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.
Table of Contents
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
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
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
5 Progressive Realization and Retrogressive Measures
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
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
6 Towards Result-Oriented Obligations
1. International Monitoring Techniques
2. Enforceability of Progressive Realization
A. A Review Criterion
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
Nico Moons is Doctor of Law at the University of Antwerp, Belgium