The Right to Housing in Law and Society

Description

From the very first negotiations of the International Covenant on Economic, Social and Cultural Rights half a century ago to the present day, socio-economic rights have often been regarded as less enforceable than civil and political rights. The right to adequate housing, even though protecting one of the most basic needs of human beings, has not escaped this classification. Despite its strong foundations in international, regional and domestic legislation, many people are still deprived of one or more of the different key elements that comprise adequate housing. How, then, can international human rights theory and case law be developed into effective vehicles at the domestic level? Rather than focusing merely on possibilities for individualized relief through the court system, The Right to Housing in Law and Society looks into more effective socio-economic rights realization by addressing both conceptual and practical stumbling blocks that hinder a more structural progress at the national level. The Flemish and Belgian housing legislation and policy are used to highlight the problems and illustrate the pathways here presented. While first and foremost legal in its approach, the book also offers a more sociological perspective on the functioning of the right to housing in practice. It shows the latest state of knowledge on the topic and will be of interest to researchers, academics, policymakers and students in the fields of international socio-economic rights law and human rights law more generally. Cover Title Copyright Contents Acknowledgments Introduction 1. International Acknowledgment of the Importance of Housing 2. Approach and Aims of the Book 3. The Belgian and Flemish Right to Housing as Illustration PART I An Effective Right to Housing: Beyond Legal-Technical Issues 1 Human Dignity: A Guiding Principle for a Stronger Right to Housing? 1. Exploring the Content of Human Dignity and Its Use in a Human Rights Context A. History of the Concept B. Human Dignity in a Human Rights Context 1) First Function: A Foundation for Human Rights 2) Second Function: A Value/Right to Protect and Guarantee C. The Added Value and Pitfalls of Using Human Dignity 1) As an Equivalent of Decent or Adequate Housing 2) As an Open-Ended Norm for Courts and Other Institutions a. A Driving Force for Other Rights b. The Other Side of the Coin: A Race to the Bottom? c. Subjective vs. Objective Dignity 2. Social Dignity A. Conceptualization in the Context of Social justice 1) Autonomy and Wellbeing 2) Connection to Capabilities? 3) A Different Voice on Social Justice B. Social Dignity in the Right to Housing 1) Housing First 2) Social Legal Aid 3) Property as a Primary Concern a. The Right to Housing as a Right to Property b. Home Ownership as the Pinnacle of Autonomy 1. The Benefits of Home Ownership in the Balance 2. Justifying a Property-Driven Policymaking i. (Perception of) Housing Security ii. Consequences for the Rental Market 4) Stigmatization on the Social Rental Market a. Composition of the (Social) Rental Sector b. Participation in Social Housing c. Empowerment through Obligations 3. Conclusion 2 Socio-Legal Influences on the Effectiveness of the Right to Housing 1. Legal Instrumentalism and Its Criticism 2. A Socio-Legal Perspective A. Law in the Books vs. Law in Action vs. Living Law B. Equality and Dependency 1) Access to Justice 2) Landlord Preferences and Discrimination C. Semi-Autonomous Social Fields D. Other Influences 1) Knowledge of Law – Quality of Legislation 2) Cost–Benefit Analysis 3. Conclusion PART II European Jurisprudence 3 The Impact of European Case Law on the Protection of (the Right to) Housing 1. Access to European Courts A. Burdens of Admissibility B. Twelfth Additional Protocol to the ECHR 2. Lessons from European Jurisprudence: Housing Rights Protection on Three Levels A. Acknowledgment of the Right to Housing by the ECtHR B. Housing Rights in EU (Case) Law C. Shared Housing Rights Concerns 1) Accommodation for Asylum Seekers 2) The Loss of a Home: Protection against Evictions D. The Right to Property: Strengthening and Weakening the Right to Housing at the Same Time E. Interim Conclusion 3. The Assessment of Housing Legislation and Policy through a Collective Complaint A. Dependency on the Ratification of Article 31 RESC B. Conditions and Benchmarks Set by the ECSR C. The Value of a Decision by the ECSR 1) Legally Binding? 2) Immediate Measures 3) With a Little Help from Your Friends: Empowering Socio-Economic Rights Case Law 4. Conclusion PART III Strengthening Housing Rights Obligations on the Domestic Level 4 From Obligation of Means to Obligation of Result? 1. Private Law A. Origin and Meaning B. Success and Criticism 2. Public International Law 3. Differences between Both Approaches 4. Impact on Economic, Social and Cultural Rights and the Right to Housing A. Obligations of Result or Conduct? According to Private or International Law? B. A Recipe for Confusion 5. Towards Result-Oriented Obligations? A. The Right to Housing as an Obligation of Result B. A Result-Oriented Approach 6. Conclusion 5 Progressive Realization and Retrogressive Measures 1. Introduction 2. The Concept of Progressive Realization under Scrutiny: From a Housing Rights Perspective A. Progressiveness as a Flexibility Device B. Flexibility Does Not Equal Freedom of Obligations 1) Drittwirkung 2) Immediate Obligations 3) Minimum Core C. Focus on Progressiveness 3. Retrogressive Measures and Financial Constraints A. Origins in International Human Rights Law B. Justification of Retrogressive Measures in International Human Rights Law 1) Presumption of Impermissibility 2) More Leeway for Budgetary Concerns? 3) Connection between Article 2(1) and 4 ICESCR 4) Budgetary Concerns: The Position of the European Committee of Social Rights C. The Application in Belgian Case Law 1) A Broader Margin of Appreciation: No Presumption of Non-Retrogression 2) Practical Problems: Establishing Retrogression 3) A Different Application of the Principle: The Proportionality Test D. Appropriateness of Retrogressive Measures 4. Conclusion 6 Towards Result-Oriented Obligations 1. International Monitoring Techniques 2. Enforceability of Progressive Realization A. A Review Criterion B. Reasonableness 1) Different Scopes of Reasonableness 2) Reasonableness as Appropriateness a. A Preliminary Proposal b. Possible Criticism and Imperfections 3. Combining Monitoring and Reasonableness A. Overview of the Proposal B. Requirements and Areas of Concern 1) The Monitoring Body 2) Ex-Ante and Ex-Post Analysis: Practical Difficulties 3) Enforceability of Progress 5. Conclusion Conclusions Index