Socio-Economic Human

Rights in Essential Public

Services Provision

There is a clear overlap between securing socio-economic human rights for

all persons and arranging adequate access to essential public services across
society. Both are necessary to realise thriving, inclusive societies, with adequate
living standards for all, based on human dignity. This edited volume brings
together the two topics for the first time. In particular, it identifies the common
challenges for essential public services provision and socio-economic human
rights realisation, and it explores how socio-economic rights law can be har-
nessed to reinforce better access to services. An important aim of this book is
to understand how international socio-economic human rights law and guide-
posts can be used and strengthened to improve access to services, and assess
socio-economic legal and policy decisions.
The volume includes contributions from different continents, on a range of
different services, and engages with the realities of different regulatory settings.
After an introduction that sets out the most important challenges for universal
access to services – including sufficient resources mobilisation, private actor
involvement and regulation, or the need for improved checks and balances –
the book goes on to discuss current issues in services provision and socio-
economic rights, as well as exploring the place and role of private business
actors in the provision of services. In particular, it assesses how the responsibility
and accountability of such actors for human rights can be improved. The final
part of the book narrows in on the under-explored human rights concepts of
‘participation’ and ‘accountability’, as essential prerequisites for better ‘checks
and balances’. Overall, this volume presents a unique and powerful illustration
of how socio-economic human rights law supports improved access to essential
public services for all.
Marlies Hesselman is Lecturer in Public International Law at the Faculty of
Law of the University of Groningen, the Netherlands, and concluding PhD
research on universal access to modern energy services.
Antenor Hallo de Wolf is Assistant Professor of International Law and Human
Rights Law at the Faculty of Law of the University of Groningen, the
Netherlands, and a former visiting fellow of the Human Rights Implementation
Centre at the University of Bristol, UK.
Brigit Toebes is an Associate Professor and Rosalind Franklin Fellow at the
Faculty of Law of the University of Groningen, the Netherlands.
Human Rights and International Law
Series Editor: Professor Surya P. Subedi, OBE

This series will explore human rights law’s place within the international legal
order, offering much-needed interdisciplinary and global perspectives on human
rights’ increasingly central role in the development and implementation of
international law and policy.
Human Rights and International Law is committed to providing critical and
contextual accounts of human rights’ relationship with international law theory
and practice. To achieve this, volumes in the series will take a thematic approach
that focuses on major debates in the field, looking at how human rights impacts
on areas as diverse and divisive as security, terrorism, climate change, refugee
law, migration, bioethics, natural resources and international trade.
Exploring the interaction, interrelationship and potential conflicts between
human rights and other branches of international law, books in the series
will address both historical development and contemporary contexts, before
outlining the most urgent questions facing scholars and policymakers today.

Available titles: Socio-Economic Human Rights in

Human Rights and Charity
Law
International Perspectives
Kerry O’Halloran
Human Rights and Development
in International Law
Tahmina Karimova
The Emerging Law of Forced
Displacement in Africa
Development and Implementation of
the Kampala Convention on Internal
Displacement
Allehone M. Abebe
Business and Human Rights
History, Law and Policy – Bridging
the Accountability Gap
Nadia Bernaz
Extracting Accountability
from Non-State Actors in
International Law
Assessing the Scope for Direct
Regulation
Lee McConnell
Essential Public Services Provision
Marlies Hesselman,
Antenor Hallo de Wolf and
Brigit Toebes
Forthcoming titles:
Adoption Law and Human Rights
International Perspectives
Kerry O’Halloran
The Right to Truth in
International Law
Victims’ Rights in Human Rights
and International Criminal Law
Melanie Klinkner and Howard Davis
Tax Havens and International
Human Rights
Paul Beckett
About the Series Editor:
Professor Surya P. Subedi, OBE,
is Professor of International Law,
University of Leeds, member of the
Institut de Droit International and
former UN Special Rapporteur for
human rights in Cambodia.
Socio-Economic Human
Rights in Essential Public
Services Provision

Edited by Marlies Hesselman,

Antenor Hallo de Wolf
and Brigit Toebes
First published 2017
by Routledge
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© 2017 selection and editorial matter, Marlies Hesselman, Antenor
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A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Hesselman, Marlies, editor. | Hallo de Wolf, Antenor, editor. |
Toebes, Brigit C. A., editor.
Title: Socio-economic human rights in essential public services
provision / edited by Marlies Hesselman, Antenor Hallo de Wolf,
and Brigit Toebes.
Description: Abingdon, Oxon [UK] ; New York : Routledge, 2017. |
Series: Human rights and international law | Includes bibliographical
references and index.
Identifiers: LCCN 2016029643| ISBN 9781138669659 (hbk) |
ISBN 9781315618081 (ebk)
Subjects: LCSH: Human rights—Social aspects. | Human rights—
Economic aspects. | Public welfare—Law and legislation.
Classification: LCC K3240 .S6329 2017 | DDC 344.03—dc23
LC record available at https://lccn.loc.gov/2016029643

ISBN: 978-1-138-66965-9 (hbk)

ISBN: 978-1-315-61808-1 (ebk)

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Contents

Notes on contributors viii

Foreword xi

1 Common challenges for socio-economic human rights

and essential public services provision 1
MARLIES HESSELMAN, ANTENOR HALLO DE WOLF AND
BRIGIT TOEBES

PART I
Socio-economic human rights for essential public services
provision: trends and issues 21

2 Reconciling international obligations and local realities:

provision of pain control medication in resource-constrained
countries – experiences from Uganda 23
MARIE ELSKE C. GISPEN

3 The right to health and TRIPS: access to essential medicines

and patenting in India 44
JENNIFER SELLIN

4 Access to water services: the World Bank and water rights 65

MÓNIKA AMBRUS

5 Is cutting people’s electricity off ‘cut off’ from the ratione

materiae jurisdiction of the CJEU and the ECtHR? 83
PANOS MERKOURIS

6 Disaster management in EU law: solidarity among

individuals and among States 103
MAURO GATTI
vi Contents
PART II
The role of private actors in essential public services provision 121

7 EU public service obligations and their potential for

human rights protection 123
IRIS HOUBEN AND HETTY TEN OEVER

8 Private providers of essential public services and de jure

responsibility for human rights 139
LOTTIE LANE

9 Pharmaceutical companies and intellectual property

protection: human rights actors or recipients? 160
SHAMISO PHILOMINA ZINZOMBE

10 The responsibility of business enterprises to restore access

to essential public services at resettlement sites 180
LIDEWIJ VAN DER PLOEG, FRANK VANCLAY AND IVO LOURENÇO

PART III
Participation and accountability for essential public services
provision 203

11 ‘Participation’ for all? Challenges and tools to realise

participation for vulnerable persons with a focus on
health services 205
TITTI MATTSSON

12 Mobilising public participation as a requirement of the

right to health in the context of China’s air pollution 222
HUANLIN LANG

13 Individual inputs and collective outputs: understanding

the structural benefits of individual litigation on
healthcare in Brazil 241
DANIELLE DA COSTA LEITE BORGES

14 Access to effective remedies for the protection of human

rights in essential public services provision in Colombia 256
JIMENA MURILLO CHÁVARRO

15 The media’s role in ensuring social accountability for

the right to health in China 275
YI ZHANG
 Contents vii
PART IV
Conclusion 297

16 International guideposts for essential public services

provision and socio-economic human rights 299
MARLIES HESSELMAN, ANTENOR HALLO DE WOLF AND
BRIGIT TOEBES

Index 328
Contributors

Mónika Ambrus is senior researcher at the Institute for Legal Sciences,

Hungarian Academy of Sciences, and managing editor of the Netherlands
Yearbook of International Law. One of her main research fields concerns
legal designs in international water law at different levels of water governance.
Danielle da Costa Leite Borges is associate professor at Rio de Janeiro Law
School of FundaçãoGetulio Vargas. She holds a PhD in law and a master’s
degree from the European University Institute. She also holds a master’s de-
gree in public health from the Brazilian School of Public Health
(ENSP/FIOCRUZ) and a BA in law from Rio de Janeiro State University
(UERJ). Her research interests include health and human rights law, health
systems and policies, and EU law.
Mauro Gatti, PhD in EU law (University of Bologna – University of
Strasbourg), is Adjunct Professor at the Law School of the University
of Bologna. His research interests include international disaster law, EU
external relations law and human rights.
Marie Elske C. Gispen, LLM (Utrecht), is a PhD researcher at the Netherlands
Institute of Human Rights (SIM) at Utrecht University. She is also senior
research associate at the International Centre on Human Rights and Drug
Policy of Essex University (UK). Her research interests include human
rights law, international health law, drug control, access to medicines,
bioethics, socio-economic rights, realisation of rights and development.
Dr Antenor Hallo de Wolf wrote his doctoral dissertation on human rights
and privatisation of public tasks and services. He is currently teaching
international and human rights law at the faculty of law of the University
of Groningen. Aside from a general interest in international law and
international human rights law, he is also fascinated by issues related to
regulation of non-State actors, the provision of essential public services,
the prevention of torture, and the use of new institutional mechanisms to
guarantee human rights at the national level.
Marlies Hesselman teaches various courses on public international law at the
University of Groningen, and is finishing a dissertation on ‘universal access
 Contributors ix
to modern energy services and human rights’. Her main research interests
concern international and regional socio-economic human rights law, in
particular as linked to the global economy and sustainable development. Her
publications are predominantly in the area of socio-economic rights, disasters,
energy access/SDG 7.1 and climate change.
Iris Houben is a Senior University Lecturer, Civil Law section, Institute for
Private Law at Leiden Law School. The central theme in her current research
is the interaction between (sector-specific) public law and contract law. In
2015, she published a monograph on innominate contracts.
Lottie Lane, LLM, is a PhD candidate at the Groningen Center for Law and
Governance at the University of Groningen. She is an active junior member
of the Netherlands School of Human Rights Research. Her PhD research
focuses on the horizontal effect of human rights from a law and governance
perspective.
Dr Huanlin Lang obtained her PhD degree at the Department of
Administration Law and Public Administration, University of Groningen,
in 2014, on the topic Public Participation in Environmental Decision-
Making in China: Towards an Ecosystem Approach, and is now working in
the International School, Tianjin Medical University. Her research focuses
on environmental law, medical law and the interrelationship between
environment and health.
Ivo Lourenço holds a master’s degree in economics from the University of Cape
Town, and has been working for about 10 years in company-community
relations and resettlement for several mining companies in Mozambique.
Titti Mattsson is Professor of Law and Co-Director of the Research Environ-
ment Law and Vulnerabilities at the Faculty of Law, Lund University. Her
research concerns legal and human rights issues related to children, elderly,
healthcare, e-services, bioethics, and research regulation. She is currently
involved in several national and international healthcare research projects,
is a board member of the Swedish Research Council and is an advisory legal
expert for the Ombudsman for Children in Sweden. Mattsson is the
European Association of Health Law Contact for Sweden and a member of
the advisory board of the same association.
Panos Merkouris is an Assistant Professor of International Law at the
University of Groningen. He holds a PhD from Queen Mary, University
of London, in public international law. His research interests include law of
treaties, sources of international law, interpretation, and environmental law.
Dr Jimena Murillo Chávarro obtained her PhD in law, focusing on the human
right to water, at Ghent University, where she is currently an affiliated
researcher at the Department of European, Public and International Law.
She also holds a Master (LLM) in International and European Environmental
and Energy Law at the Catholic University of Leuven. Her main research
x Contributors
topics are related to human rights, particularly the human right to water
and economic, social and cultural rights, environmental law, and international
water law.
Hetty ten Oever (LLM) is a PhD candidate and Junior Lecturer in the Civil
Law section, Institute for Private Law, at Leiden Law School. Her main
research interests include interaction between (European) health law and
contract law. She is currently working on a dissertation on contracts between
Dutch health insurers and healthcare providers.
Lidewij van der Ploeg is a PhD student at the Department of Cultural
Geography at the Faculty of Spatial Sciences, University of Groningen. She
is studying the human rights impacts of business enterprises, and her research
is specifically focused on displacement and resettlement in Mozambique.
Jennifer Sellin is an assistant professor at the department of international and
European law of the Faculty of Law, Maastricht University. Her research
focuses on economic, social and cultural rights, particularly the right to health
and access to medicines. In addition, she teaches various courses in the field
of international law and European law.
Brigit Toebes is Associate Professor and Rosalind Franklin Fellow at the
Department of International Law at the University of Groningen, and the
director of Global Health Law Groningen (GHLG), which she established
in 2015. Her own research focuses on the field of international health law,
whereas through GHLG she is concerned with access to affordable
medicines, the global rise in non-communicable diseases, and tobacco
control regulation. She is Co-Chair of the Global Health Law Committee
of the International Law Association and Member of the Board of the Dutch
Society for Health Law.
Frank Vanclay is Professor of Cultural Geography in the Faculty of Spatial
Sciences, University of Groningen. His main research topics are social impact
assessment and human rights impact assessment, as well as the rights of
Indigenous peoples.
Dr Shamiso Philomina Zinzombe B. Soc. Sci, LLB, LLM cum laude,
obtained her PhD at the Institute of Health Policy and Management,
Erasmus University Rotterdam in 2016, on the topic The Right to Health,
Pharmaceutical Companies and Intellectual Property: Access to Medicine
(2015, School of Human Rights Research Series). Her interests include the
right to health, the right to science, corporate actors and human rights.
Yi Zhang, LLM, is currently a PhD student at the International Law
Department and Global Health Law Research Centre of the University of
Groningen, the Netherlands. Zhang is also a junior member of the Nether-
lands School of Human Rights Research. Her PhD research deals with
accountability for the implementation of the right to health in China.
Foreword
Magdalena Sepúlveda Carmona
Former United Nations Special Rapporteur on
Extreme Poverty and Human Rights (2008–2014)

In recent decades, there has been a significant decline in global poverty. Yet,
despite progress globally, poverty remains unacceptably high and the results of
reduction efforts uneven. Far too many persons have been left out of inclusive
development. While the top 1 per cent are becoming increasingly richer, people
living in poverty have to endure appalling living conditions. People living in
poverty continue to suffer the impact of the global financial crisis that began
in 2008. Yet, governments continue to implement cuts in welfare systems and
the rolling back of essential services. The negative impact on the enjoyment of
human rights of these austerity measures is increasingly being acknowledged.
Arguably, a common characteristic of those living in poverty, in particular
women, youth, older persons, persons with disabilities, indigenous peoples,
minorities and other vulnerable and disadvantaged groups, is that they fail to
access a range of essential public services such as clean water, sanitation,
electricity, housing, medicines, healthcare, education, day-care centres, adequate
roads and transportation, as well as adequate information and communication
services. Lack of access to these essential services has an enormous impact on
their lives. Often, access to essential services is needed for personal development,
the fulfilment of human capabilities and to ensure people are treated with
dignity. Moreover, access to essential public services is critical to equitable
redistribution of wealth, social cohesion and achievement of gender equality
and the empowerment of all women and girls.
From this perspective, it is certainly not difficult to see the very intimate
links between access to universal essential public services and the full enjoyment
of human rights, in particular economic, social and cultural rights. Yet, until
now, this link has not been comprehensively explored in academic literature
or by practitioners.
This volume seeks to fill this gap. It explores the nexus between ‘essential
public services provision’ and ‘socio-economic human rights law’, at the
international, national and regional levels. In seeking to answer a practical
question – What does it take to provide essential public services to all people?
– this book identifies a range of cross-cutting challenges for universal provision
of services. For example: How to mobilise sufficient resources to provide
essential services for all? How to reach the most disadvantaged and vulnerable
xii Foreword
groups? Which groups are most prone to being left out? How to ensure
responsibility sharing, nationally or internationally? How can inclusiveness
be guaranteed? How to ensure that States’ budgets are allocated to improve
service provision? What are the roles and responsibilities of private service
providers?
The volume addresses all these important practical questions by using the
international human rights law framework. It thereby contributes to the much-
needed exercise of further standard setting in this area. Taking into account a
range of different services, and emphasising particular challenges, across different
countries and regions, each of these essential services is placed in the light of
human rights law.
The volume contains valuable insights on the applicability and operational-
isation of human rights norms to the regulation, planning and governance of
public services. By doing so, it responds to critical questions such as: What
are the implications of the obligation of ‘progressive realisation’ regarding
the provision of essential services? What are the qualitative standards that the
provision of essential services has to meet to be human rights-compliant? How
to ensure non-discriminatory access? What is the role of public participation
and accountability in ensuring service access as a matter of human rights law?
I highly recommend this book to anyone working for the implementation
of the 2030 Agenda for Sustainable Development. The Sustainable Develop-
ment Goals and targets emphasise the critical role of essential services to end
poverty, fight inequality and injustice, and tackle climate change. This book is
a timely contribution to better understand how human rights law can and
should play a key role in improved services provision for all.
1 Common challenges for
socio-economic human
rights and essential public
services provision
Marlies Hesselman, Antenor Hallo de Wolf
and Brigit Toebes*

Access to essential public services, including safe drinking water, healthcare,

energy, roads, transportation, sanitation or environmental services, is a key
condition for leading a life in human dignity and well-being.1 Access to basic
services in a reliable, affordable and adequate manner lies at the core of fostering
healthy, inclusive and sustainable societies. It is no doubt for this reason that
the United Nations’ ‘Sustainable Development Goals’ now stress the need to:

[. . .] by 2030 ensure that all men and women, particularly the poor and
the vulnerable, have equal rights to economic resources, as well as access
to basic services, ownership, and control over land and other forms of
property, inheritance, natural resources, appropriate new technology, and
financial services including microfinance.2
[emphasis added]

* This volume is the result of a productive Seminar Series, entitled ‘Human Rights in Essential
Public Services Provision’, organised by the editors at the University of Groningen in 2014
with support of the Groningen Centre for Law & Governance, the research programmes ‘Public
Interests and Private Relationships’ and ‘Public Trust and Public Law’, and the Groningen
Centre for Energy Law of the Faculty of Law. It included a call for papers, seven themed
seminars, and many fruitful discussions with contributors to this volume and other participants.
We are very thankful for all the input that we have received for the project and for this book.
Special thanks go out to Tony Prosser, Maria Stuttaford, Claire Methven O’Brien, Eduardo
Arenas Catalán and Mark Bovens.
1 P. J. Brook and S. M. Smith, Contracting for Public Services: Output-Based Aid and Its
Applications (World Bank 2001) ix; UN Habitat, ‘International Guidelines on Access to Basic
Services for All’ (7 January 2009) UN Doc HSP/GC/22/2/Add. 6 and HSP/GC/22/2/
Add. 6/Corr.1/Rev.1, Annex, para 1: ‘[b]asic services contribute to the fulfilment of human
sustenance, human dignity, quality of life and sustainable livelihoods’. See also C. Graham,
‘Socio-Economic Rights and Essential Services: A New Challenge for the Regulatory State’,
in D. Oliver, T. Prosser and R. Rawlings (eds), The Regulatory State: Constitutional Implications
(Oxford University Press 2010) 158.
2 UN General Assembly Resolution 70/1, ‘Transforming Our World: The 2030 Agenda for
Sustainable Development’ (25 September 2015) UN Doc A/RES/70/1, SDG 1.4, at 15.
2 Marlies Hesselman et al.
Indeed, the harsh reality is that, 15 years after the Millennium Development
Goals (MDGs) were adopted, large parts of the world population still lack access
to even some of the most basic essential public services. For example, 700
million people worldwide lack access to clean water, 2.5 billion persons have
no access to adequate sanitation,3 40 per cent of the current world population
lacks access to modern energy services,4 and large parts of the global population
fail to obtain access to providers of essential medicines, including those for
even basic pain treatment.5 The United Nations Human Development Index
calculates, moreover, that well over 1.5 billion persons globally live in ‘multi-
dimensional poverty’.6 This means that large parts of the global human
population are left behind on the path to inclusive development, better living
conditions or even basic human rights enjoyment. This is clearly unacceptable;
inequalities nationally and internationally need to be addressed with urgency.
In this book, we present the first comprehensive analysis of two important
interrelated human development and sustainable development agendas: (i) the
provision of essential public services to all persons; and (ii) the protection of basic
socio-economic human rights law. Essential public service provision (EPSP) and
basic human rights protection clearly have shared socio-economic objectives,
yet, remarkably, the academic literature and policy debates about EPSP have
not explored the opportunities for mutual reinforcement, to date, in depth.
This edited volume actively engages with this nexus between EPSP and
human rights protection, with a special emphasis on socio-economic human
rights (ESR) law. The volume identifies practical common challenges for EPSP.
It also provides an initial framework for understanding how socio-economic
human rights guideposts can help achieve better EPSP, in order to improve living
standards and access to basic goods and services for all. In this introduction,
we first of all set out a range of tough common challenges for EPSP, as they
appear from the literature, from policy practice, and certainly as they appear
from the various contributions to this book.
In respect of the latter, the contributions to this book offer rich, different
perspectives: they discuss EPSP and ESR in different geographical areas and
for different essential services, taking into account different disciplinary
perspectives and approaches. The volume includes country studies on Uganda,
India, China, Brazil, Sweden, Mozambique and Colombia, and to some extent
Greece. It also includes inquiries into the challenges and opportunities of
regulating EPSP and ESR at and across various levels, including perspectives
on the EU, Council of Europe, World Bank, World Trade Organization or

3 See Chapter 4 by Ambrus, or figures of UN Water at www.unwater.org/water-cooperation-

2013/water-cooperation/facts-and-figures/en/.
4 Figures via United Nations Sustainable Energy for All Initiative, www.se4all.org/our-vision_our-
objectives_universal-energy, and also new Sustainable Development Goal 7.1.
5 See Chapter 3 by Sellin, Chapter 2 by Gispen, or Chapter 9 by Zinzombe.
6 Human Development Index and Multi-Dimensional Poverty Index via http://hdr.undp.org/
en/content/multidimensional-poverty-index-mpi.
 Common challenges for ESR and EPSP 3
international drug control framework. Equally, the contributions span different
types of services, such as healthcare access, medicines provision, electricity access,
water services access, disaster management services or environmental services.
They are drafted by persons from different disciplinary backgrounds, and at
least two contributions include field research.7
In this introduction, we focus on extrapolating and situating the different
challenges for EPSP and ESR enjoyment. The first challenge we put up for
discussion is trying to define what it actually means to ensure ‘EPSP’ in the
first place (section 1). Second, we move on to the need to balance interests
and prioritise EPSP and ESR in decision-making (section 2); the challenge
of resources mobilisation and allocation for EPSP (section 3); the challenge of
universal access and inclusivity (section 4); and the challenge of checks and
balances (section 5). Our concluding chapter will gather up the threads, and
in particular also suggest how and which socio-economic human rights
guideposts can be harnessed to regulate EPSP further. In that chapter, we also
offer a further research agenda.

1. Defining ‘essential public services provision’

A first practical challenge for discussing EPSP and ESR is the need for a
definition of what EPSP might entail. What do we mean by or expect from
EPSP? Who is involved and who is affected? What is required? On the topic
of ESR, we note that we primarily draw from the international human rights
framework, and the International Covenant on Economic, Social and Cultural
Rights (ICESCR) in particular.8 However, other chapters may draw on other
treaties or on national law, and make comparisons to international law.
Unfortunately, a common definition of the term ‘essential public services
provision’ is not readily available. This is clear from the various chapters to this
volume in which authors either adopted our working definition, or provided
their own based on the legal context they studied (e.g. EU definitions or
constitutional definitions of EPS).9
The following sections highlight some of the different possible understand-
ings of ‘EPSP’, and discuss in particular: (i) the nature of ‘publicness’ in EPSP;
(ii) the ‘essential’ quality of EPSP; and (iii) the meaning of ‘services’ as such.
In addition, we stress that provision always signifies a continuous and active
engagement on the part of responsible service providers to ensure that the
service is available, accessible, acceptable and of good quality.10 At the end of
this section, a working definition of EPSP for this volume is proposed.

7 Chapters by Gispen and Van der Ploeg et al.

8 International Covenant on Economic Social and Cultural Rights (adopted by General Assembly
resolution 2200A (XXI) on 16 December 1966, entered into force 3 January 1976) 993
UNTS 3.
9 See chapters by Houben and ten Oever or Murillo Chávarro in this volume.
10 On these criteria (the AAAQ), see our concluding chapter.
4 Marlies Hesselman et al.
1.1. Defining ‘public’ services
Defining the ‘public’ nature of ‘essential public services provision’ is a first hurdle,
because what distinguishes a ‘public’ service from a ‘private’ service exactly? A
number of observations are in order here, for example as suggested by Houben
and ten Oever in Chapter 7 of this volume, the European Commission con-
siders that the ‘public nature’ (as opposed to ‘private’ nature) of EPSP may
depend on the following questions: (a) Is the service offered to the general
public at large? (b) Is the service assigned a clear specific public interest or
purpose? (c) Is the service subject to particular ownership or status of the entity
providing the service (a public entity)?
Of course, in many cases, these various qualities might overlap. For example,
when public authorities provide vaccinations to all members of the public, or to
all young children, in the larger interest of public health and/or for the protection
of the health of those persons, we see an overlap of all three qualities.
On the contrary, access to electricity or access to water services may be
supplied by a private provider, but the delivery of these services may still need
to be universal in nature, to all members of the public, and for the benefit of
all these members individually and for the public interest at large.11 Such
requirements are typically referred to as ‘universal service obligations’ (USOs).12
In this case, the ‘publicness’ of the service is thus defined mostly by qualities
(a) and (b), but not by (c), because the service provider is a private party. In
fact, especially when ‘private service providers’ are involved, the imposition of
certain ‘universal service obligations’ through regulation by the State can reflect
the concerns of ‘publicness’ of the service, or its ‘essential nature’. The Inter-
American Court of Human Rights considered illustratively, in the case of
Ximenes-Lopez v Brazil, that:

[r]endering public services implies the protection of public interests, which

is one of the objectives of the State. Though the States may delegate the
rendering of such services, through so-called outsourcing, they continue
being responsible for providing such public services and for protecting the
public interest concerned.13

Hence, the ‘public interest or purpose’ of the service is an important

qualifying factor in determining whether a service is a ‘public service’. As a
result of this definition, all services with a demonstrable ‘public interest’, and

11 E.g. A. MacBeth, International Economic Actors and Human Rights (Routledge 2010) 152:
‘[. . .] a change in the identity of the service provider of a particular service naturally does not
alter the importance of that service to the realization of human rights’.
12 See A. Hallo de Wolf, ‘Human Rights and the Regulation of Privatized Essential Services’
(2013) 60 Netherlands International Law Review 165, 187–189.
13 Case of Ximenes-Lopes v Brazil, Judgment of 4 July 2006 (Merits, Reparations and Costs),
IACtHR, Series C No. 149, para 96; A. Hallo de Wolf, Reconciling Privatization with Human
Rights (Intersentia 2012) 144–145; Hallo de Wolf (2013) 175–176.
 Common challenges for ESR and EPSP 5
as are necessary to fulfil human rights, even if privately delivered, are brought
within the legitimate regulatory sphere of government authorities.14
At the same time, our understanding of the ‘private’ or ‘public’ nature of a
service might change over time, or with the situation. A few good examples
of services that may typically be considered ‘private services’ are ‘private taxi
services’, ‘high-quality broadband Internet services’, or accessing a certain set
of ‘TV channels’. These are also offered by private providers generally, and
typically not necessarily in the wider public interest; in short, we do not assume
that all individuals should be able to have access to these services in their
daily lives. A good example of the ‘public’ variant of ‘private taxi services’ might
be ‘public transport’. The latter is offered in the public interest (mobility,
transportation, safety) to all members of the public and often by State
authorities, although not always. Yet, at the same time, private taxi services can
be subject to regulation by the State as well (e.g. when taxi services fulfil
particular public interests and needs, such as in emergencies, or transportation
of handicapped persons). Especially in situations where ‘public transport’ is not
(sufficiently) available or adequate (e.g. in certain geographical locations and/or
at night), it could be considered appropriate for the State to step in and regulate
an otherwise ‘private’ service in the public interest. The State can ensure
accessibility for the public by imposing restrictions on the price or prohibit the
denial of customers’ access to the car. Common-law countries have developed
a number of legal doctrines to deal with these issues, including the doctrines
of ‘common callings’, ‘common carriage’, ‘businesses affected with a public
interest’, and the doctrine of ‘prime necessity’. Broadly speaking, these concepts
require the providers of essential services (suppliers of ‘prime necessities’) to
supply these services to all who need them for a fair and reasonable price, in
sufficient quantity and quality and in a non-discriminatory way, in particular if
the providers have a dominant or monopoly position.15 Gatti, in Chapter 6,
describes how a rationale of basic human rights protection may lead private
ambulance services to become publicly regulated in case of disaster management,
which is aimed at saving lives and protecting victims of disaster. Similarly,
Lane, in Chapter 8, posits that the ‘Internet’ (of various speed and quality) is
increasingly understood as a human right, or in any event as an ‘essential public
service’, in present-day society, which could require some type of public interest
regulation, including universal service obligations. The Internet is related to
the right to education, access to information, freedom of expression and
meaningful participation in society.16

14 Also see MacBeth (2010) 152–153.

15 Hallo de Wolf (2012) 541–542. See also, in general, M. Taggart, ‘The Province of
Administrative Law Determined?’ in M. Taggart (ed.), The Province of Administrative Law
(Hart Publishing 1997) 6–8.
16 O. De Schutter, ‘Corporations and Economic Social and Cultural Rights’, in E. Riedel, G.
Giacca and C. Golay, Economic, Social and Cultural Rights in International Law: Contemporary
Issues and Challenges (OUP 2014) 204–208.
6 Marlies Hesselman et al.
In any case, understandings of the ‘public interest’ of certain services may
be fluid, and change over time or with the situation. It appears, though, that
human rights concerns and standards will inform our understanding of what
constitutes an essential ‘public’ service, subject to a requirement of ensuring
access for all. In this sense, we certainly underscore that while markets could
play a useful role in delivering services to the public (e.g. because they are more
efficient, knowledgeable or have resources), the notion of EPSP implies that
services delivery needs to meet certain quality and universality standards to
truly serve the whole public and the public interest. Some might challenge the
role and appropriateness of the market in EPSP and human rights outright;
however, we take a somewhat less radical proposition in this volume, posing
that free markets are useful but may need to be reigned in and controlled
in the public interest, including based on human rights standards, when
EPSP fails. The contributions by Gatti, Houben and ten Oever, and Merkouris,
demonstrate how the EU, as an economic, free-market union traditionally, has
become concerned with regulating EPSP, in line with human rights as well.
Similar developments seem underway within the World Bank, as discussed by
Ambrus.
Finally, it is possible to argue that another, overarching public interest is met
by taking human rights law into account in EPSP, namely the public interest
in observing international legal human rights law by the State. Such an
observation alone can also give rise to essential services regulation in the public
interest, even if service provision is in the hands of a private actor.17 The human
rights guideposts that could, and to some extent should, be used to guide and
inform EPSP regulation are further discussed in the concluding Chapter 16.

1.2. Defining ‘essential’

The ‘essential’ nature of ‘essential public services provision’ is also an important
consideration, because there could be various shades of ‘urgency’ or ‘indispens-
ableness’ of services in the public realm. In our view, EPSP can be understood
as a prerequisite for protecting specifically vital interests of public order and/or
for collective or individual well-being and prosperity.18 Therefore, healthcare
services, clean water access, sanitation and waste treatment, electricity, roads, tele-
communication, clean air, but also, arguably, a well-functioning judiciary, well-
trained military/police forces, prisons and independent media services, are among
the most basic services that people in society may need access to. Some of these
essential public services might directly serve to protect the lives of individuals
(e.g. disaster management services, emergency healthcare, clean air), while others
are ‘indispensable’ to attain a basic or adequate standard of living, or ensure that
all persons can participate, develop and prosper in society inclusively and fully.

17 Hallo de Wolf (2013) 185.

18 See also Graham (2010) 158.
 Common challenges for ESR and EPSP 7
As will be stressed in Chapter 16, these ideas on EPSP also resonate very much
with the ideas on ‘progressive’ and ‘full’ realisation of ESR or the ‘right to
development’. In short, arguably, ‘essential’ services are those that fulfil a pressing
need for development and should be equally accessible to all.

1.3. Defining ‘services’

The Oxford English Dictionary defines ‘services’ as ‘a system supplying a public
need such as transport, communications, or utilities such as electricity and
water’. Especially this reference to a system of supply is important, since we
have to acknowledge that most EPSP requires substantial organisation for a
service to be provided. In many areas of EPSP, such as electricity or water
access, but also healthcare, medicines, disaster management, or different types
of civil and political bureaucracy, a whole system (or network) of facilities,
resources, goods and services is needed to ensure that the service is available
and accessible.
In fact, the practical meaning of ‘services’ provision can be further debated
from different perspectives. One question is whether ‘services’ provision includes
the offering, sale, or delivery of both tangible goods and intangible services.
In short, does it include access to actual foodstuffs, gallons of water, a house,
particular medicines, as well as access to a well-trained doctor or nurse, a teacher,
a registration system for social housing, access to medical information, access
to infrastructure for communication, and transportation or acceptable contracts
for water or electricity provision? In our view, it includes all these aspects,
because without these aspects the enjoyment of the services, and their benefits,
fails. That the coming together of all these aspects is a challenge in developing
countries in particular is particularly stressed in the chapter of Gispen on
Uganda, but also in other chapters.
A second question might be: Do ‘services’ represent mostly ‘material’ or
mostly ‘non-material’ interests to people (i.e. are services to be understood
as the delivery of ‘economic’ or ‘non-economic’ goods or services mostly, or a
mix of both)?19 The answers to such questions are important, as they can impact
our understanding of or preferences for the manner in which services are (to
be) delivered, realised or regulated (e.g. by whom, to whom, to which prin-
ciples, or under which conditions). Ambrus, in Chapter 4 on water services,
submits that ‘water’ is understood differently in different international insti-
tutions and ‘clusters’ of international law. Water can be understood (and is
regulated) as an important ‘social good or service’ (human rights law), as an
essentially ‘economic (or commercial) good or service’ (international economic

19 See also the contribution by Houben and ten Oever in Chapter 7. See, in general, U. Neergaard,
‘Services of General Economic Interest: The Nature of the Beast’, in Krajewski, Neergaard and
van de Gronden (eds), The Changing Legal Framework for Services of General Interest in
Europe: Between Competition and Solidarity (TMC Asser Press 2009) 17–50.
8 Marlies Hesselman et al.
law), or even as an ‘environmental good or service’ (in international environ-
mental law, or in GATS).20
The various chapters in this contribution certainly highlight the tensions
between the ‘social’ and ‘economic’ dimensions of many essential public
services. One example where this tension is very visible is essential medicines
provision, and the role of pharmaceutical companies therein.21 It seems that
the key is to acknowledge that, at least, many EPS fulfil or contribute to the
realisation of non-material interests of all people, while at the same time some
services, such as the provision of potable water and sanitation, the manufacturing
of, production, and distribution of essential medicines, as well as the generation
and distribution of energy, simply cost money and resources. They need to be
paid for. The aspect of resources mobilisation, and regulation of commercial
interests of private actors, is further discussed in section 3.

1.4. A working definition of EPSP

Despite the various different possible arguments and perspectives on defining
‘essential public services provision’, we submit that a number of common
elements can nevertheless be extrapolated. In fact, based on discussions above,
literature, the chapters in our volume, and documents from the human rights
framework, such as the Universal Declaration on Human Rights, we proffer
the following working definition for ‘essential public services provision’ in this
volume (Box 1.1).

Table 1.1 Working definition of EPSP

Essential public services are those services that perform an activity or provide a good or
service without which it would be difficult to realise/protect a vital public interest in
society, such as the protection of public health, general well-being, including an
adequate standard of living, public order, or poverty alleviation.
Essential public services are requisite for the fulfilment of essential individual interests
within the wider society as well, including those phrased as individual human rights
and the values that such rights protect (e.g. non-discrimination and protection of the
vulnerable, human dignity, subsistence rights, ‘liberté, egalité and fraternité’, and the
free development of the human personality).
Essential services therefore require universal availability, accessibility, acceptability, and
adequate quality of services for all members of the public. In case private actors are
involved in the delivery of the service, particular regulatory acts by the State vis-à-vis
private actors may be required to ensure such access.

20 See also CteeESCR, ‘General Comment 15 on the Right to Water’ (20 January 2003) UN
Doc E/C.12/2002/11, para 8: ‘Water should be treated as a social and cultural good, and
not primarily as an economic good’. See Hallo de Wolf (2012) 575–585.
21 See chapters by Zinzombe and Sellin.
 Common challenges for ESR and EPSP 9
2. Balancing interests and commitments
As already considered, to some extent, in the previous section, one challenge
of ensuring EPSP is certainly that States have to manage various (competing)
public and private interests at stake in the delivery of a service. They are likely
engaged in complex policy decisions in respect of regulation, resources
mobilisation and allocation, and in setting priorities in socio-economic planning
and regulation. While it is impossible to highlight all the different balancing
exercises that States may have to engage in, it is possible to underline two aspects.
First, competing demands on the State can come about at different regula-
tory levels, and involve a broad range of actors. This is certainly evident from
the chapters by Gispen and Sellin, who both highlight that States may have
subscribed to different international regulatory regimes, with different actors
involved (e.g. human rights law, WTO law, or international drug control
treaties). At first sight, these regimes may appear to make competing or con-
flicting demands of States that are difficult to reconcile. Nevertheless, both
authors are optimistic that it is possible to balance (competing) interests and
reconcile different types of obligations. Zinzombe writes in the context of pro-
tecting patents for pharmaceutical companies within the WTO and human rights
based medicines access, that in this area the debates about potential conflicts
of interests have been framed in terms ‘co-existence’ and ‘conflict’ schools of
thought. The ‘conflict’ school submits that when human rights ‘conflict’ with
other interests, the interests of human rights should be given primacy, because
of their essential nature. On the other hand, those from the ‘coexistence’ school
argue that – without apparently causing detriment to either framework – it is
possible to reconcile the interests of both regimes.
This leads to the second observation on ‘balancing’ and reconciling interests
in EPSP, namely: What is the place of human rights law in these debates? Does
human rights law present a trump card in debates on EPSP regulation? Is it even
sufficiently integrated in decision-making at present, whether as a matter of
binding law, or as a matter of primary policy principle? Of course, the debates
on ‘conflict’ and ‘coexistence’ might be observed in other areas of EPSP as
well (e.g. in ‘human rights and investment law’ debates),22 or per Gispen, in the
area of ‘human rights and drugs control’. The aspects of ‘balancing’, ‘conflict’
and ‘primacy’ are certainly areas that need more research. Alternatively, it is a
matter of political will and commitment, in particular a matter of committing
to human rights and EPSP over other interests.

3. Resources mobilisation and distribution

Realising EPSP, in a universal manner, to all members of the public, will require
a lot of resources, financially, technically or otherwise, including human

22 For some insights on this matter in the context of international investment arbitration related
to privatised water provision, and whether human rights obligations trump obligations flowing
from, for example, bilateral investment treaties, see Hallo de Wolf (2013) 199–200.
10 Marlies Hesselman et al.
resources and expertise, no matter how one looks at it. One of the great
challenges for EPSP is how to ensure, at all times, the availability of such sufficient
resources to deliver and provide essential services to all members of the public.
For a long while, socio-economic human rights law has battled with the myth,
but also with the realities, of the ‘costliness’ of realising ESR. These challenges
provided many persons with grounds to dispute the immediate or long-term
meaningfulness of such rights in the first place, in particular because they are
not readily enforceable or of a more ‘policy-oriented’ nature.23 At the same
time, the arguments of ‘costliness’ of ESR were effectively countered since the
1980s by scholars, activists and courts, particularly in response to their so-called
‘non-costly’ counterparts, civil and political rights.24
Indeed, it seems now commonly accepted – though still not sufficiently
stressed and understood in many cases – that civil and political rights are also
costly, or may have socio-economic implications.25 The maintenance of a well-
trained, well-equipped and well-functioning legal, judicial or administrative
system; providing State-funded legal aid; covering the costs of regular elections;
ensuring independent media broadcasting systems; maintaining well-trained
military and law enforcement forces, all require continuous mobilisation and
dedication of public resources.26 It is often pointed out in budget analyses that
large parts of national budgets are reserved to sustain military forces, rather
than ESR objectives.27 In some cases, ESR experts have urged a more balanced
spending towards socio-economic objectives in this respect, so as to foster
greater ESR enjoyment.28 A typical complaint about spending on socio-

23 See e.g. B. Saul, D. Kinley and J. Mowbray, The International Covenant on Economic, Social
and Cultural Rights: Commentary, Cases and Materials (OUP 2014) 134–136; I. Cismas, ‘The
Intersection of Economic, Social and Cultural Rights’, in E. Riedel, G. Giacca and C. Golay,
Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges
(OUP 2014) 460–461.
24 E.g. R. Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum
Available Resources” to Realizing Economic, Social, and Cultural Rights’ (1994) 16 Human
Rights Quarterly 693, 693–714.
25 See, for a discussion, P. Merkouris in this volume (Chapter 5).
26 E.g. A. Blyberg, ‘Government Budgets and Rights Implementation: Experience from Around
the World’, in J. Heymann, A. Cassola and M. Ashley Stein (eds), Making Equal Rights Real:
Taking Effective Action to Overcome Global Challenges (CUP 2012) 195–196. On the issue of
legal aid, see e.g. ECtHR judgment Airey v Ireland (1979) Series A no. 32.
27 See e.g. discussion by M. Ssjenyonjo, Economic, Social and Cultural Rights in International
Law (OUP 2009) 63–64.
28 Magdalena Sepúlveda, The Nature of The Obligations under the International Covenant on
Economic, Social and Cultural Rights (Intersentia 2003) 317, 334; UNHRC, ‘Report of the
Independent Expert on the Question of Human Rights and Extreme Poverty, Magdalena
Sepúlveda Carmona, on the Human Rights Based Approach to Recovery from the Global
Economic and Financial Crisis, with a Focus on Those Living in Poverty’ (17 March 2011)
UN Doc HRC/17/34 para 14; A. Chapman and S. Russell, ‘Introduction’, in A. Chapman
and S. Russell, Core Obligations: Building a Framework for Economic, Social and Cultural Rights
(Intersentia 2002) 11.
 Common challenges for ESR and EPSP 11
economic essential public services, especially as compared to civil and political
rights oriented services, is that lending requirements in structural adjustment
policies of international financial institutions required many resources to be cut
from socio-economic services, without ensuring that alternative resources were
brought in place.29 In short, spending on ESR took a back seat, even though
all essential public services require dedicated mobilisation and distribution of
resources.
In international human rights law, the acknowledgement that all human
rights require a mix of ‘positive’ and ‘negative’ State action, as well as regulation
of private actors, has led human rights law experts to support that all human
rights are subject to a so-called ‘tripartite typology’ of human rights obliga-
tions.30 It requires that all human rights, whether civil and political or ESR,
need to be ‘respected’, ‘protected’ and ‘fulfilled’ by the State, for all.31 The
obligation to 'respect' requires from States not to interfere in existing rights
enjoyment, while the obligation to 'protect' refers to an obligation to 'regulate'
human rights impacts of third (private) parties.32 The obligation to ‘fulfil’, in
particular, requires States to take active measures, to secure rights, including
resources mobilisation and distribution, when people cannot enjoy such rights
themselves, for any reason beyond their fault and control. A good example
of ‘fulfilling’ civil and political rights would be the requirement that States
provide legal aid to poor persons in court cases,33 or that they make available
and deploy police forces to protect demonstrators’ rights to free assembly and
speech.34 Merkouris, in Chapter 5, usefully demonstrates the developments in
this area under the European Convention on Human Rights, where it is
acknowledged that ‘there is no water tight division separating that [the socio-
economic] sphere from the field covered by the Convention’. At the same time,
Merkouris’ contribution also underscores the importance of ESR law in separate
frameworks, since treaties on civil and political rights cannot not deliver the
whole and full range of EPSP necessary for people to prosper.

29 Saul, Kinley and Mowbray (2014) 116.

30 H. Shue, Basic Rights, Subsistence, Affluence and US Foreign Policy (Princeton 1980) and H.
Shue, ‘The Interdependence of Duties’, in P. Alston and K. Tomaševski (eds), The Right to
Food (SIM 1984) 83–97; Ssjenyonjo (2009) 23–36.
31 Shue (1980); Shue (1984); UNCHR, ‘Final Report of the Special Rapporteur on the Right
to Food, Asbjørn Eide’ (18 July 1987) UN Doc E/CN.4/Sub.2/1987/23; Sepúlveda (2003)
157–165.
32 Idem and see further Hallo de Wolf (2013) 174–184 and Chapter 16.
33 Again, consider Airey v Ireland, and text to note 26.
34 This is also often mentioned as an example of the ‘obligation to protect’; however, after
the Brussels terrorist attacks in March 2016, peace protests had to be cancelled because the
demand for police officers to protect protesters could not be met, essentially affecting civil and
political rights due to a lack of resources. ‘Right-Wing “Hooligans” Battle Belgian Policy at
Shrine’ (CBS News, 27 March 2016) www.cbsnews.com/news/belgian-peace-march-canceled-
but-right-wing-hits-streets/.
12 Marlies Hesselman et al.
In this volume, we firmly break with some of the typical narratives in main-
stream human rights law about (public) resources for human rights in general,
and for ESR in particular. Importantly, we suggest, first of all, that any EPSP
will require substantial mobilisation and allocation of resources to ensure access
for all, no matter what service is involved. States should, in all cases, effectively
and actively seek ways to guarantee the availability of required resources to
ensure EPSP. This results, in part, from the indivisibility of human rights. States
have to actively regulate all relevant actors and activities within their territory
or subject to their jurisdiction, to the effect that sufficient resources are leveraged
and made available. If States manage to leverage and allocate a budget for the
military or law enforcement bodies, they should also be able to manage a budget
for other EPSP.35
Second, again breaking with the narrative that the provenance of resources
for EPSP always have to be fully ‘public’ (i.e. State resources), but also
underscoring that the State plays an essential role in leveraging resources, we
suggest that resources for EPSP can originate from many different sources in
society, as appropriate.36 They can come, respectively, from the State directly;
from individual (or groups of) end user(s) themselves (e.g. by pooling resources
or by paying some fee for the service directly); or from private (business) actors
who have become involved in the provision of the service, typically in the hope
of or with the expectation to see some return on their investments.37 The State
clearly has a mediating or regulatory role to play in all respects; in particular,
it has the responsibility to set the conditions (create an enabling environment)
for EPS delivery when needed, which could include setting maximum or
differentiated service fees;38 setting any conditions for disconnection or
continuity of service; it could tax companies and individuals directly on their
profit, income, wealth or consumption of non-essential goods to generate
resources for EPSP; or it can engage in socially responsible (concession)
contracts and require universal service obligations for investments and public
procurement; or it can require companies to provide services directly to

35 Saul, Kinley and Mowbray (2014) 147.

36 Chapman and Russell (2002) 11–12; Ssjenyonjo (2009) 62; Saul, Kinley and Mowbray (2014)
143. Also, UNGA, ‘Post 2030 Sustainable Development Agenda’ (2015), para 41.
37 A. Nolan, ‘Budget Analysis and Economic Social Rights’, in E. Riedel, G. Giacca and C. Golay
(eds), Economic, Social and Cultural Rights in International Law: Contemporary Issues and
Challenges (OUP 2014) 378–381; De Schutter (2014) 198–217; Hallo de Wolf (2013)
165–204; Marlies Hesselman, ‘Realizing Universal Access to Modern Energy Services: Exploring
Avenues for Private Stakeholder Accountability in International Human Rights Law and
Governance’, in A. McCann, M. van Rooij, A. Hallo de Wolf and A. Neerhof (eds), When
Private Actors Contribute to Public Interests (Eleven Publishing 2014) 107–130; see on this
point also further in Chapter 16.
38 Consider A. Kalra and Z. Siddiqui, ‘India Caps Prices of 36 More Drugs to Improve Access:
Government Official’ (Reuters 19 September 2014) www.reuters.com/article/us-india-drug-
prices-idUSKBN0HE11C20140919/. This point is revisited in Chapter 16.
 Common challenges for ESR and EPSP 13
employees or local communities in their immediate spheres of influence, which
can free up budget from the State, again subject to regulation and control as
may be required.39 Of course, resources might be available elsewhere as well,
including in times of need, such as from international financial institutions,
international organisations, other States, philanthropic entities, NGOs, or other
stakeholder groups that manage to leverage resources to support vulnerable
groups temporarily or permanently (e.g. refugees).40 In such cases, the State
may also have to play an enabling regulating role, or be ready to take over in
case respective actors no longer manage to provide access to these services.
That the latter is a particular challenge is clear from Chapter 10 by van der
Ploeg, Vanclay and Lourenço. They describe the great role that companies can
play in setting up EPSP in project-induced displaced communities, as paid for
by companies, but that there is a risk of fallback when the company takes up
and leaves and the State does not have any resources to continue the services
delivery. In such cases, very careful planning and regulation is necessary; or it
could be that alternative strategies for (additional) resources mobilisation need
to be followed.
Finally, individuals themselves also have resources to invest in EPSP directly,
for example by paying (differentiated) service fees for regularly needed services
(water access, electricity access, telephone connections), or they can also pool
and leverage private resources for EPS access by collectivising in contributory
insurance systems (as common for services where usage might be less predict-
able and/or the costs high, such as in the health sector, social security sector,
or legal aid insurance). Equally, (groups of) individuals may need access to
differentiated pricing, targeted subsidies or (micro) financing to afford upfront
connections or access costs to be able start enjoying the service (electricity or
water pipe connection).41 Again, in all these cases, States may have a regulatory
enabling role to play in setting up or regulating the requisite resources schemes,
even if they do not publicly own the resources themselves.
Importantly, however, any mix of regulatory tools for the mobilisation of
adequate resources for EPSP needs continuous (re)assessment of the suitability
of these tools for EPSP. Such considerations should primarily be based on the
condition of whether all members of society are indeed able to access the service
in an acceptable, affordable, reliable manner. In this sense, this volume builds
on work being done elsewhere on human rights and ‘State budgeting’, or on
human rights and investment. In fact, this book fits in very well with other
recent work that seeks to make human rights, and in particular ESR, more
practicable and central to ‘regulation’, ‘planning’, ‘budgeting’ and ‘governance’

39 On the opportunities and challenges of doing this, see the contribution of van der Ploeg, Vanclay
and Lourenço in Chapter 10, as well as Lane in Chapter 8.
40 See, for similar perspectives, UNGA, ‘Post 2030 Sustainable Development Agenda’ (2015),
para 41; also, Gatti in Chapter 6.
41 UN Habitat (2009) para 40 (a) and (b).
14 Marlies Hesselman et al.
again.42 All these efforts represent an attempt to move beyond the legalistic
discussions that long dominated the ESR scholarship, in particular their
comparison to civil and political rights and the strict enforceability (justiciability)
of ESR in courts. The purpose of this approach is to make ESR a much-needed
part of debates on development, public policy and decision-making again,
including specifically in the area of EPSP.43 This is not to say that these efforts
do not very usefully draw upon legal developments discussed in past decades,
such as the identification of more concrete obligations in the area of ESR, and
their justiciability.
Finally, a progressive taxation scheme for all actors in society may be one of
the most effective tools to ensure that sufficient resources are available for EPSP
at all times, and can be (re)distributed when and where needed.44 State-
controlled taxation schemes normally allow for popular control, participa-
tion and accountability for resources mobilisation and distribution.45 In fact,
progressive national and international taxation for inclusive development,
including international tax evasion, is getting more attention recently, also from
economists.46 As already stated, however, private business resources (in the
form of investments in EPSP) might be tapped more directly as well. Van der

42 See e.g. Nolan (2014) 369–390; A. Nolan et al. (eds), Human Rights and Public Finance:
Budgets and the Promotion of Economic Social and Cultural Rights (Hart 2013); R. O’Connell
et al., Applying an International Human Rights Framework to State Budget Allocations: Rights
and Resources (Routledge 2014); Blyberg (2012) 195; R. Bissio, ‘Budgets, Information and
Participation: Civil Society Approaches to Increasing Rights Accountability’, in J. Heymann,
A. Cassola and M. Ashley Stein (eds), Making Equal Rights Real: Taking Effective Action to
Overcome Global Challenges (CUP 2012); UNHRC, ‘Report of the Special Rapporteur on
Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona, on Taxation and Human
Rights’ (22 May 2014) UN Doc HRC/26/28; UNHCHR, ‘Report on Austerity Measures
and Social and Economic Rights’ (2013) UN Doc E/2013/82/EN; CteeESCR, ‘Letter from
CESCR Chairperson to States Parties in the Context of the Economic and Financial Crisis’
(16 May 2012) UN Doc CESCR/48yh/SP/MAP/SW; UNHRC, ‘Report of the Independent
Expert on the Question of Human Rights and Extreme Poverty’ (2011); Hallo de Wolf (2013);
Hans Morten Haugen, ‘Trade and Investment Agreements: What Role for Economic, Social
and Cultural Rights in International Economic Law?’, in E. Riedel, G. Giacca and C. Golay,
Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges
(OUP 2014) 227–259; Holger P. Hestermeyer, ‘Economic, Social and Cultural Rights in the
World Trade Organization: Legal Aspects and Practice’, in E. Riedel, G. Giacca and C. Golay,
Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges
(OUP 2014) 260–285.
43 See also Graham (2010) 169.
44 Saul, Kinley and Mowbray (2014) 144–145; UNHRC, ‘Report of the Special Rapporteur on
Extreme Poverty and Human Rights’ (2014).
45 UNHRC, ‘Report from the Special Rapporteur on Extreme Poverty and Human Rights’ (2014).
46 E.g. T. Piketty, Capital in the 21st Century (trans A. Goldhammer, Belknap Press Harvard
2014) 493–539; R. Neate and S. Bowers, ‘UK and European Allies Plan to Deal “Hammer
Blow” to Tax Evasion’ (The Guardian, 15 April 2016), www.theguardian.com/business/2016/
apr/14/uk-under-pressure-from-eu-states-over-beneficial-ownership-secrecy. Especially, the
recent affair of the ‘Panama Papers’ seems to lay bare the extent of tax evasion, and the need
to reign in such practices for the public good.
 Common challenges for ESR and EPSP 15
Ploeg et al., Lane, and Zinzombe all appraise the direct mobilisation and
allocation of private resources for EPSP.47 Gatti equally submits that private
commercial or non-commercial services might be regulated and mobilised in
the public interest. In many of these cases, there might be a prior or subsequent
need for State regulation. At the same time, human rights law and practice
also sees a growing discussion on the direct human rights responsibilities for
corporations as well.48 This can be especially relevant in the context of EPSP
and private service providers. What are their responsibilities and obligations
vis-à-vis service users directly?49
We conclude this section with the observation that control, participation and
accountability for EPSP, including the resources for EPSP, are key conditions
for adequate EPSP. Yet, we also observe that vulnerable people might not always
have their voices heard in decisions on how resources are mobilised and
redistributed, even in democratic systems; public taxation schemes, in particular,
depend on the choices for taxation, the subsequent allocation of resources, and
the adequate administration and enforcement of the taxation scheme. The
question is whether human rights standards can help inform budgeting for
the poor and vulnerable as well. We consider this in some greater detail in the
concluding chapter.

4. Universality and inclusiveness

Our definition of EPSP is premised on the idea of ‘universality’. It requires
‘access for all’, geared towards equal development opportunities for all. This
implies that the State and/or other relevant EPSP providers need to be actively
involved in assessing and ensuring that essential public services are at all times
sufficiently available, accessible, acceptable and of good quality to all members
in society who require them. Only when this is the case can the full public and
individual benefits of EPSP be reaped. Yet, how can this be ensured?50 How
can it be structurally assessed who in society is left behind, who is lacking access
to EPSP on par with others, and why?
In this section, we argue that exclusion from EPSP typically arises out of a
number of different conditions of ‘vulnerability’. These include: poverty and
the inability to pay for a certain service;51 personal circumstances that preclude

47 Van der Ploeg, Vanclay and Lourenço in Chapter 10; Zinzombe in Chapter 9.
48 See e.g. N. Jägers, Corporate Human Rights Obligations: In Search of Accountability (Intersentia
2002); N. Jägers and M. van der Heijden, ‘Corporate Human Rights Violations: The Feasibility
of Civil Recourse in the Netherlands’ (2008) 33(3) Brooklyn Journal of International Law
833–887, and more recently M. Addo, ‘The Reality of the United Nations Guiding Principles
on Business and Human Rights’ (2014) 14 Human Rights Law Review 133–147.
49 See e.g. Chapters 7–10 in this volume; Hallo de Wolf (2012) 193–195; De Schutter (2014).
50 See, for concerns over inequality and socio-economic human rights: G. MacNaugton, ‘Beyond
a Minimum Threshold: The Right to Social Equality’, in L. Minkler (ed.), The State of Economic
and Social Human Rights: A Global Overview (CUP 2013) 271.
51 See Hallo de Wolf (2012) 569.
16 Marlies Hesselman et al.
participation or enjoyment on par with others, such as age or disability; a lack
of access to information or education, in general or about a particular service
being available, or of importance, or how to obtain access to it (e.g. health
services, modern energy services, media services); physical geographical location
(i.e. remote rural areas or poor developing countries);52 or lack of representa-
tion/voice in relevant decision-making processes, including mechanisms for
regulation, participation and accountability, due to various reasons.53 Especially
the latter leads to poor decisions about resources mobilisation and allocation,
and poor access to services for ‘especially vulnerable groups’ such as women,
ethnic minorities, children, elderly, disabled persons, but potentially also for
developing nations more generally.54 Wilful discrimination against certain groups
in society is certainly also a reason for poor access, as are more difficult to grasp
local attitudes prevalent in society towards ‘vulnerability’.55
In understanding why some groups might be more disadvantaged than
others in accessing services, it is important to note that often more than one type
of vulnerability is at play simultaneously. Conditions of vulnerability, poverty and
lack of access to EPSP can all be mutually reinforcing as well. Indeed, ‘poverty’
is often ‘multi-dimensional’, and poverty, exclusion and vulnerability, in their
various manifestations, can be both cause and consequence of lack of
development opportunities.56 Murillo Chávarro, in Chapter 14, in this sense,
celebrates the exceptionally low thresholds to access local courts in Colombia
for all people, including poor people and people in remote areas, to complain
about their lack of EPSP access. She considers this a prerequisite for the success
of litigation on EPSP in Colombia. Without enabling support, it is well possible

52 See e.g. Gispen in Chapter 2. Challenges of access in remote areas are also common for ‘net-
work-based’ services, such as electricity access, public transport, or in some cases water access.
In addition, geographical location can also affect the need for services access in different way:
Lang considers, in Chapter 12, how people in Chinese cities struggle to access clean air in
polluted Chinese urban areas.
53 E.g. Mattsson and Zhang both highlight, in their respective chapters, how vulnerable persons
of a certain age or in remote areas of a country can benefit from improved avenues for
representation, participation and accountability (e.g. by Internet-based solutions or an
Ombudsperson). See also T. Prosser, The Regulatory Enterprise: Government, Regulation, and
Legitimacy (OUP 2010) 191–196.
54 Sellin, Gispen and Zinzombe, in Chapters 3, 2 and 9, respectively, describe the difficulties of
making medicines available in developing countries, and the sometimes strained negotiation
position of developing States in the international arena.
55 UNOHCHR, ‘Principles and Guidelines for a Human Rights Approach to Poverty Reduction
Strategies’ (2006) UN Doc HR/PUB/06/12, paras 29–33.
56 UNHRC, ‘Report of the Special Rapporteur on Extreme Poverty and Human Rights,
Magdalena Sepúlveda Carmona, on the Right to Participation of People Living in Poverty’
(11 March 2013) UN Doc A/HRC/23/35, paras 12–14; MacNaughton (2013) 274–266;
Saul, Kinley and Mowbray (2014) 144; see also M. A. Fineman, ‘The Vulnerable Subject:
Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law and Feminism
1, 11–19.
 Common challenges for ESR and EPSP 17
to remain trapped in underprivileged environments, and deprived of services
access.57
The concluding chapter outlines how the human rights framework certainly
offers relevant guideposts to improve inclusive EPSP, including without taking
recourse to courts necessarily.

5. Checks and balances for EPSP

The fifth and final common challenge for universal inclusive EPSP is a general
need for better ‘checks and balances’. What happens when access to EPSP
persistently or suddenly fails, or proves inadequate for certain people, or is simply
not available? How can society as a whole, or intended beneficiaries, get
involved in attaining or maintaining access for everyone?
In ESR law, the problem of ‘checks and balances’ has been typically framed
as a matter of rights ‘enforcement’, or the ‘justiciability’ of rights and access
to a court for ESR, which spurred much debate and controversy.58 We consider
that while access to a court is a very important, and at times useful, component
in addressing EPSP failures, it is just one small component of sound societal
decision-making and ensuring ‘checks and balances’. Admittedly, court access
itself can take a number of different forms as well. In fact, as Borges illustrates
with great insight in Chapter 13, improved access to services through courts
can take the form of individual enforcement, negative injunctions, weak-form
enforcement, and structural enforcement.59 She also observes that in Brazil,
individual litigation has usefully led to various structural reforms and approaches
to healthcare provision. Similarly, Murillo Chávarro notes the difference
between the tutela action and the popular action in the Colombian court
system, with especially the first action being highly useful to enforce EPSP.
At the same time, instead of ‘justiciability’ and courts’ involvement – or along-
side this – the more general concept of (human rights) ‘accountability’ is
increasingly emerging in (inter)national law and governance debates. The same
goes for the concept of ‘participation’. Both these concepts are further addressed
in the concluding chapter as important human rights guideposts for EPSP.

57 E.g. A. Chapman and B. Carbonetti, ‘Human Rights Protections for Vulnerable and
Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and
Cultural Rights’ (2011) 33 Human Rights Quarterly 682, 683–684; UNHRC, ‘Report of the
Special Rapporteur on Extreme Poverty and Human Rights’ (2013) paras 12–14 on the ‘vicious
cycle of powerlessness’.
58 Saul, Kinley and Mowbray (2014) 164–166; Malcolm Langford, ‘Judicial Review in National
Courts: Recognition and Responsiveness’, in E. Riedel, G. Giacca and C. Golay (eds), Economic,
Social and Cultural Rights in International Law: Contemporary Issues and Challenges (OUP
2014) 417–447; Fons Coomans (ed.), Justiciability of Economic and Social Rights: Experiences
from Domestic Systems (Intersentia 2006); CteeESCR, ‘General Comment 9 on the Domestic
Application of the Covenant’ (3 December 1998) UN Doc E/1998/24, para 10.
59 This follows the work of David Landau, ‘The Reality of Social Rights Enforcement’ (2012)
53 Harvard International Law Journal 402, 402–459.
18 Marlies Hesselman et al.
In fact, both notions are part of the so-called ‘Human Rights Based Approach’
to development as well.60 In respect of softer forms of ‘participation’ and
‘accountability’, Zhang and Lang each reflect on the Chinese settings and realities
to achieve EPSP, and the roles and forms of public participation and account-
ability there. In fact, in China, direct access to a court is not the most sought-
after orreadily available manner to address failures of EPSP, for various reasons.
In this sense, Lang analyses the opportunities for and recognition of a right to
public participation in decision-making, and what this means. Zhang, in turn,
emphasises how Chinese citizens make use of social media outlets (social
accountability) to advance the right to health. Both contributions very usefully
demonstrate that ‘accountability’ and ‘participation’, which jointly provide
requisite ‘checks and balances’ for EPSP, can take many forms. As considered,
these concepts will be further elaborated in the concluding chapter.

6. Conclusion: towards a human rights based approach

to EPSP
The above sections have demonstrated what the common and difficult
challenges for EPSP are. These common challenges resonate with challenges,
concepts, obligations, developments and standards that are well known within
the human rights law framework as well. The chapters in this book each engage
with different challenges for EPSP and they generate more insights into how
human rights law plays a role in (improving) EPSP. Particularly, the chapters
provide insights in the similarities between semantics at play in the domains of
human rights law and EPSP, their shared concepts and standards, and avenues
for improving access to services through socio-economic rights.
In extrapolating from these discussions, and in adding our own views to
the deliberations, we provide a further overview of the most important ESR
standards and guideposts we have identified for EPSP in the concluding chapter.
These standards, as extrapolated from the international human rights law
framework, and the developments under the International Covenant on Econo-
mic Social and Cultural Rights mostly, are:61

• the ‘AAAQ’ framework and ‘universal service obligations’;

• minimum essential levels/progressive realisation;
• non-discrimination and vulnerable groups inclusion;

60 See Chapter 16, and note 61 below.

61 E.g. the guideposts resonate with considerations by, for example, the UN Independent Expert
on Extreme Poverty and Human Rights, listing the following human rights guideposts for
recovery from the financial crisis: ‘using maximum resources available’, ‘ensuring minimum
essential levels’, ‘avoiding deliberately retrogressive measures’, ‘non-discrimination and
accountability’, ‘participation, transparency and accountability’, or the Human Rights Based
Approach to development (HRBA). UNHRC, ‘Report of the Independent Expert on Extreme
Poverty and Human Rights’ (2011).
 Common challenges for ESR and EPSP 19
• participation and accountability;
• mid-term/long-term planning and budgeting for EPSP; and
• private actor standards.

Throughout the project and drafting of chapters, all contributors to the

volume have been asked to actively engage with these different themes, concepts
and guideposts. As a result, each contribution offers an insightful further part
of the puzzle. That the contours of the overall puzzle might not yet be visible,
or that certain parts are still missing or might be better fitted, is also something
that receives further attention in the final chapter.
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