28 April 2010, New York, p.7, on the ‘importance of energy’.
2. Yojana, March 2014 Edition on ‘Energy Security’.
3. The distinction between negative and positive rights was notably developed in I. BERLIN, FOUR ESSAYS ON LIBERTY 118-34(1969). See Frank B. Cross, The Error of Positive Rights,48 UCLA L. REV. 857(2001), for a critical evaluation of positive rights.
4. Sarah Krakoff, Planetarian Identity Formation and the Relocalization of Environmental Law, 64 FLA.L.REV. 87,98 (2012).

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