The Right to Housing in Law and Society

259 Pages·2018·1.569 MB·English

by  Nico Moons

The Right to Housing in
Law and Society
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.
Nico Moons is Doctor of Law at the University of Antwerp, Belgium.
Routledge Research in Human Rights Law
Available titles in this series include:
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of Human Rights
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International Human Rights Law and Domestic Violence
The Effectiveness of International Human Rights Law
Ronagh McQuigg
The Right to Religious Freedom in International Law
Between Group Rights and Individual Rights
Anat Scolnicov
The Right to Development in International Law
The Case of Pakistan
Khurshid Iqbal
Global Health and Human Rights
Legal and Philosophical Perspectives
John Harrington and Maria Stuttaford
Human Rights, Constitutional Law and Belonging
The Right to Equal Belonging in Democratic Society
Elena Drymiotou
Dignity, Degrading Treatment and Torture in Human Rights Law
The Ends of Article 3 of the European Convention on Human Rights
Elaine Webster
The Right to Housing in Law and Society
Nico Moons
https://www.routledge.com/Routledge-Research-in-Human-Rights-Law/
book-series/HUMRIGHTSLAW
The Right to Housing
in Law and Society
Nico Moons
First published 2018
by Routledge
711 Third Avenue, New York, NY 10017
and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 Taylor & Francis
The right of Nico Moons to be identified as author of this work has been
asserted by him in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
Library of Congress Cataloging-in-Publication Data
Names: Moons, Nico, author.
Title: The right to housing in law and society / Nico Moons.
Description: New York, NY : Routledge, 2018. |
Series: Routledge research in human rights law | Includes bibliographical
references and index.
Identifiers: LCCN 2017060229| ISBN 9781138093270 (hardback) |
ISBN 9781351605625 (web pdf) | ISBN 9781351605618 (epub) |
ISBN 9781351605601 (mobipocket)
Subjects: LCSH: Right to housing.
Classification: LCC K3550. M66 2018 | DDC 344/.063635—dc23
LC record available at https://lccn.loc.gov/2017060229
ISBN: 978-1-138-09327-0 (hbk)
ISBN: 978-1-315-10693-9 (ebk)
Typeset in Galliard
by Keystroke, Neville Lodge, Tettenhall, Wolverhampton
Contents
Acknowledgments xi
Introduction 1
1. International Acknowledgment of the Importance
of Housing 1
2. Approach and Aims of the Book 4
3. The Belgian and Flemish Right to Housing as Illustration 6
PART I
An Effective Right to Housing: Beyond
Legal-Technical Issues 11
1 Human Dignity: A Guiding Principle for a Stronger
Right to Housing? 13
1. Exploring the Content of Human Dignity and Its Use in
a Human Rights Context 13
A. History of the Concept 13
B. Human Dignity in a Human Rights Context 15
1) First Function: A Foundation for Human Rights 15
2) Second Function: A Value/Right to Protect and
Guarantee 17
C. The Added Value and Pitfalls of Using Human
Dignity 20
1) As an Equivalent of Decent or Adequate Housing 20
2) As an Open-Ended Norm for Courts and Other
Institutions 21
a. A Driving Force for Other Rights 21
b. The Other Side of the Coin: A Race to the
Bottom? 21
c. Subjective vs. Objective Dignity 23
vi Contents
2. Social Dignity 26
A. C onceptualization in the Context of Social justice 27
1) Autonomy and Wellbeing 27
2) Connection to Capabilities? 31
3) A Different Voice on Social Justice 33
B. Social Dignity in the Right to Housing 35
1) Housing First 36
2) Social Legal Aid 37
3) Property as a Primary Concern 39
a. The Right to Housing as a Right to Property 39
b. Home Ownership as the Pinnacle of Autonomy 41
1. The Benefits of Home Ownership in the
Balance 41
2. Justifying a Property-Driven Policymaking 46
i. (Perception of) Housing Security 46
ii. Consequences for the Rental Market 48
4) Stigmatization on the Social Rental Market 52
a. Composition of the (Social) Rental Sector 52
b. Participation in Social Housing 55
c. Empowerment through Obligations 57
3. Conclusion 58
2 Socio-Legal Influences on the Effectiveness of
the Right to Housing 71
1. Legal Instrumentalism and Its Criticism 71
2. A Socio-Legal Perspective 73
A. Law in the Books vs. Law in Action vs. Living Law 73
B. Equality and Dependency 75
1) Access to Justice 75
2) Landlord Preferences and Discrimination 78
C. Semi-Autonomous Social Fields 81
D. Other Influences 84
1) Knowledge of Law – Quality of Legislation 84
2) Cost–Benefit Analysis 86
3. Conclusion 88
Contents vii
PART II
European Jurisprudence 95
3 The Impact of European Case Law on the Protection
of (the Right to) Housing 97
1. Access to European Courts 97
A. Burdens of Admissibility 97
B. Twelfth Additional Protocol to the ECHR 100
2. Lessons from European Jurisprudence: Housing Rights
Protection on Three Levels 101
A. Acknowledgment of the Right to Housing by
the ECtHR 101
B. Housing Rights in EU (Case) Law 104
C. Shared Housing Rights Concerns 106
1) Accommodation for Asylum Seekers 107
2) The Loss of a Home: Protection against Evictions 108
D. The Right to Property: Strengthening and Weakening
the Right to Housing at the Same Time 112
E. Interim Conclusion 116
3. The Assessment of Housing Legislation and Policy through a
Collective Complaint 117
A. Dependency on the Ratification of Article 31 RESC 117
B. Conditions and Benchmarks Set by the ECSR 120
C. The Value of a Decision by the ECSR 123
1) Legally Binding? 123
2) Immediate Measures 125
3) With a Little Help from Your Friends: Empowering
Socio-Economic Rights Case Law 127
4. Conclusion 129
PART III
Strengthening Housing Rights Obligations on
the Domestic Level 135
4 From Obligation of Means to Obligation of Result? 137
1. Private Law 137
A. Origin and Meaning 137
B. Success and Criticism 139
2. Public International Law 140
3. Differences between Both Approaches 142
viii Contents
4. Impact on Economic, Social and Cultural Rights and the
Right to Housing 144
A. Obligations of Result or Conduct? According to
Private or International Law? 144
B. A Recipe for Confusion 147
5. Towards Result-Oriented Obligations? 149
A. The Right to Housing as an Obligation of Result 149
B. A Result-Oriented Approach 153
6. Conclusion 155
5 Progressive Realization and Retrogressive Measures 159
1. Introduction 159
2. The Concept of Progressive Realization under Scrutiny:
From a Housing Rights Perspective 160
A. Progressiveness as a Flexibility Device 160
B. Flexibility Does Not Equal Freedom of Obligations 163
1) Drittwirkung 163
2) Immediate Obligations 165
3) Minimum Core 167
C. Focus on Progressiveness 170
3. Retrogressive Measures and Financial Constraints 171
A. Origins in International Human Rights Law 171
B. Justification of Retrogressive Measures in International
Human Rights Law 173
1) Presumption of Impermissibility 173
2) More Leeway for Budgetary Concerns? 175
3) Connection between Article 2(1) and 4 ICESCR 176
4) Budgetary Concerns: The Position of the European
Committee of Social Rights 177
C. The Application in Belgian Case Law 178
1) A Broader Margin of Appreciation: No Presumption
of Non-Retrogression 179
2) Practical Problems: Establishing Retrogression 182
3) A Different Application of the Principle: The
Proportionality Test 185
D. Appropriateness of Retrogressive Measures 188
4. Conclusion 192
6 Towards Result-Oriented Obligations 198
1. International Monitoring Techniques 199
2. Enforceability of Progressive Realization 204
Contents ix
A. A Review Criterion 204
B. Reasonableness 208
1) Different Scopes of Reasonableness 208
2) Reasonableness as Appropriateness 211
a. A Preliminary Proposal 211
b. Possible Criticism and Imperfections 212
3. Combining Monitoring and Reasonableness 215
A. Overview of the Proposal 215
B. Requirements and Areas of Concern 218
1) The Monitoring Body 218
2) Ex-Ante and Ex-Post Analysis: Practical Difficulties 221
3) Enforceability of Progress 226
5. Conclusion 228
Conclusions 235
Index 241