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 Nationsā āSustainable Development Goalsā 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]
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 āmulti-dimensional povertyā.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 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 āEPSPā 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 āessential public services provisionā
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 āessential public services provisionā 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 understandings of āEPSPā, and discuss in particular: (i) the nature of āpublicnessā in EPSP; (ii) the āessentialā quality of EPSP; and (iii) the meaning of āservicesā 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.
1.1. Defining āpublicā services
Defining the āpublicā nature of āessential public services provisionā is a first hurdle, because what distinguishes a āpublicā service from a āprivateā 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 considers that the āpublic natureā (as opposed to āprivateā 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 āuniversal service obligationsā (USOs).12 In this case, the āpublicnessā 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 āprivate service providersā are involved, the imposition of certain āuniversal service obligationsā through regulation by the State can reflect the concerns of āpublicnessā of the service, or its āessential natureā. 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 āpublic interest or purposeā of the service is an important qualifying factor in determining whether a service is a āpublic serviceā. As a result of this definition, all services with a demonstrable āpublic interestā, and 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 āprivateā or āpublicā nature of a service might change over time, or with the situation. A few good examples of services that may typically be considered āprivate servicesā are āprivate taxi servicesā, āhigh-quality broadband Internet servicesā, or accessing a certain set of āTV channelsā. 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 āpublicā variant of āprivate taxi servicesā might be āpublic transportā. 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 āpublic transportā 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 āprivateā service in the public interest. The State can ensure accessibility for the public by imposing restrictions on the price or prohibit the denial of customersā access to the car. Common-law countries have developed a number of legal doctrines to deal with these issues, including the doctrines of ācommon callingsā, ācommon carriageā, ābusinesses affected with a public interestā, and the doctrine of āprime necessityā. Broadly speaking, these concepts require the providers of essential services (suppliers of āprime necessitiesā) 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 particul...
