Conceptualising Energy Justice in the Context of Human Rights Law

ABSTRACT

This article explores energy justice in the context of human rights law. Although energy justice and human rights in the energy sector are fundamentally interconnected, energy justice research within and beyond legal scholarship has not engaged with human rights law or vice versa. As an academic effort, energy justice suffers from a lack of real-life legal application. Human rights law, on the other hand, is a well-established legal discipline and a branch of international law operationalised through broad means, comprising international and national legislation and litigation. This article argues that human rights law can be used to frame the same substantive issues as energy justice and that, because of this, human rights law could provide energy justice with a legal (rather than purely academic or policy-focused) framework for its operationalisation.

KEYWORDS:

• Energy justice
• human rights law
• energy sector
• energy transition

1 Introduction

This article explores energy justice in the context of human rights law. In this article, the phrase ‘human rights in the energy sector’ has a dual meaning. First, it refers to energy as a human right in and of itself and, second, it is taken to refer more broadly to human rights law’s application to the energy sector and its impact in that context.

The first academic efforts to unravel the interface between energy and human rights law were made roughly two decades ago,¹ following which the human rights implications of energy activities have been discussed sporadically in multiple fora from various points of view. The first analyses focused on participation, on framing access to energy as a human rights issue, and on linking energy access to poverty issues in a human rights context.² These sparse earlier works were later complemented by human rights approaches to important but often narrower topics such as fuel poverty,³ fracking,⁴ national approaches to the energy transition,⁵ armed conflict,⁶ and, most recently, energy and human rights from a climate change perspective.⁷ The literature on human rights and the environment, which is much more robust than that on human rights and energy, has also touched upon energy issues.⁸

In contrast to the more sporadic dialogue between energy and human rights law, energy research within and beyond legal scholarship has involved active theoretical and practical discussion on energy justice, meaning an energy system that ‘fairly distributes both the benefits and burdens of energy activities, and one that contributes to more representative and inclusive energy decision-making’.⁹ With close links to climate and environmental justice, the energy justice literature has explored energy poverty,¹⁰ access to energy,¹¹ and the environmental harm caused by energy activities.¹²

The similarities between human rights in the energy sector and energy justice discourses are remarkable. The common roots between these two discourses can be traced back to the 1980s: the seminal Brundtland Report of 1987 was the first to explicitly link human rights, sustainable use of natural resources, access and due process, poverty and equality, intergenerational equity, and social justice with energy issues.¹³ These connections have also been explicitly acknowledged in recent energy research.¹⁴ Similar or exactly the same issues of equity and fairness that emerge in the context of the energy sector can be, and frequently are, framed both as human rights and energy justice issues. For example, children working in coalmines, communities forcibly relocating due to hydropower dam construction, and food scarcity due to crops being used for bioenergy are all energy matters that can be framed both as issues of energy justice and human rights.

Despite these fundamental interconnections, energy justice research within and beyond legal scholarship has not engaged with human rights law or vice versa. Indeed, scholarship has highlighted that ensuring access to affordable, reliable, sustainable, and modern energy for all ‘has received minimal focused attention from the human rights community’¹⁵ and that ‘the issue of human rights remains under-researched in energy justice literature’.¹⁶ To address that gap in existing literature, this article investigates energy justice in the context of human rights law.

To date, energy justice has mostly, albeit not entirely, comprised an academic effort to either understand the justice implications of energy activities (a descriptive purpose) or to push for a more just energy system (a normative purpose).¹⁷ As an academic effort, energy justice suffers from a lack of real-life legal application. Human rights law, on the other hand, is a well-established legal discipline and a branch of international law operationalised through broad means, comprising international and national legislation and/or litigation. This article argues that human rights law can be used to frame the very same substantive issues as energy justice. On that basis, this article further argues and demonstrates that human rights law could provide energy justice with a legal framework for its operationalisation, rather than a purely academic or policy-focused framework.

This article first explains what energy justice is and how it has been perceived in energy research within and beyond legal scholarship (Section 2). It then conceptualises the human rights discussion in the energy sector by first reviewing whether and how energy can be understood as a human right in and of itself and, second, by exploring the application and influence of human rights law in the energy sector (Section 3). Building on the analysis in Sections 2 and 3, the article conceptualises energy justice in a human rights context. Based on these findings, the article shows the extent to which energy justice shares characteristics with literature on human rights in the energy sector and how human rights law could be used to pursue energy justice on the basis of those shared characteristics (Section 4). Finally, conclusions are drawn (Section 5).

2 Conceptualisations and Purposes of Energy Justice in Energy Research

Energy justice is commonly defined as an energy system that fairly distributes both the benefits and burdens of energy activities and contributes to more representative, inclusive, and impartial energy decision-making.¹⁸ While the concept of justice has been debated for centuries,¹⁹ that of energy justice is of much more recent origin. While there are distinct differences between the two movements,²⁰ energy justice still ‘draws heavily from the environmental justice movement’,²¹ which has a long tradition of academic debate²² and has focused on a broad range of justice issues, from representation and participation to the fair and equitable distribution of environmental harm.²³ In fact, issues of environmental and climate justice are often framed in terms that resonate directly with energy law and energy research. The most recent Report of the United Nations’ Intergovernmental Panel on Climate Change is representative of this connection: it refers to the just transition as ‘a set of principles, processes and practices aimed at ensuring that no people, workers, places, sectors, countries or regions are left behind in the move from a high-carbon to a low-carbon economy’ and as including elements such as ‘respect and dignity for vulnerable groups; creation of decent jobs; social protection; employment rights; fairness in energy access and use and social dialogue and democratic consultation with relevant stakeholders’.²⁴ Some of these issues have also been addressed in the just transition literature, which has its roots in the international labour unions and which has been seen as filling in some of the gaps in energy justice literature.²⁵ While much can be said about the relationship and differences between climate, energy, and environmental justice, the most important difference from the point of view of this article’s key argument is the lack of engagement between energy justice and human rights discourses.

The nexus between energy and justice has been acknowledged since the 1980s,²⁶ and the justice implications of the energy sector have been examined from a plethora of perspectives. Some contributions focus on the justice implications of certain energy technologies,²⁷ while others explore the energy injustices and disparities between geographic areas,²⁸ between different types of social groups or between different energy activities in the energy value chain.²⁹ The first academic debates on the energy justice implications of law and policy emerged roughly a decade ago,³⁰ and since then justice approaches to energy have gradually become a distinguishable trend in energy law and policy research. Some have criticised energy justice scholarship for its ‘academic hyper-activity and hyper-innovation’.³¹

As a result of the long line of academic inquiry into different aspects of energy justice, certain elements have solidified. Energy justice is customarily divided into three central tenets identical to those of environmental justice,³² namely distributional justice, procedural justice, and recognition justice.³³ As in environmental justice, the categorisation into these three key tenets has become well established in energy justice literature. However, there is significant variation in how energy justice is framed. It has been classified as concept, a tool, a theory, a framework, and a principle, through phrases such as ‘emerging concept and frame’³⁴, ‘novel conceptual tool’,³⁵ and ‘crosscutting social science research agenda which seeks to apply justice principles’³⁶ to the energy sector. Even within a single contribution, energy justice can be framed in different ways. For instance, Sovacool and others describe energy justice as a conceptual framework, a conceptual tool, and an analytical tool in their 2017 article for Energy Policy.³⁷

Similar definitional and explanatory diversity can be observed in terms of what energy justice seeks to do and how it functions. In general, energy justice is thematically geared towards understanding the energy sector in light of ideas of social justice and, more broadly, morality and ethics.³⁸ It is often framed as a concept (or a tool, theory, or framework) that identifies where, how, and why injustices emerge in the energy sector and how they can be remedied and reduced.³⁹ Energy justice has also been described as an attempt to apply social justice concepts and principles to global energy systems.⁴⁰ For instance, distributional justice directs research to focus on people or areas that are disproportionately affected by energy activities or the lack of energy. Similarly, the treatment of procedural justice issues in energy justice literature is attentive of processes that enable or restrict participation and representation in the energy sector.⁴¹

Perhaps due to this definitional and explanatory diversity, energy justice has been heavily criticised and intensely debated in the literature. McHarg, for instance, has argued that ‘energy justice literature is still in its infancy’ and that ‘claims about the greater academic rigour and clarity of the concept, as compared to the related ideas of environmental and climate justice, do not always stand up to scrutiny’.⁴² Heffron has vehemently pushed back, referring to such criticism as ‘a straw-man argument’ with ‘no purpose’ that indicates what is referred to as ‘sour grapes’.⁴³

In the context of this definitional and explanatory diversity, analysis of the energy justice literature shows that it is primarily used for two distinctive purposes. First, energy justice has a descriptive purpose. In this function, it has been described to provide ‘a framework to perceive disparities in our energy system’⁴⁴ or to identify ‘the (in)justice impacts of energy policy decisions’.⁴⁵ It is a descriptive and explanatory framework to better understand the phenomena that emerge in the energy sector.

Second, and more importantly from the point of view of this article, energy justice has a clear normative purpose and is frequently used in a normative sense. Its normative properties are well reflected in analyses arguing that energy justice can ‘highlight the moral and equity dimensions of energy production and use’⁴⁶ and accordingly inform and guide not only energy consumers and producers but also policy and decision-making.⁴⁷ Energy justice is recommended or pushed as a principle, goal, or ideal to guide not only energy consumers and energy companies but also policymakers, legislators, and regulators.⁴⁸ These forms of utilisation of energy justice highlight its role as a normative objective and an ideal to strive towards. It has even been argued that energy justice can ensure that activities throughout the energy value chain ‘do not infringe on basic civil liberties and that communities are meaningfully informed and represented in energy decisions’.⁴⁹

However, notions of energy justice cannot be enforced or integrated in energy law decisions because of its academic and policy-oriented nature. Human rights law could provide energy justice with a legal framework through which to integrate energy justice into law. In particular, the normative purpose of energy justice connects directly with human rights law in the energy sector. This is the focus of the next section.

3 Human Rights in the Energy Sector

3.1 Energy as a Human Right

Energy is fundamental to all human activities. Basic human needs such as clean water, cooking and nourishment, adequate housing, modern healthcare, contemporary agriculture, communication, and transportation are all entirely dependent on access to affordable energy.⁵⁰ Human rights in the energy sector can therefore be used in two ways: to refer to energy as a human right in and of itself and to refer more broadly to human rights law’s application to the energy sector and its impact in that context. The next subsection focuses on the latter, while this subsection analyses the ways in which energy could be understood as a human right and how such a right could be justified.

The point of departure for energy as a human right is the lack of legally binding human rights norms specific to energy. That is to say, despite the dependence of basic human needs on energy, international human rights treaties are silent on energy matters. Some have argued that access to energy is a human right and should be acknowledged as such, like the right to water, which is likewise not explicitly established as a human right in international human rights law.⁵¹ Given the lack of legal foundations, claiming energy as a human right has invited criticism.⁵² Indeed, there is no consensus in academic literature on what the right to energy would mean or how it should be understood, particularly given the lack of an institutional or legal basis in international law. Without a clear legal or institutional setup, energy as a human right could comprise a broad range of requirements, from supply obligations and ensuring affordable energy prices to guaranteeing a minimum level of infrastructure to allow access to energy networks.⁵³

The only treaty that acknowledges access to energy as a human right is the 1979 Convention on the Elimination of All Forms of Discrimination Against Women. The Convention includes an obligation for contracting parties to take all appropriate measures to eliminate discrimination against women in rural areas and to ensure, among other things, that they have the right to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport, and communications.⁵⁴ Given the Convention’s limited scope of application and energy’s marginal role within it, it only captures a fragment of the diversity of issues related to energy as a human right. Similarly, access to energy has played a key role in the interpretation of existing human rights obligations in only a few cases.⁵⁵ In light of these narrow mentions of energy in the international human rights regime, it is no wonder that research has recognised a gap between international human rights law and the fundamental human need for energy.⁵⁶ That is to say, while energy is fundamental to the enjoyment of many human rights, this is largely unacknowledged in the international human rights regime. The explicit role of energy in the international human rights regime can be described as modest at best.

The connection between energy and human rights can also be identified in the context of the UN’s Sustainable Development Goals (SDGs). While not legally binding, the 17 goals have several links to human rights law and explicitly ‘seek to realize the human rights of all’.⁵⁷ It has been aptly pointed out that ‘several goals and targets of the 2030 Agenda correspond to already existing individual human rights obligations’.⁵⁸ The seventh goal aims to ensure access to affordable, reliable, sustainable, and modern energy for all.⁵⁹ Although this goal does not feature human rights-based targets or indicators, it can be used to gain insight into and justify access to energy in a human rights context.⁶⁰ Furthermore, in July 2022, the UN General Assembly declared a healthy environment a human right.⁶¹ While not legally binding, this further solidifies the human rights connotations of the negative environmental impacts of energy production and consumption.

Because of the lack of foundations in international human rights law and the definitional ambiguity of energy in a human rights context, the understanding of human rights law in the energy sector is still in its infancy.⁶² The academic literature on energy as a human right has derived analogy from similar discussions regarding water and human rights,⁶³ and has built its analysis despite the lack of energy-specific references in legally binding human rights treaties.

Most academic literature in the nexus of energy and human rights law focuses on access to energy and energy services.⁶⁴ In this body of scholarship, a general consensus holds that access to energy is a precondition for the fulfilment of other treaty-based human rights; access to energy is thus not in itself a human right but it is a derived human right and justified on grounds of other rights. In other words, even though access to energy is not codified in human rights law (like the right to life, for example), it can be a prerequisite for the enjoyment of other human rights (such as the right to life, among other rights). This line of reasoning has been supported both in human rights scholarship⁶⁵ and on an institutional level.⁶⁶

Lack of access to energy is also often framed as a poverty issue,⁶⁷ which is widely acknowledged as a matter of human rights.⁶⁸ Energy poverty and fuel poverty have been understood as primarily socio-economic rights issues.⁶⁹ It has also argued that access to energy is ‘intrinsically related to the human rights requirement of substantive equality and the prohibition of discrimination’⁷⁰ and that without ‘recognizing energy access as a right, the production, consumption and distribution of energy will continue to lead to great harm and suffering, including human rights violations’.⁷¹

Despite this deep interconnection between access to energy and the fulfilment of certain human rights, energy cannot be considered a human right in and of itself. It is a derivative human right entirely reliant on its links with existing human rights obligations enshrined in international human rights law.⁷² Access to energy as a derivative human right should be understood separately from the application of human rights law in the energy sector, which is the focus of the next section.

3.2 The Application of Human Rights law in the Energy Sector

Activities in the energy sector have profound human rights implications, which can be divided into three conceptual categories. In the first category, the human rights implications of energy activities arise from having too little or no energy, which impacts basic human needs such as clean water, nourishment, adequate housing, and modern healthcare. In this category, questions of energy access and energy poverty are central.⁷³

The second category encompasses the adverse human rights impacts associated with activities in the energy value chain. In the literature, this is sometimes framed as having ‘too much energy’.⁷⁴ That is to say, energy activities ranging from exploration and extraction to production and final consumption can and often do have negative consequences for the enjoyment of human rights. The impacts of global warming on the enjoyment of human rights constitute an illustrative example.⁷⁵

In fact, in seeking to ensure access to energy as a derived human right, the energy system may create negative human rights consequences elsewhere. For example, mining uranium for power nuclear plants can contaminate air, water, and soil and undermine the right to physical health.⁷⁶ More generally, the burning of fossil fuels for electricity, heating, cooling, and transportation threatens a wide range of human rights. Many energy activities have profound implications for the enjoyment of rights to life, food, water, freedom, housing, healthcare, and security.⁷⁷

The first and second categories show how activities in the energy sector can impact human rights. The focus of the third category is the opposite: it sheds light on how human rights law impacts the measures that can, cannot, or must be taken in the energy sector. For example, the governmental shutdown of fossil-fuel-based power production raises questions concerning the right to property. While human rights law can facilitate and even require more ambitious measures in the energy transition, such as those established in the well-known Urgenda and Shell cases,⁷⁸ it can also play a restrictive role in the design and implementation of energy law and policy and in judicial decisions made regarding the energy sector.

All three categories can appear in conventional energy systems that are dependent on fossil fuels but also in systems that are in transition towards renewable energy sources. For instance, the construction of wind parks can affect both agriculture (onshore) and aquaculture (offshore), impacting people’s freedom to choose an occupation, their right to engage in work, and their freedom to conduct a business. Similarly, the transition towards replacing fossil fuels with biofuels in transportation, for instance, can lead to fewer crops being available for food, threatening food security and consequently the very right to life.⁷⁹ In recent climate law scholarship, litigation based on these kinds of human rights claims has been dubbed ‘just transition litigation’: lawsuits that, deliberately or inadvertently, delay or even prevent measures to mitigate climate change.⁸⁰

In all three categories, the human rights implications of energy activities can be procedural as well as substantive. That is to say, energy decisions can impact not just the right to substantive human rights but also access to information, public participation in energy decision-making, access to justice, or the rights to an effective remedy and to a fair trial.⁸¹ Ensuring adequate rights to information and participation as well as access to justice and decision-making are often highlighted as key human rights issues in energy activities.⁸²

All three categories also resonate with discussions in climate and environmental law scholarship. In fact, Wewerinke and Doebbler have explored the interference of climate change with human rights law and suggested ‘a more systematic application of the human rights approach to climate change’.⁸³ The human rights implications of energy policies and climate policies often overlap. However, energy law scholarship also approaches the human rights implications of energy activities from perspectives other than environmental harm, thus framing energy-related human rights questions in a different way to climate law scholarship.⁸⁴ Furthermore, the link between climate change and human rights has a much more robust and longstanding institutional acknowledgment, where rights-based approaches to climate change and other environmental challenges have been widely recognised.⁸⁵ For instance, the UN Special Rapporteur on Human Rights and the Environment has consistently highlighted that climate change threatens and violates various human rights.⁸⁶ It has been rightly highlighted that while there is a ‘strong foundation for integrating human rights in efforts to combat climate change and to support sustainable development’, ‘the global energy system has not taken rights or justice into account, and as a result, it may create more problems than it solves’.⁸⁷ In 2021, the Human Rights Council adopted a resolution to establish a Special Rapporteur on the promotion and protection of human rights in the context of climate change, increasing its focus on the human rights impacts of climate change.⁸⁸ In its first report, energy and in particular the need to phase out fossil fuels played a prominent role.⁸⁹

Choice of energy source impacts not only the efficacy of measures to limit climate change and protect the environment, but also the extent to which the enjoyment of human rights can be guaranteed. In practice, however, the vast majority of core issues in the energy sector – from the exploration and production of primary energy sources to the transmission and trade of energy and final energy consumption – are regulated through energy law rather than human rights law. Because of this, the content and interpretation of energy law is key to understanding and facilitating the enjoyment of human rights in the energy sector. This intrinsic link is acknowledged in the first report of the Special Rapporteur on the promotion and protection of human rights in the context of climate change.⁹⁰ Among other things, it insists that states must take regulatory measures to limit emissions of greenhouse gases and mitigate climate change in order to protect all persons from human rights harms. As a specific example of this kind of measure, the report mentions the need to repeal the Energy Charter Treaty, which allows fossil fuel producers to sue states for compensation if they take positive policy actions to reduce the use of fossil fuels.⁹¹ Such connections between human rights law and energy law exemplify the need to take energy law into account during the application of human rights law in the energy sector. It is impossible to achieve the core tenets of energy justice without an understanding of the interaction between energy law and human rights law in the energy sector.

The human rights implications of energy activities and access to energy as a precondition to ensure other human rights seem highly homogeneous with the issues analysed in the energy justice literature. The nexus between these two research traditions is next explored to demonstrate how human rights law could be used to provide energy justice with a legally binding context.

4 Placing Energy Justice in a Human Rights Context

International human rights are enshrined in a legally binding normative framework. In the energy sector they are invoked and interpreted in legal and legally binding contexts at international, regional, national, and local levels. Whether entrenched in international human rights law or codified in national constitutions, human and fundamental rights are an integral part of the legal system applicable to the energy sector. Energy justice is not.⁹² Energy justice is mostly used as a concept in academic contexts and, to a limited extent, as a guiding principle in policymaking to assess the energy sector and gain insight into its phenomena from a social justice perspective. Because of these fundamental differences, a simple comparison between the two would be artificial at best. However, particularly when used as a normative framework and for a normative purpose, energy justice shares key characteristics with how human rights in the energy sector are understood; human rights could provide energy justice with a legal (rather than purely academic or policy-focused) framework for its operationalisation.

First and foremost, both energy justice and human rights in the energy sector highlight the role of morality and ethics and direct attention towards the adverse effects of the energy sector on human life and especially the most vulnerable.⁹³ Human rights offer a normative framework that underlines the need for ‘transformative, structural change to reduce disparities and challenge power imbalances’⁹⁴ in the energy sector. Energy justice, similarly, is used to identify and rectify injustices that emerge in the energy sector for vulnerable individuals, disadvantaged communities, and marginalised groups and to ensure that the energy transition is pursued in a way that does not create additional injustices and inequalities. The potential of this shared notion is limited by the respective scopes of energy justice and human rights law. While both energy justice and human rights in the energy sector are grounded in ideals of ethics and morality, energy justice is energy-specific while human rights law has general application also beyond the sector. This means that human rights obligations emerging from the right to property, for example, can also prevent measures needed to achieve energy justice.

Second, neither energy justice nor human rights in the energy sector are absolute; they often involve the balancing of competing or mutually contradictory objectives and values. Energy justice scholarship has rightly shown that ‘energy justice issues do not exist in black or white’ and that ‘there is no single, or even identifiable, immediate “winner,” nor an immediate, discernible “loser”’ but ‘bundles or constellations of winners and losers, and even “pro-justice” interventions can create some type of inequality, even when they offer net societal benefits’.⁹⁵ Similar balancing of competing interests can be identified in human rights discourses. While some human rights, such as freedom from torture, are irrevocably inviolable and expressed in absolute terms, many human rights are not.⁹⁶ Indeed, an abundance of jurisprudence recognises limitations on human rights.⁹⁷ Limiting human rights on grounds of public order or national security are examples of this. Furthermore, the wording of many human rights treaties acknowledges the relativity of some rights by prohibiting ‘arbitrary’ or ‘unreasonable’ limitations on them.⁹⁸ In practice, this means that non-arbitrary and reasonable limitations are permissible. Human rights may also need to be balanced against one another, as exemplified by the friction between freedom of expression and freedom of religion.⁹⁹

Finally, the literature on human rights in the energy sector and energy justice overlaps fundamentally in situations where energy justice is viewed as a normative framework and a goal to strive towards. In environmental justice scholarship, it has been argued that recognising the common ground between social justice discourses and human rights ‘does not require a radical redefinition’ of international law.¹⁰⁰ The same can be said in the context of energy justice and human rights law in the energy sector. Normative recommendations based on energy justice fail to be influential in a legal context if they remain solely academic. The legally binding nature of human rights law could lend ‘legitimacy and authority’¹⁰¹ to normative claims made in energy justice discourses. This could also be a way of addressing critiques of energy justice for its ‘academic hyper-activity and hyper-innovation’¹⁰² and for its failure to ‘to engage in the hard intellectual labour of developing properly grounded and defensible theoretical claims or thinking through the implications of securing just energy decisions in practice’.¹⁰³

Giving normative recommendations on the basis of energy justice could essentially be understood as the more prudent application of human rights in the energy sector, both in the design and making of law and policy and in judicial decision-making. Most importantly, from a legal point of view, understanding the substantive overlap between energy justice discourses and human rights discourses could give energy justice a justiciable avenue. The legally binding nature of human rights law could be used by courts to decide on matters that improve justice in the energy sector. In other words, human rights law could provide energy justice discourses with a normative instrument or legally binding weapon¹⁰⁴ for transformative politics¹⁰⁵ to correct injustices recognised in energy justice scholarship.

5 Conclusions

The purpose of this article was to initiate dialogue between energy justice and human rights research by exploring energy justice in the context of human rights law. The article first explained what energy justice is and how it has been perceived in energy research within and beyond legal scholarship. The analysis demonstrated a diversity of ways in which energy justice is framed and how it functions. One of these functions is to provide a normative framework to be adhered to by consumers and companies as well as by legislators and policymakers. The analysis also showed that while the core tenets of the energy justice literature have become widely accepted, they have not provided an enforceable or justiciable framework through which to improve the adverse effects of the energy sector on human life.

To address this lack of a legally binding context for energy justice, the article then conceptualised the human rights discussion in the energy sector, finding that energy is commonly understood as a derivative human right that is a precondition for the fulfilment and enjoyment of other treaty-based human rights. More importantly from the point of view of giving energy justice a legally binding framework, human rights in the energy sector can also be understood more broadly as the application of human rights law to the energy sector and its impact in that context. The human rights implications of energy activities can emerge from either having little or no energy or from having so much energy production and consumption that it has adverse effects on the enjoyment of human rights. Human rights in the energy sector can also be understood as a legally binding framework within which action in the sector is either encouraged or restricted.¹⁰⁶

Finally, the article bridged the gap between research conducted in respect of energy justice and that conducted in respect of human rights in the energy sector. It showed the overlap between these two bodies of literature and demonstrated how energy justice, when perceived as a normative concept that should guide policy and law-making and judicial decision-making, can find legally binding form in contexts in which human rights implications are taken into consideration in designing legislation for the energy sector or when human rights law is applied in judicial decision-making. These kinds of voices have been raised in climate law scholarship, which has argued in favour of rights-based climate action to mould global climate policies.¹⁰⁷ Yet similar discussions are still absent in energy law scholarship and in energy justice literature more broadly.

To find synergies between the rich bodies of research conducted in the spheres of both energy justice and human rights law, the overlap between the two research traditions should be acknowledged in energy research and energy law scholarship. This could assist in moving energy justice scholarship forward and in finding legally binding support for normative claims made on the basis of energy justice.

Acknowledgement

I wish to thank Annalisa Savaresi and the anonymous reviewers for their helpful comments on earlier versions of this article.

Disclosure Statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by the Academy of Finland (340998).

Notes

1 Donald M Zillman, Alastair Lucas and George (Rock) Pring, Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources (Oxford University Press 2002); Adrian J Bradbrook and Judith Gail Gardam, ‘Placing Access to Energy Services within a Human Rights Framework’ (2006) 28 Human Rights Quarterly 389; Stephen Tully, ‘The Contribution of Human Rights to Universal Energy Access’ (2006) 4 Northwestern Journal of International Human Rights 518; Adrian J Bradbrook, Judith G Gardam and Monique Cormier, ‘A Human Dimension to the Energy Debate: Access to Modern Energy Services’ (2008) 26 Journal of Energy & Natural Resources Law 526.

2 Zillman, Lucas and Pring (n 1); Bradbrook and Gardam (n 1); Bradbrook, Gardam and Cormier (n 1); Stephen Tully, ‘The Human Right to Access Electricity’ (2006) 19 The Electricity Journal 30; Tully, ‘The Contribution of Human Rights to Universal Energy Access’ (n 1).

3 Ben Christman and Hannah Russell, ‘Readjusting the Political Thermostat: Fuel Poverty and Human Rights in the UK’ (2016) 2 Journal of Human Rights in the Commonwealth 1.

4 Damien Short and others, ‘Extreme Energy, “Fracking” and Human Rights: A New Field for Human Rights Impact Assessments?’ (2015) 19 The International Journal of Human Rights 697.

5 Christina Demski and others, ‘Acceptance of Energy Transitions and Policies: Public Conceptualisations of Energy as a Need and Basic Right in the United Kingdom’ (2019) 48 Energy Research & Social Science 33.

6 Jenny Sing-hang Ngai, ‘Energy as a Human Right in Armed Conflict: A Question of Universal Need, Survival, and Human Dignity’ (2012) 37 Brooklyn Journal of International Law 579.

7 Margaretha Wewerinke-Singh, ‘A Human Rights Approach to Energy: Realizing the Rights of Billions within Ecological Limits’ (2022) 31 Review of European, Comparative & International Environmental Law 16. Recently, the Journal of Human Rights and the Environment published a special issue, edited by Dr Annalisa Savaresi, which focuses entirely on human rights law and climate litigation (see Issue 13 of 2022). Similarly, the Review of European, Comparative and International Environmental Law published a special issue on ‘Human Rights and the Climate Crisis’ (see Issue 1 of 2022).

8 On energy, see for example. Donald K Anton and Dinah Shelton, Environmental Protection and Human Rights (Cambridge University Press 2011) 1–115.

9 Benjamin K Sovacool and others, ‘New Frontiers and Conceptual Frameworks for Energy Justice’ (2017) 105 Energy Policy 677.

10 Stefan Bouzarovski and Neil Simcock, ‘Spatializing Energy Justice’ (2017) 107 Energy Policy 640; Darren McCauley, Energy Justice: Re-Balancing the Trilemma of Security, Poverty and Climate Change (1st ed. 2018, Palgrave Macmillan 2018).

11 Benjamin K Sovacool and Michael H Dworkin, ‘Energy Justice: Conceptual Insights and Practical Applications’ (2015) 142 Applied Energy 435.

12 Peter S Wenz, Environmental Justice (State University of New York Press 1988); Raphael J Heffron and Darren McCauley, ‘The Concept of Energy Justice across the Disciplines’ (2017) 105 Energy Policy 658; Aileen McHarg, ‘Energy Justice: Understanding the “Ethical Turn” in Energy Law and Policy’ in Iñigo del Guayo and others (eds), Energy Justice and Energy Law (Oxford University Press 2020).

13 World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future, U.N. Doc. A/42/427 (Aug. 4, 1987).

14 Chian-Woei Shyu, ‘A Framework for “Right to Energy” to Meet UN SDG7: Policy Implications to Meet Basic Human Energy Needs, Eradicate Energy Poverty, Enhance Energy Justice, and Uphold Energy Democracy’ (2021) 79 Energy Research & Social Science 102199.

15 Wewerinke-Singh (n 7) 17.

16 Raphael J Heffron, ‘Energy Multinationals Challenged by the Growth of Human Rights’ (2021) 6 Nature Energy 849.

17 Kirsten Jenkins, ‘Setting Energy Justice Apart from the Crowd: Lessons from Environmental and Climate Justice’ (2018) 39 Energy Research & Social Science 117; McHarg (n 12).

18 For example, Sovacool and others (n 9) 677.

19 Sovacool and Dworkin (n 11).

20 Darren McCauley and Raphael Heffron, ‘Just Transition: Integrating Climate, Energy and Environmental Justice’ (2018) 119 Energy Policy 1, 1.

21 Michael Carnegie LaBelle, ‘In Pursuit of Energy Justice’ (2017) 107 Energy Policy 615.

22 The environmental justice discourse has its origins in the 1970s. On early publications, see Wenz (n 12).

23 For example Gordon Walker, Environmental Justice: Concepts, Evidence and Politics (Routledge 2012).

24 IPCC, 2022: Climate Change 2022: Mitigation of Climate Change. Contribution of Working Group III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, www.ipcc.ch/report/ar6/wg3/, 142–143 (last visited 18 April 2023).

25 Thomas Muinzer, ‘Challenges in Research Approaches to the “Just Energy Transition” in Legal Studies and Other Branches of the Social Sciences’, Journal of World Energy Law & Business (2022); Edouard Morena, ‘Securing Workers’ Rights in the Transition to a Low-Carbon World: The Just Transition Concept and Its Evolution’ in Sébastien Duyck, Sébastien Jodoin, and Alyssa Johl (eds), Routledge Handbook of Human Rights and Climate Governance (Routledge 2018) 293–294; Simone Abram and others, ‘Just Transition: A Whole-Systems Approach to Decarbonisation’ (2022) 22 Climate Policy 1033; McCauley and Heffron (n 20).

26 World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future, UN Doc. A/42/427 (Aug. 4, 1987). In literature, see Antoine Halff, Benjamin K Sovacool and Jon Rozhon, Energy Poverty: Global Challenges and Local Solutions (Oxford University Press 2014).

27 Natascha van Bommel and Johanna I Höffken, ‘Energy Justice within, Between and Beyond European Community Energy Initiatives: A Review’ (2021) 79 Energy Research & Social Science 102157.

28 Bouzarovski and Simcock (n 10).

29 Benjamin K Sovacool and others, ‘Energy Decisions Reframed as Justice and Ethical Concerns’ (2016) 1 Nature Energy 16024.

30 For a summary, see Kirsten Jenkins, Darren McCauley and Alister Forman, ‘Energy Justice: A Policy Approach’ (2017) 105 Energy Policy 631.

31 McHarg (n 12).

32 Gordon Walker, ‘Beyond Distribution and Proximity: Exploring the Multiple Spatialities of Environmental Justice’ (2009) 41 Antipode 614; Carmen G Gonzalez, ‘Environmental Justice, Human Rights, and the Global South’ (2015) 13 Santa Clara Journal of International Law 151.

33 McHarg (n 12) 20–21.

34 Bouzarovski and Simcock (n 10).

35 Sovacool and Dworkin (n 11) 435.

36 Kirsten Jenkins and others, ‘Energy Justice: A Conceptual Review’ (2016) 11 Energy Research & Social Science 174.

37 Sovacool and others (n 9).

38 Sovacool and Dworkin (n 11); Sovacool and others (n 9).

39 Jenkins and others (n 36) 174.

40 Sovacool and others (n 9) 677.

41 Jenkins and others (n 36) 175.

42 McHarg (n 12) 30.

43 Raphael J Heffron, ‘Energy Law in Crisis: An Energy Justice Revolution Needed’ (2022) Journal of World Energy Law & Business 169.

44 LaBelle (n 21) 615.

45 Noel Healy and John Barry, ‘Politicizing Energy Justice and Energy System Transitions: Fossil Fuel Divestment and a “Just Transition”’ (2017) 108 Energy Policy 451, 451.

46 Sovacool and others (n 9).

47 Sovacool and Dworkin (n 11); Sovacool and others (n 9); McHarg (n 12).

48 McHarg (n 12) 16–17.

49 Sovacool and Dworkin (n 11) 441.

50 Wewerinke-Singh (n 7); Tully, ‘The Human Right to Access Electricity’ (n 2) 34.

51 Stephen Tully, ‘The Human Right to Access Clean Energy’ (2008) 3 Journal of Green Building 140; Bradbrook and Gardam (n 1); Gordon Walker, ‘The Right to Energy: Meaning, Specification and the Politics of Definition’ (2016) Europe en Formation 26. On the right to water specifically, see Erik B Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31 Ecology Law Quarterly 957; Mara Tignino and Makane Moïse Mbengue, ‘Climate Change at the Crossroads of Human Rights: The Right to a Healthy Environment, the Right to Water and the Right to Development’ (2022) 31 Review of European Community & International Environmental Law 3. Literature on the right to water has recognised both the pros and the cons of considering water as a human right, with critiques pointing out that ‘a proliferation of human rights bears the danger of undermining the cause of recognised human rights’. Inga T Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation (Hart Publishing 2012), at 9.

52 Lars Löfquist, ‘Is There a Universal Human Right to Electricity?’ (2020) 24 The International Journal of Human Rights 711, 718. In the context of the environment, see Alan Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471, 471–472.

53 Stefan Bouzarovski, Energy Poverty: (Dis)Assembling Europe’s Infrastructural Divide (Springer Open 2018) 41–73.

54 Article 14 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, 1249 UNTS 13, art. 14 (entered into force 3 Sept. 1981).

55 For an overview of some of these cases, see Bradbrook and Gardam (n 1).

56 Löfquist (n 52) 712.

57 The United Nations, Transforming Our World. The 2030 Agenda for Sustainable Development (2015).

58 Markus Kaltenborn, ‘Introduction’ in Markus Kaltenborn, Markus Krajewski and Heike Kuhn (eds), Sustainable Development Goals and Human Rights (Springer International Publishing 2020) 2.

59 See United Nations, 7th Sustainable Development Goal, Affordable and Clean Energy: Ensure Access to Affordable, Reliable, Sustainable and Modern Energy for All, https://unstats.un.org/sdgs/report/2021/goal-07/ (last visited 18 April 2023).

60 Wewerinke-Singh (n 7) 17.

61 In short, see United Nations, UN General Assembly declares access to clean and healthy environment a universal human right. 28 July 2022, available at https://news.un.org/en/story/2022/07/1123482 (last visited 18 April 2023).

62 See similar criticism in Wewerinke-Singh (n 7) 17.

63 Winkler (n 51); Bluemel (n 51).

64 Shyu (n 14) 102157.

65 Löfquist (n 52) 711.

66 For example, Opinion No 27 of the European Group on Ethics in Science and New Technologies for the European Commission, An Ethical Framework for Assessing Research, Production and Use of Energy (Jan. 16, 2013), available at https://op.europa.eu/s/v6nR (last visited 18 April 2023).

67 For example, Wewerinke-Singh (n 7) 18–19; Christman and Russell (n 3).

68 Thomas Pogge, Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford University Press 2007). In the context of energy specifically, Bradbrook and Gardam (n 1) 392.

69 Christman and Russell (n 3) 7; Lucy A Williams, ‘Towards an Emerging International Poverty Law’ in Lucy A Williams (ed), International Poverty Law: An Emerging Discourse (Zed Books 2006) 6–7.

70 Wewerinke-Singh (n 7) 18–19.

71 Allison Silverman, ‘Energy Justice: The Intersection of Human Rights and Climate Justice’ in Sébastien Duyck, Sébastien Jodoin and Alyssa Johl (eds), Routledge Handbook of Human Rights and Climate Governance (Routledge 2020) 254.

72 Bradbrook and Gardam (n 1) 405; Silverman (n 71) 253.

73 On different approaches to energy poverty, see Dominic J Bednar and Tony G Reames, ‘Recognition of and Response to Energy Poverty in the United States’ (2020) 5 Nature Energy 432; Christian E Casillas and Daniel M Kammen, ‘The Energy-Poverty-Climate Nexus’ (2010) 330 Science 1181; Fateh Belaïd, ‘Implications of Poorly Designed Climate Policy on Energy Poverty: Global Reflections on the Current Surge in Energy Prices’ (2022) 92 Energy Research & Social Science 102790.

74 Paul Wilkinson and others, ‘A Global Perspective on Energy: Health Effects and Injustices’ (2007) 370 The Lancet (British edition) 965; Sovacool and others (n 29) 1; McHarg (n 12) 15.

75 See United Nations, A Report of the Special Rapporteur on Human Rights and the Environment, A/74/161, 18; United Nations General Assembly, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 19 July 2018, A/73/188 and United Nations, Report of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, 26 July 2022, A/77/226.

76 Doug Brugge and Virginia Buchner, ‘Health Effects of Uranium: New Research Findings’ (2011) 26 Reviews on Environmental Health 231.

77 Heffron (n 16) 849. In the context of climate law, see Siobhan McInerney-Lankford, ‘Climate Change and Human Rights: An Introduction to Legal Issues’ (2009) 33 The Harvard Environmental Law Review 431, 436–437.

78 See Staat der Nederlanden v. Stichting Urgenda ECLI:NL:GHDHA:2018:2591, 20 December 2019 and Milieudefensie and others v Royal Dutch Shell plc ECLI:NL:RBDHA:2021:5339, 26 May 2021. For an overview of rights-based climate litigation, see Annalisa Savaresi and Joana Setzer, ‘Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers’ (2022) Journal of Human Rights and the Environment 7.

79 Rosamond L Naylor and others, ‘The Ripple Effect: Biofuels, Food Security, and the Environment’ (2007) 49 Environment: Science and Policy for Sustainable Development 30.

80 Savaresi and Setzer (n 78) 28–30.

81 Svitlana Kravchenko, ‘Procedural Rights as a Crucial Tool to Combat Climate Change’ (2009) 38 Georgia. Journal of International & Comparative Law 613; Eva Brems and Laurens Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’ (2013) Human Rights Quarterly 176.

82 Donald M Zillman, Alastair Lucas and George (Rock) Pring, Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources (Oxford University Press 2002).

83 Margaretha Wewerinke and Curtis Doebbler, ‘Exploring the Legal Basis of a Human Rights Approach to Climate Change’ (2011) 10 Chinese Journal of International Law 141, 142.

84 Compare for instance, to Angus Johnston and Henrik Bjørnebye, ‘EU Energy Law and Fundamental Rights’ (2022) 551 Marius 127 and Margaretha Wewerinke, ‘The Role of the UN Human Rights Council in Addressing Climate Change’ (2014) 8 Human Rights & International Legal Discourse 10.

85 Silverman (n 71) 254; Felix Kirchmeier and Yves Lador, ‘From Copenhagen to Paris at the UN Human Rights Council When Climate Change Became a Human Rights Issue’ in Sébastien Duyck, Sébastien Jodoin and Alyssa Johl (eds), Routledge Handbook of Human Rights and Climate Governance (Routledge 2020) 145.

86 United Nations, A Report of the Special Rapporteur on Human Rights and the Environment, A/74/161, 18.

87 Silverman (n 71) 251–252.

88 United Nations, Mandate of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, 4 October 2021, A/HRC/48/L.27.

89 United Nations, Report of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, 26 July 2022, A/77/226.

90 Ibid.

91 Ibid., 5–6 and 21.

92 Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press 2002) 159.

93 Dinah Shelton and Siegfried Van Duffel (eds), ‘Moral Philosophy’, The Oxford Handbook of International Human Rights Law (Oxford University Press 2013). On distinguishing between human rights and morality and ethics, see John H Knox, ‘Human Rights Principles and Climate Change’ in Kevin R Gray, Richard Tarasofsky and Cinnamon P Carlarne (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press 2016) 214.

94 Inga T Winkler and Carmel Williams, ‘The Sustainable Development Goals and Human Rights: A Critical Early Review’ (2017) 21 The International Journal of Human Rights 1023, 1024.

95 Sovacool and others (n 9) 674.

96 Jayawickrama (n 92) 182.

97 Ibid., at 183.

98 Ibid.

99 Malcolm D Evans, ‘From Cartoons to Crucifixes: Current Controversies Concerning the Freedom of Religion and the Freedom of Expression before the European Court of Human Rights’ (2010) 26 The Journal of Law and Religion 345.

100 Neil AF Popovic, ‘Pursuing Environmental Justice with International Human Rights and State Constitutions’ (1996) 15 Stanford Environmental Law Journal 338, 340.

101 Winkler (n 51) 8.

102 McHarg (n 12).

103 Ibid., 30.

104 Gonzalez (n 32) 157.

105 Wewerinke-Singh (n 7) 18.

106 Niko Soininen and others, ‘A Brake or an Accelerator? The Role of Law in Sustainability Transitions’ (2021) 41 Environmental Innovation and Societal Transitions 71.

107 Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (Hart 2019).