The Right to housing in law and society

Nico Moons

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351605618
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

Part I
An Effective Right to Housing: Beyond Legal-Technical Issues

Whereas Part II and III discuss and explore more legal-technical ways to try to strengthen housing rights obligations at the domestic level, we will first take a look at a couple of aspects that should be taken into account when aspiring for a (more) effective right to housing. In Chapter 1 we do so by tackling a concept often used in international as well as national socio-economic rights law: human dignity. Despite its popularity, there are a lot of questions with regard to both its meaning and its potential role in a legal context. If dignity is indeed taken as an important and perhaps useful concept, what implications does that have for how to protect, configure and realize the right to housing? Chapter 2 proceeds further with the question of what an effective right to housing entails, but here it does so by approaching the matter at hand from a more socio-legal perspective. It explores the top-down and bottom-up influences that (can) have an impact on the effectiveness of housing rights in society.¹

Notes

1 See also N. MOONS, “Tenant vs. owner: deriving access to justice from the right to housing”, RdW 2015, vol. 36, no. 3, (99) 104–109.

1
Human Dignity: A Guiding Principle for a Stronger Right to Housing?

What role is there for an essentially non-legal concept in the bigger picture of realizing the right to housing? Is it first of all recommendable to use a vague¹ and interdisciplinary² term like human dignity for the protection of fundamental rights? These are some of the questions this chapter will discuss. We will start close to the concept itself. What does it traditionally mean and how has it been used in a legal context? We will see how human rights law (as well as article 23 of the Belgian Constitution for that matter) have given human dignity multiple functions. Next, we look at the added value as well as the deficiencies of the concept and propose what in our opinion are the essential aspects of what we by then call social dignity that should have to be taken into account in the pursuit of a more effective right to housing. It is on the basis of this interpretation that we will then look at a couple of housing-related issues (housing security, property vs. tenancy, social housing) and how the concept could be a guiding principle in this context.

1. Exploring the Content of Human Dignity and Its Use in a Human Rights Context

A. History of the Concept

According to the Oxford English Dictionary, dignity means “the quality of being worthy or honorable”. It refers to a person’s status, position or rank. This definition still reflects the classical Roman conception of dignitas hominis, a notion that was ascribed to those people that possessed a certain title or quality within a hierarchically structured society, a characteristic of great men, those meriting special honor or distinction.³

This interpretation shows obvious differences with the predominant contemporary philosophical ideas of human dignity. It has obtained an absolute and intrinsic character that belongs to every human being regardless of his or her social position. Some authors believe that the current notion of human dignity is “the product of a different history that ran parallel to the (classical Roman) origins”,⁴ while others argue that the dignitas conception has simply transformed into a more egalitarian conception and that the respect and status once reserved only for the chosen few has expanded to humanity in its entirety.⁵

It is open for discussion as to where the exact roots of the more modern interpretation of human dignity can be found. One could go all the way back to Cicero,⁶ but he does seem to focus more on distinguishing human beings from animals than on acknowledging the universal character of the concept. This universality is present in the Judeo-Christian notion of dignity, but this traditional conception obviously remains deeply hierarchical (i.e. the relation between God and man).⁷ In the Middle Ages, these combined ideas were developed into natural law theory by Christian philosophers such as Thomas Aquinas.⁸ By the late fifteenth century, Pico della Mirandola, in his Oration on the Dignity of Man, recognized dignity as the ability of human beings to choose what they want to be. Although the underlying reason for this free choice was still assigned to God,⁹ Pico was an important figure in broadening the philosophical scope of human dignity.¹⁰

Nonetheless, a specifically person-based idea of human dignity was only first developed during the Enlightenment. Probably the most prominent contributor to the relevant discussion was Immanuel Kant. He distinguished human beings from material objects and other living creatures by stating that both have a different value:

A human being regarded as a person [. . .] is exalted above any price; for as a person he is not to be valued merely as a means to the ends of others or even to his own ends, but as an end in himself.¹¹

Human beings possess an absolute intrinsic and incomparable value by virtue of their shared humanity: dignity. It is a value without any equivalence and thus cannot be traded, substituted or replaced.¹² In his view, human dignity is endowed on every human being because he has the capacity as a rational agent for reason and autonomy.¹³ It is inviolable, constant, inalienable, unconditional and equal for all human beings.¹⁴

B. Human Dignity in a Human Rights Context

1) First Function: A Foundation for Human Rights

While interpretations might have evolved and changed over time, Kant is still frequently regarded as the father of the modern, universal interpretation of human dignity as an inherent worth equal in all people.¹⁵ This particular aspect of his basic conception of human dignity is also noticeable in the international human rights discourse¹⁶ and particularly provides a significant philosophical underpinning for the Universal Declaration of Human Rights: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.¹⁷ Here it serves as a symbolic and theoretical basis for human rights in the absence of any other grounds for consensus.¹⁸ This relationship is even more clearly described in the preambles of the subsequent International Covenants on Economic, Social and Cultural Rights (ICESCR) on the one hand and on Civil and Political Rights (ICCPR) on the other, “recognizing that these rights derive from the inherent dignity of the human person”.¹⁹ It was repeated along the same lines in the Vienna Declaration made at the World Conference on Human Rights in 1993, which says that “all human rights derive from the dignity and worth inherent in the human person”.²⁰

Within the Organization of American States (OAS), this link between dignity and both of the “generations” of human rights was explicitly stated in the Additional Protocol to the Convention in the area of Economic, Social and Cultural Rights (more commonly known as the Protocol of San Salvador): “Considering the close relationship that exists between economic, social and cultural rights, and civil and political rights, in that the different categories of rights constitute an indivisible whole based on the recognition of the dignity of the human person [. . .]”²¹ Consequently, human dignity in this context forms the foundation of both civil and political rights as well as economic, social and cultural rights. In short, Gewirth adequately describes the relationship between human dignity and human rights as follows: “Human rights are based upon or derivative from human dignity. It is because humans have dignity that they have human rights.”²²

Interestingly, neither the European Convention on Human Rights (ECHR)²³ nor the European Social Charter (ESC) themselves use (inherent) dignity as the foundation for the fundamental rights they protect.²⁴ Their (quasi-)judicial bodies on the other hand have made similar statements. The European Committee of Social Rights has, for example, said that “human dignity is the fundamental value and indeed the core of positive European human rights law – whether under the ESC or under the European Convention on Human Rights”.²⁵ In comparison, though, to the UN Covenants, for example, these applications of dignity are already closer to the concept’s second function in human rights law.²⁶

2) Second Function: A Value/Right to Protect and Guarantee

Human dignity has not been confined to the foundational meaning.²⁷ A fair number of constitutions and jurisdictions make reference to an actual right to dignity. Even if not always explicitly worded as such, dignity is described as a value that needs to be legally respected and protected.²⁸ European human rights jurisprudence is also more familiar with this application of dignity.²⁹ This conception is, however, irreconcilable with dignity construed as a value inherent in all human beings or as the foundational principle of all human rights.³⁰ It “reverses the more commonly accepted order of things by suggesting that dignity is founded on the enjoyment of human rights rather than that human rights are founded on the inherent dignity of every human being”.³¹ Article 23 of the Belgian Constitution shows the same pattern: in order for people to live in human dignity, the enlisted socio-economic rights must be guaranteed.³² The provision can be considered incompatible with the first function because of the contradictory “right” to dignity.

If dignity is indeed an inherent feature of the human being, a right to dignity does not make much sense, since it is impossible to lose it or to be denied it, unlike the human rights norms it has triggered itself. In other words, such a notion is existentially contradictory with a foundational, inherent conception of dignity.³³ O’Mahoney concludes from this conundrum that it would be better “to confine the use of human dignity as a leg...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• PART I An Effective Right to Housing: Beyond Legal-Technical Issues
• PART II European Jurisprudence
• PART III Strengthening Housing Rights Obligations on the Domestic Level
• Conclusions
• Index