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Cyprus Human Rights Law Review (2014) 3.1. 13-35.

Housing Rights in Europe after the Treaty of Lisbon – minimum core obligations?

Dr Padraic Kenna1

Housing rights form part of both private and public law domains. Public law elements are derived mainly from socio-economic rights, which originate within human rights generally, although many trace their establishment more to social forces than philosophical idealist principles. Courts often waver in enforcing social rights, striving to assimilate the nuanced and costly concepts into their customary reasoning. While elements of socio-economic rights are eminently amenable to customary curial treatment, many are not. Despite the best endeavours of some constitutional judges, it is clear that State action at macroeconomic level is required for general implementation. Of course, housing rights measures and legislation are implemented in all States, to varying degrees, through both public and private law. However, in Europe, the EU Charter of Fundamental Rights has the potential to transcend the over-wrought debates about separation of powers, resource limitations and tedious legal definitions of minimum social rights standards. However, the normative standards of European welfare States must provide the interpretative guide in the development of housing rights.

Introduction

Fundamental questions face housing rights advocates in times of change.2 Globalised housing finance has created a historic banking crisis. Yet, in its resolution, few, if any, housing rights based approaches are advanced, although these rights are widely promulgated and accepted. 3 Human rights lawyers and advocates appear unsure on what is required of States to properly implement these rights. Limiting human rights to a “moral compass” role for policy and law, traditional common law distrust of the State, inability to specify measurable, relevant and time limited objectives for rights, or perhaps elitism, all contribute to this impasse.

1 Lecturer in law, National University of Ireland, Galway. [email protected]. I am grateful to Jamie Burton and Rory Hearne for comments. 2 Professor Nicholas Bernard distinguishes between a right to housing, i.e, access to housing, with hous ing rights i.e., the rights of those who are already housed. See FEANTSA The Right to Housing – The Way Forward – Homeless in Europe (2008) (Brussels: FEANTSA), p. 15. I use the term housing rights to encompass both meanings. Elements of adequate housing encompass legal security of tenure, availab ility of services, materials and infrastructure, affordability, habitability, accessibility, housing in a suita ble location and culturally appropriate housing - UN Doc. E/C.12/1771/4, UNCESCR. General Comm ent No. 4. The Human Right to Adequate Housing. See also UN-Habitat (2009) The Right to Adequate Housing, UN Factsheet 21/Rev 1. 3 See Report of the Special Rapporteur on adequate housing as a component of the right to an adequat e standard of living, and on the right to non-discrimination in this context, Raquel Rolnik. UN Doc. A/ HRC/10/7, 2009, para 75: “The Special Rapporteur believes that the current crisis represents an oppor tunity for reflection and to consider how to improve housing systems, policies and programmes so as to ensure adequate housing”.

1 Indeed, human rights scholarship, itself, has been criticized for its methodological deficiencies. Failure to critically examine human rights systems and excessive deference towards international human case law prevails.4 This methodological deficit appears to affect legal research more than that carried out by social scientists. Various explanations have been put forward, principally, that lawyers are system builders, relying on logic to determine whether arguments are compatible with an existing normative framework.5 Social scientists, on the other hand, it is claimed, have their findings empirically challenged and verified, while human rights advocates vigorously resist any challenge to their “conventional” wisdom.

A socio-legal methodology draws on a belief that both the social sciences and law together can provide valuable insights, which neither alone can offer. Banakar and Travers suggest that ‘… focusing the reflexive lenses of sociological analysis on the practice-based features of the law, can potentially enable us to uncover the institutional limits of the legal practice, in a way that traditional forms of legal studies cannot do.’6 Indeed, interdisciplinary research can “combine knowledge, skills and forms of research experience from two (or several) disciplines in an attempt to transcend some of the theoretical and methodological limitations of the disciplines in question and create a basis for developing a new form of analysis.’7 Such a law-in- context approach can be useful in the formation of policy, as well as having academic significance.8

In this article I initially consider the critiques of human rights approaches, including the contemporary treatment of constitutional social rights by courts. The climax of this discourse revolves around defining and enforcing the minimum core obligations of States. Here, much legal vacillation is evident, particularly within international agencies and common law courts. There may be a number of levels of these minimum obligations, the lowest corresponding with liberal rights to life. However, this debate is overshadowed and marginalized in the context of European housing rights implementation at institutional and macroeconomic level, historically ensuring almost universal access. Indeed, the grundnorm of housing rights is shifting to a more complex and person-centred approach. Since most aspects of law, fundamental and social rights within national States in Europe are increasingly influenced by EU law, in the context of the multi-level governance of Europe, I investigate the impact of EU law on housing rights.9 This leads to an analysis of the operation, content and impact of the EU Charter of Fundamental Rights (EUCFR), now binding EU Treaty law since 2009, with its right to social and housing assistance so as to ensure a decent

4 See Coomans, F., Grünfeld, F. & Kamminga, M.T. “Methods of Human Rights Research: A Primer”, Human Rights Quarterly, 32 (2010) 179-186. 5 Ghazi, B. in The IMF, the World Bank and the Question of Human Rights (New York, Transnational, 2005) at p. 311, suggests that “[S]cholars in the field of human rights are mainly attached to theoretical legal issues that are sometimes not connected to the actual situation, while others start their argumentati on from the concrete situation and try to develop it from there”. 6 Banakar, R. & Travers, M. (2005) Theory and Method in Socio-Legal Research. (Oxford, Hart Publishing), p. 22. 7 Ibid., p. 5. 8 Chynoweth, P. (2008) ‘Legal Research’ in Knight, A. & Ruddock, L. (Eds) Advanced Research Methods in the Built Environment. (West Sussex, Wiley-Blackwell). 9 Anderson, G.W. ‘Beyond ‘Constitutionalism Beyond the State’’ Journal of Law and Society, Vol. 39, No. 3, September 2012, 359-83.

2 existence. Key existing European standards offer the appropriate interpretative nexus for the EUCFR social rights provisions.

Socio-economic Rights Generally – Challenges and Opportunities

Housing rights are viewed as rooted in human rights, and particularly socio-economic rights.10 While few would now cite Bentham’s view of natural rights as “nonsense upon stilts,” socio-economic rights in positive law are not immune from criticism, particularly in relation to their legal enforceability.

Some view the move towards rights-based approaches as contemporaneous with a move towards individualisation in social policy, influenced by the growth of consumerism, development of modernist and post-modernist social theory and the effects of globalisation.11 The Critical Legal Studies movement rejects human rights approaches as part of the fetish of liberal economic doctrines of law, legitimising an atomistic or commodified conception of human relations.12 The concept of individual liberty and other civil rights are associated with the rise of liberalism as a political ideology, accompanying the rise of capitalism and freedom of contract for goods and labour.13 Fineman argues that the “vulnerable subject” must replace the autonomous and independent subject asserted in the liberal tradition.14 Kittay highlights how the centrality of dependency is avoided in liberal theories of welfare, and "love's labors," figure neither in political theory nor in social policy.15

Notwithstanding claims that a preoccupation with rights can paralyse the will for radical action, and accepting that law is utilized by the ruling class, legitimizing its actions, it is arguable that law can also be used as a tool in overturning the structures

10 Classical human rights discourse is usually confined to public international law largely ignoring housing rights within consumer rights, property rights, family law rights, etc. See Deutch, S. (1995), “Are Consumer Rights Human Rights?” Osgoode Hall Law Journal, Vol. 32, No. 3, 538-578. For comprehensive overviews of socio-economic rights see Eide, A. et al. (ed.) (2nd ed.) (2001), Economic, Social and Cultural Rights – a Textbook, Martinus Nijhoff Publishers, Dordrecht; Craven, M. (1995). The International Covenant on Economic, Social and Cultural Rights. Oxford, Clarendon Press; Baderin, M. A. & McCorquodale, R. (eds.) Economic, Social and Cultural Rights in Action, (Oxford University Press, 2007); Langford, M. & King, J. Social Rights Jurisprudence: Emerging Trends in International Law, (Cambridge: Cambridge University Press, 2009). 11 See Hudson, A. “Equity, individualisation and social justice,” in Hudson, A. et al, New Perspectives on Property Law, Human Rights and the Home (London, Cavendish, 2004); Kenna, P. (2008), “Globalization and Housing Rights”, Indiana Journal of Global Legal Studies, Vol. 15, Issue, 2, 397-469. 12 See Fitzpatrick, P. & Hunt, A. (eds.) Critical Legal Studies (Oxford, Basil Blackwell, 1987). For a cr itique of rights based approaches generally, see Duncan Kennedy, ‘The Critique of Rights in Critical L egal Studies’ in Brown, W, and Hally, J, (eds), Left Legalism/Left Critique (Duke University Press, Dur ham and London, 2002). 13 Picciotto, S. et al. (1984) Capitalism and the Rule of Law, London: Macmillan. It is significant that h uman rights approaches adopt, without question, a liberal pluralist model of the State. Indeed, this often reflects the focus on the distributive aspects of the State/economy, rather than the production processes – work, labour rights, etc. 14 Fineman, M.A. “The Vulnerable Subject: Anchoring Equality in the Human Condition”, 20 Yale Jou rnal of Law and Feminism, 3, 2008-2009, 1–17, argues that vulnerability is universal and constant and i nherent in the human condition. As a result of this, the “vulnerable subject” should be the focus of Stat e policy rather than the liberal legalist autonomous independent subject. 15 Kittay, E.F. Love’s Labor, (New York, Routledge, 1999).

3 of domination in modern society.16 Indeed, social rights development has been viewed as a part of a political struggle to make gains, to deconstruct laws and to expose the social and political dominance inherent in the liberal consensus model of society.17 Kemeny argues that the level of social rights in existence in any State is a reflection of the balance of class forces in that State.18 Similarly, Stammers suggests that human rights did not actually develop from some normative or critical progression of legal thinking, but only through political and protest action of social movements.19 Hilson suggests that successful social movements for rights must contain three concurrent strands: litigation, protest, and political action.20 The relation between social movements and rights is dialectic in that social movements seek rights, while rights talk can empower social movements.21 Goodchild argues that while rights approaches have significant limitations, they can become a heuristic device where campaigning groups conceptualise their demands in an acceptable and coherent way.22

Liebenberg suggests that litigation around socio-economic rights can highlight the deprivation of rights of social groups, which can lead to collective mobilization around long term “structural” reforms.23 Indeed, one South African Constitution Court Judge argues that constitutional social rights have been pivotal in bringing about social and political change in South Africa since 1996.24 While accepting that legal rights have not altered the material conditions of life as much as was expected, he suggests that legal rights “can confer the dignity of moral citizenship”25 and “can change social practice by altering discourse.”26

Today, the philosophical and moral base of Western human rights lie in notions of dignity,27 in natural law, in the idea of freedom, in utilitarian principles of promoting

16 Tushnet, M. (1991) ‘Critical Legal Studies: A Political History’ Yale Law Journal 100; Unger, R. (1986) The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press). 17 Grigg-Spall, I. & Ireland, P. The Critical Lawyers Handbook (London, Pluto Press, 1992). 18 Kemeny, J. Housing and Social Theory (London, Routledge, 1992), who points out that the level of State control over housing markets reflects the balance of political power between labour and capital. 19 Stammers, N. “Social Movements and the Social Construction of Human Rights” (1999) 21 Human Rights Quarterly 980; Stammers, N. Human Rights and Social Movements, (London and New York, Pl uto Press, 2009). The idealist philoshophical base of much human rights theory has not been matched b y any scholarly analysis of materialist philosophical principles. 20 Hilson, C. “New social movements: the role of legal opportunity,” (2002) 9(2) Journal of European Public Policy 238. 21 Pieterse, M. “Health, Social Movements, and Rights-based Litigation in South Africa” Journal of La w and Society, Vol. 35, No. 3 September 2008, 364-88; Pieterse, M. “Eating Socioeconomic Rights: Th e Usefulness of Rights Talk in Alleviating Social Hardship Revisited”, Human Rights Quarterly 29, 3, (2007) 796-822. 22 Goodchild, “Implementing the Right to Housing in France: Strengthening or Fragmenting the Welfar e State?” (2003) 20(2) Housing Theory and Society 86. See also Harvey, C. (ed.) Human Rights in the Community – Rights as Agents for Change, (Oxford, Hart, 2005) on applying a human rights approach t o Northern Ireland. 23 Liebenberg, S. “Rights, Needs and Trasnformation: Adjudicating Social Rights” (2006) 17 Stellenbo sch Law Review 5-36. 24 Cameron, E. “What you can do with rights” European Human Rights Law Review 2012, 2, 147-159. 25 Ibid., p. 155. 26 Ibid., p. 149. 27 See Liebenberg, S. “The Value of Human Dignity in Interpreting Socio-economic Rights” (2005) 21 South African on Human Rights, 1; McCrudden, C. (2008). ‘Human Dignity and Judicial Interpretation of Human Rights’ European Journal of International Law Vol. 19. No. 4. 655–724. See also Carozza,

4 greater happiness, in ideas of social citizenship, civic republicanism or deliberative democracy social minimums.28 King points out that no commonly accepted theory of human rights can reasonably exclude social rights.29 Indeed, he suggests that social rights only began to be recognized as human rights at the time “democratic equality emerged in the West,” in the late 1940s.30 Of course, even the US leadership had accepted that without freedom from want, there was no real freedom.31 Ironically, this coincidence may hinge on the American post war strategy of supporting a European welfare state to undermine support for communism, in the same way that social rights are being diminished after the fall of the Berlin Wall.32

Landau points out too that social rights (including housing rights) have formed part of most new constitutions since 1945, not just in Europe, but around the world.33 However, courts have addressed the enforcement of constitutional social rights in ways with which they are familiar, using tools from the civil and political rights arena, and adopting three distinct approaches. Firstly, an individualized enforcement model, based on an individual remedy for a single applicant, such as State provision of some particular medicine or treatment. Secondly, the negative injunction, striking down a

P. (2008) ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’. European Journal of International Law, Vol. 19, No. 5, 931–944; Rosen, M. Dignity: Its History and Meaning (Harvard University Press, 2012). Bilchitz D. in Poverty and Fundamental Rights, (OUP, 2007) differentiates the liberal concept of “dignity as freedom” from the more nuanced “dignity as integrity” which recognizes that the ability to exercise choice requires at least minimal material conditions of existence. 28 See King, J. Judging Social Rights (Cambridge University Press, 2012), pp. 17-28. Compare the syst ems theory approach on human rights as a societal institution, through which modern society protects it s own structure against self-destructive tendencies. See Verschraegen, G. ‘Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory’, Journal of Law and Society, Volume 29, No. 2, June 2002, pp. 258-81. For a systems approach to housing see Angel, S. Housing P olicy Matters – A Global Analysis (OUP, 2000), which defines houisng systems is comprising five subs ystems; finance, property registration, infrastructure, regulation and social/subsidised housing. 29 King suggests that “we can move on from the normative foundations of social human rights safe in the knowledge that plenty of philosophical wind fills our sails.” (p. 28). See also Bilchitz, D. Poverty and Fundamental Rights, (OUP, 2007) chapter 2; Ishay, M. "The Socialist Contributions to Human Rights: An Overlooked Legacy" (2005) 9(22) International Journal of Human Rights 225; Kleinman, M. (1996), Housing, Welfare and the State in Europe, Cheltenham: Edward Elgar; Marshall, T. H. "Citizenship and Social Class" in Marshall, T. H. & Bottomore, T. (eds), Citizenship and Social Class (London: Pluto Press, 1992); Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism. Cambridge: Polity Press. 30 King, J. Judging Social Rights (Cambridge University Press, 2012), p. 23. 31 See Four Freedoms 1944 State of the Union Address by President Roosevelt. Whelan, J. D. & Donnelly, J. suggest in ‘The Reality of Western Support for Economic, and Social Rights: A Reply to Susan, L. Kang,’ 31 Human Rights Quarterly (2009) 1030-1054, there was no “western opposition” to international socio-economic rights. In OECD States, on average, “social spending as a percentage of GDP increased by more than a fifth between 1980 and 2005, rising from 18 percent to 22 percent. As a percentage of government expenditures, social spending rose by thirty percent, from 39 percent in 1980 to 51 percent in 2005, with an unbroken upwards trend.” (at 1032). Human rights scholars ignore the impact of Fordist economic policies, where can be secured through purchasing power of workers. 32 See Kildal, N. & Kuhnle, S. Normative Foundations of the Welfare State: The Nordic Experience, (O xford, Routledge, 2005), p. 65. 33 See Landau, D. ‘The Reality of Social Rights Enforcement.’ Harvard International Law Journal, Vo l. 53, Number 1, Winter 2012, 401-459. Ben-Bassat, A. & Momi, D. in ‘Social Rights in the Constituti on and in Practice’ Journal of Comparative Economics, 36(1). 103-119 (2008) point out that constitutio nal commitments to social rights are less prevalent in common law law countries than French civil law ones, but this does not inordinately impact on public policy, except in relation to health and social secur ity, although this might be more connected with public choice policies and organised groups, such as th e elderly.

5 legislative or administrative measure, usually on constitutional or public law grounds. Here, courts “are assimilating social rights enforcement” into the enforcement of traditional first-generation rights.34 Neither of these approaches has any impact on the performance of State bureaucracies, and this assimilation of some parts of social rights does little to improve the overall situation of the poor.35 A third approach, developed in South Africa, has been termed the “dialogical approach”, where the court declares that a social right must be enforced, but leaves the actual enforcement to the legislature or executive. This “weak form of review” allows courts to avoid complex public policy decisions citing separation of powers doctrines. A development on this approach involves requiring the Executive and the applicant to “engage with each other meaningfully.”36 Obviously, not all the elements of socio-economic rights are amenable to curial enforcement, and such marginalist, individualised treatment of social rights has limited results.

Clearly, classical legal liberal constitutional protocols on separation of powers preclude courts from ordering large scale spending prioritization.37 Another difficulty has arisen in some South American States where better-off litigants asserting constitutional rights to health have secured judgments requiring the State to provide drugs primarily to them.38 Indeed, some eminent contemporary writers argue that minimum core obligations must be fulfilled through general government programmes, and not necessarily by curial enforcement of individual entitlements on a universal basis.39

Minimum Core Obligations

While human rights scholars often claim credit for it, the notion of minimum core State obligations to ensure people’s basic existence is shared across the political spectrum. Frederich Hayek argued that substantive equality and distributive (social)

34 Landau, D. ‘The Reality of Social Rights Enforcement.’ Harvard International Law Journal, Vol. 53, Number 1, Winter 2012, 401-459 at 411. This confluence in treatment along the lines of existing civil and political rights was promoted by paragraph 5 of the first part of the Vienna Declaration and Programme of Action, approved by the World Conference on Human Rights (1993). Woods states that “While formalized in many legal instruments, economic, social and cultural rights remain the normatively underdeveloped step-child of the human rights family.” Woods, J.M. ‘Justiciable Social Rights as Critique of the Liberal Paradigm.’ Texas International Law Journal, 38 (2003) 763-93 at 767. 35 See Loveland, I. Housing Homeless Persons, (OUP, 1995); Halliday, S. Judicial Review and Compli ance with Administrative Law, (Oxford, Hart, 2004). 36 See Ray, B. Occupiers of 51 Olivia Road v City of Johanneburg: Enforcing the Right to Adequate H ousing through Engagement”, Human Rights Law Review 8: 4 (2008) 703-713. 37 See Government of South Africa and others v Grootboom and others CCT11/00 2001 (1) SA 46 (CC), 4 October 2000, 2000 (11) BCLR 1169 (CC). 38 See Ferraz, O.L.M. “Harming the Poor Through Social Rights Litigation: Lessons from Brazil”, Tex as Law Review [2011] Vol. 89, 1643-1668. In 2005, in Sao Paulo, Brazil, some 30% of the overall bud get for high cost drugs and 80% of the AIDS drugs was spent to comply with injunctions based on the r ight to health in the constitution, for more than 10,000 individuals. Ferraz suggests that health litigation has not benefitted the poor, and in fields where social rights (such as housing) are not of interest to the middle classes, not much judicialization takes place. 39 See Sachs, A, The Strange Alchemy of Life and Law, (Oxford, OUP, 2009), p. 182, where the former Supreme Court Judge defends the decision in the Treatment Action Campaign case (See Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC) para. 34) that the constitutional human rights obligations did not entitle everyone to demand that a minimum core be provided to them immediately.

6 justice conflicted with rule of law, but nevertheless he accepted that the government could provide a minimum level of support for the “unfortunate” in society.40 Similarly, Milton Friedman accepted the need for a guaranteed minimum income, albeit at a low level.41 Sen and Nussbaum argue for a minimum provision useful for the facilitation of human capabilities, leading to the development of people’s lives.42 A classical Marxist approach recognises that capitalism must ensure (either through wages or State welfare provision) that workers are able to work, but also that the working class must reproduce itself for the system to continue.43

Article 2(1) of the International Covenant on Economic, Social and Cultural Rights requires States to take steps ... “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized” (including housing rights).44 However, the initial UN focus on the concept of “progressive realization” facilitated the most recalcitrant of States to claim compliance.45 Indeed, without an established measurable baseline of minimum core obligations it is, in reality, impossible to properly measure any progressive realization. General Comment 3 (1991) established that:

…a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être.46

40 Hayek, F.A., The Road to Serfdom, (University of Chicago Press, 1944), p 133. “There can be no do ubt that some minimum of food, shelter, and clothing, sufficient to preserve health and capacity to wor k, can be assured to everybody”. 41 Friedman, M. (with Friedman, R.D.) Capitalism and Freedom, (Chicago, University of Chicago pres s, 1962), p. 192. 42 Sen A. K Inequality Re  examined(Oxford,  Clarendon  Press, 1992); Nussbaum, M. & Sen A. (eds.) The Quality of Life, (OUP, 1993) See McNaughton, Nicholls, C. ‘Housing, Homelessness and Capabilities’ Housing, Theory and Society, Vol. 27, No. 1, 23–41, 2010. 43 Marx, K. Capital, Vol. 1. Chapter 23 -"The maintenance and reproduction of the working-class is, and must ever be, a necessary condition to the reproduction of capital. But the capitalist may safely leave its fulfilment to the labourer's instincts of self-preservation and of propagation. All the capitalist cares for, is to reduce the labourer's individual consumption as far as possible to what is strictly necessary..." 44 Housing rights are enshrined in the Universal Declaration on Human Rights (1948) Article 25, and t he International Covenant on Economic, Social and Cultural Rights (1966) Article 11, as essential ele ments of the right to an adequate standard of living. 45 See Alston, P. & Quinn, G, “The Nature and Scope of States Parties Obligations under ICESCR”, 9 Human Rights Quarterly, (1987) 156-229; Robertson, R. (1994), “Measuring State Compliance with the Obligation to Devote the Maximum Resources to Realising Economic, Social and Cultural Rights” 16 Human Rights Quarterly 693. 46 UN Doc. E/1991/23, UN Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties obligations (Art. 2, par.1) 12/14/1990. Para 10.

7 Chapman and Russell describe the minimum core as one of the more difficult concepts in human rights, ‘bridging the gap, as it does, between lofty goals and available resources’.47

The concept of the minimum core has been applied to provide determinacy and even justifiability to the rights to food, health, housing, and education, and also (most ambitiously) to give substance to minimum legal obligations in both national and global distributive justice debates.48 In common law cases, Jheelan has highlighted the imprecision and vagueness, aspirational nature and ultimately reliance on a “reasonableness” curial test, which act as a delimitation on the effectiveness of universal minimum core obligation.49 Others have argued that “vague exhortations to the reasonable provide the State with little concrete idea as to what is required of it”.50 Liebenberg posits that there should be a presumption of unreasonableness, where minimum core obligations are not met, which the State would be required to rebut.51 Fredman argues that “the minimum core is defined according to the parameters of effectiveness, participation, accountability and equality. The need for the State to justify its omission in respect of the minimum core is then a reinforcement of the accountability parameter.”52

Drawing on first hand knowledge of the challenges facing the South African Courts, Bilchitz posits that there are, in fact, two levels to the minimum core obligations. The first threshold or the “minimum core” requires the provision of such resources as are required for people’s survival and individual liberty.53 These include basic shelter, food and minimal healthcare. This is the standard adopted in cases such as Grootboom54 and Limbuela.55 A higher second threshold necessitates a greater level of resources for realizing “the sources of value in the lives of beings.” 56 This involves a higher level of material resources, but does not involve complete fulfillment of

47 Chapman, A. & Russell, S. (eds.) (2002) Core Obligations: Building a Framework for Economic, So cial and Cultural Rights. Antwerp: Intersentia, pp. 8/9. It is variously referred to as minimum core cont ent, core content, essential elements, core obligations and minimum State obligations. 48 See Young, K. ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content.’ Yale Journal of International Law, Vol. 33, No. 1, 2008, which disaggregates three contrasting approaches to giving content to the minimum core: the normative essence which locates the minimum core within liberal values such as human dignity and the need for survival; the consensus approach which adopts the minimum consensus surrounding the content of such rights; the obligations approach relying on the obligations arising from the right. 49 Jheelan, N, (2007), “The Enforceability of Socio-economic Rights”, EHRLR 2 146–157. 50 Bilchiz, D. Poverty and Fundamental Rights. (OUP, 2007), p. 164. 51 Liebenberg, S. “The Value of Human Dignity in Interpreting Socio-economic Rights” (2005) 21 Sou th African on Human Rights, 1. 52 Fredman, S. Human Rights Transformed: positive rights and positive duties (Oxford, OUP, 2008), p. 87. 53 Bilchiz, D. Poverty and Fundamental Rights. (OUP, 2007), chapter 1. This valuable text adduces the requirements of the capabilities approach of Sen and those of the liberal political legal theorist Rawls, a mong others, towards a justification of legal and State recognition of the minimum core obligations, ad apted slightly from that set out within international human rights instruments. 54 Government of South Africa and others v Grootboom and others CCT11/00 2001 (1) SA 46 (CC), 4 October 2000, 2000 (11) BCLR 1169 (CC). 55 R. (on the application of Limbuela) v Secretary of State for the Home Department [2005] UKHL 66; [2006] 1 AC 396. See also Moldovan v Romania (2005) 44 EHRR 16 and Shantistar Builders v Naray an Khimalal Totame [1990] 1 SCC 520 for similar reasoning. 56 Bilchiz, D. Poverty and Fundamental Rights. (OUP, 2007), p. 40.

8 “each being’s particular purpose.”57 There is also a third aspect, which requires the provision of shared experiential or purposive dimensions of value to people, such as facilities for music, sport etc. Of course, the obligation of progressive realization requires continuous improvement to all these. It is thus possible to specify a threshold of priority at a level greater than that required for survival, but which does not involve the complete fulfillment of each beings’ particular purposes.58

Bilchitz suggests three distinct meanings for the term “adequate” within social rights texts. Firstly, minimum core obligations at threshold one, required to sustain life, could in housing terms comprise a basic shelter, even a tent. Second, general conditions which are necessary for people to realize their goals and flourish, require a higher standard. Thirdly, general conditions required in any particular society (such as an advanced industrialized society) are required for people to realize their goals and flourish.59 In any case, the level of provision should not be confined to meeting the lowest threshold of the minimum core, which should provide a floor and not a ceiling. This approach demonstrates rights usefulness in prioritization, rather than prescribing total dedication of State budgets. Bilchitz argues that the threshold one minimum core must be implemented by States immediately, “as it is simply unacceptable for human beings to be without sufficient resources to be free from threats to their survival.”60

King utilizes the concept of the “social minimum,” or a claim for resources required for a minimally decent life.61 This involves resources to meet a healthy subsistence threshold, meeting basic physical needs of shelter, nutrition, childhood development, health, psychological integrity; a social participation threshold involving education, insurance against economic shocks and resources for minimal social engagement with family and peers; and finally an agency threshold, involving education and economic stability to engage in basic life-planning, framing and achieving long term goals.62 King also argues that this social minimum should be independently measured, i.e., away from political considerations.

Housing Rights

There is a ubiquitous acknowledgement of access to housing as a human right. However, both neo-liberal and social democratic governments across the world accept the market as the primary provider of housing. In both systems, State action is acceptable to regulate the excesses of the housing market, and to intervene when the market fails (including the provision of social and subsidized housing). Marcuse and Keating point out that the only disagreement between these two dominant global political perspectives is on how serious that failure is at any one time, and just what

57 Ibid., p. 40. 58 Ibid., p. 45. 59 Ibid., p. 192. 60 Ibid., p. 204. 61 Based on White, S., Social Minimum (Stanford Encyclopedia of Philosophy, 2004) available at: http: //plato.stanford.edu/entries/social-minimum (accessed 26 November 2012); See also Dutschke, Mira, N olan, Aoife, O'Connell, Rory, Harvey, Colin and Rooney, Eoin, Budgeting for Economic and Social Ri ghts: A Human Rights Framework (October 5, 2010). Available at SSRN: http://ssrn.com/abstract=16 95955 or http://dx.doi.org/10.2139/ssrn.1695955 62 King, J. Judging Social Rights (Cambridge University Press, 2012), pp. 29-30.

9 governments should do about it.63 These two dominant political approaches can be contrasted with the archetypal right-to-housing position “in which government’s first obligation is to see that all are decently housed, and the for-profit market is managed and regulated in a way subservient to that goal.”64 The for-profit market is the default position for neo-liberal and social democratic policies, while the default position of the right-to-housing approach is State support for universal decent and affordable housing (but allowing the for-profit market to function where it does not interfere or frustrate that position).

Housing policies around the world, since the 1970s, have involved States creating conditions, institutions and regulations aimed at supporting globalised housing financial systems promoting homeownership as the primary tenure, under the neoliberal paradigm on private property and market forces.65 Housing has been promoted as a financial asset rather than a home, and the subsequent securitisation of housing loans has integrated housing finance into global capital movements, effectively freezing mortgage law development. Simultaneously, sale and privatization of social housing programmes has become the norm. The allocation and rationing of social and subsidized housing among the increasing numbers of eligible applicants has focused on rights entitlements as levers of prioritization, drawing social rights jurisprudence into the limelight.

Housing rights operate at three levels: the traditional legal liberal micro level (the level of individual aspirations, interactions and micro political struggles); the meso- level (including the housing systems, its subsystems and institutional contexts) and the macro (broadly the national, regional and international context within which housing systems interact with other systems.66

At a meso level, regulatory norms that establish minimum standards and equality of access to goods and services are widespread.67 Many housing rights are enshrined in both private and public law at national and local level, such as regulations on rights of

63 See Marcuse, P. & Keating, W.D. ‘The Permanent Housing Crisis: The Failures of Conservatism and the Limitations of Liberalism”, in Bratt et al. A Right to Housing, (Temple University Press, Philadelph ia, 2006); For a thorough examination of the arguments in favour of a right to housing from a contemporary American legal perspective see Adams, K.D. (2009) “Do We Need a Right to Housing?” Nevada Law Journal, Vol. 9, No. 2. 275–423. 64 Marcuse, P. & Keating, W.D. ‘The Permanent Housing Crisis: The Failures of Conservatism and the Limitations of Liberalism”, in Bratt et al. A Right to Housing, (Temple University Press, Philadelphia, 2006), p. 139. 65 See UN Doc. A/67/286. Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (August 2012), para. 3. See De Soto, H. (2000). The Mystery of Capital; Why Capitalism Triumphs in the West and Fails Everywhere Else. (London, Bantam Books); Buckley, R.M. & Kalarickal, J. ( 2006). Thirty Tears of Shelter lending: What Have We Learned?; World Bank (1993). Housing: Enabling Markets to Work. Washington, World Bank. 66 The analytic framework and terminology of macro, meso, micro are widely used to denote different levels of society or systems. See for instance Dopfer, K., Foster, J. & Potts, J. ‘Micro-meso-macro’, Journal of Evolutionary Economics (2004) 14: 263-279. There is insufficient space to deal with housing rights at the meso level here, but see Kenna, P. “Can international housing rights based on public international law really impact on contemporary housing systems?” in Fox, L, & Sweeney, J. (eds.) (2011) The Idea of Home in Law - Displacement and Dispossession. Ashgate: Farnham, Surrey. 67 Sunstein, C. After the Rights Revolution: Reconceiving the Regulatory State. (Cambridge, Harvard University Press, 1990).

10 access, building standards, planning, sanitation and associated law and decisions.68 There are detailed legal regulations and institutionalised regulatory systems on land use, building standards, housing cost controls, all with legally enforceable sanctions for violations, and compensation for breaches. Courts across the world have enforced housing rights in areas of security of tenure, respect for home, non-discrimination, decent physical standards and fair procedures in evictions.69 This regulatory machinery seeks to protect, preserve and promote the physical and mental health and social well-being of people, control nuisances, prevent and control communicable diseases and regulate adequate sanitation and public health.70 The use of planning law to achieve integration of social/affordable and private housing, control of land use and quality of infrastructure and amenities is now becoming widely recognized, as a somewhat lateral, but practical, means of realizing some housing rights.71 Indeed, some of these measures can go so far as delimit and deny traditional civil and political rights, such as property rights, by extended rights of occupancy for tenants overriding the legal owners powers to sell.72

However, it is within the macro and micro levels that housing rights are most publicly contested and where this review will focus. Housing rights at the macro level have developed from the international human rights instruments and institutions as part of the array of socio-economic rights (sometimes described as social rights).73 In terms of public international law, the UN Committee on Economic, Social and Cultural Rights (UNCESCR) offers a global supervisory mechanism for the implementation of rights, while the Council of Europe, European Committee of Social Rights (ECSR) is creating valuable contemporary clarifications on the nature and extent of housing rights.74 Its sister Council of Europe organization, the European Court of Human Rights (ECtHR), is also developing housing rights in an oblique and unpredictable way as part of a contemporary expanded interpretation of the “life, liberty, property”

68 UN-Habitat UNHP Report Series, No. 3. National housing rights legislation (3rd ed) (HS/638/01E) (Nairobi, 2006); UN-Habitat UNHRP Report Series, No. 1, Housing rights legislation: Review of international and national legal instruments (HS/638/01E) (Nairobi, 2002); Centre on Housing Rights and Evictions, Sources No. 4: Legal Resources for Housing Rights: International and National Standards, (COHRE, Geneva, 2000): Leckie, S. (ed.) National Perspectives on Housing Rights. The Hague, Kluwer Law International. See, for example, Burridge, R. & Ormandy, D. ‘Health and Safety at Home: Private and Public Responsibility for Unsatisfactory Housing Conditions,’ Journal of Law and Society, Vol. 34, No. 4. (December 2007), 544-66. 69 See Bryson, D.B. “The Role of Courts and a Right to Housing” in Bratt et al. A Right to Housing, (T emple University Press, Philadelphia, 2006). 70 Angel, S. Housing Policy Matters – A Global Analysis (OUP, 2000), pp. 155-160. 71 Ponce-Sole, J. (ed.) (2006) Land Use Law, Housing and Social and Territorial Cohesion. Denver, Rocky Mountain Institute. See Kenna, P. (2011) Housing Law, Rights and Policy, Dublin: Clarus Press. 72 McCrudden, C. Buying Social Justice: Equality, Government Procurement, and Legal Change. (Oxford, OUP, 2007). 73 In Europe, these include rights to healthcare, housing, pensions, education, social assistance etc. See Bengtsson, B. “Housing as a Social Right: Implications for Welfare State Theory” (2001) 24(4) Scandinavian Political Studies 255; Koch, I. E. "Dichotomies, Trichotomies or Waves of Duties?" (2005) 5(1) Human Rights Law Review 81; Mikkola, M. (2010) Social Human Rights in Europe, Helsinki: Legisactio Oy. 74 The Council of Europe, established the European Code of Social Security and its Protocol, as well as the Revised European Code of Social Security, providing minimum standards and permitting the contra cting parties to exceed these standards.

11 base of civil and political rights.75 The traditional legal liberal micro level approach to housing rights at the level of level of individual aspirations, interactions and micro political struggles readily translates into individual claims in the courts.

However, international housing rights are not easily translated into housing system rules, processes and frameworks. Real effectiveness requires a detailed understanding of the implementation of law and policy is crucial.76 Indeed, traditional housing rights indicators based on shelter and bricks and mortar approaches are being superseded by a focus housing rights as a means to an end, rather than an end in itself. For instance, Article 19 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) provides for a right in relation to “Living independently and being included in the community” whereby States must take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.77 This includes ensuring that persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.78 Similarly, women’s perspectives on housing rights can enhance existing definitions. 79

Housing Rights in Europe

In European States, State intervention in the market has been the norm, with large- scale public expenditure in social and subsidized housing, securing access to adequate and affordable housing to almost all.80 European States have a legacy of intervention and regulation in housing systems with a range of enforceable housing rights and entitlements. Today, these often encapsulate concepts of social cohesion, affordability

75 See, for instance, M.S.S. v. Belgium and Greece (Grand Chamber) (Application no. 30696/09) Judgm ent 21 January 2011; Moldovan v Romania (2005) 44 EHRR 16. See O’ Cinneide in “A Modest Proposal: Destitution, State Responsibility and the European Convention on Human Rights” EHRLR 2008, 5, 583-605 suggests that the ECtHR protects victims of State inflicted destitution by interpreting the “objective and purpose” of ECHR civil and political rights and, secondly, by giving “substantive effect to human dignity and respect for the individual”. 76 Hill, M, & Hupe, PL, (2nd ed.) Implementing Public Policy, (Sage, London, 2009). The challenges of implementing State or international obligations within the organisation, management and prioritisation of administrative meso-level systems are rarely examined in human rights discourse. See J.L. Pressman and A. Wildavsky, Implementation (3rd edn University of California Press, Berkeley, Los Angeles 1984); A. Dunsire, The Execution Process, Vol. 1: Implementation in a Bureaucracy (Martin Robertson, Oxford 1978). See Kenna, P. “Can international housing rights based on public international law really impact on contemporary housing systems?” in Fox, L, & Sweeney, J. (eds.) (2011) The Idea of Home in Law - Displacement and Dispossession. Ashgate: Farnham, Surrey. 77 This UN Treaty follows a pattern of avoiding class as an issue, with a focus on distribution of resour ces rather than production processes. 78 See Report of Inclusion International, Inclusive Communities = Stronger Communities, Global Report on Article 19: The Right to live and be Included in the Community, (London, October 2012). 79 Westendorp, I, Women and Housing: Gender makes a Difference (Antwerp, Intersentia, 2007). 80 Scanlon, K. & Whitehead, C. (Ed.) Social Housing in Europe II. A review of policies and outcomes, (London, LSE, 2008).

12 and social inclusion.81 Whether based on social rights, party political policies, or the convergence of industrial economies, social expenditure as a percentage of GDP in OECD States has risen from 15.7% in 1980 to 22.1% in 2012, while real social spending in EU States (which are OECD States) has stabilized, although it is falling in Greece, Hungary, Iceland and Portugal.82 Total general government expenditure in the EU 27 States on environmental protection, housing and community amenities increased from 1.8% to 1.9% of GDP amounting in 2009 to some €231,634 million.83

Significant housing rights development has taken place within European States in recent years, while the penetration of ECHR norms into national housing law has been far reaching.84 The French “droit au logement opposable” (DALO) (2007), and recent legislation in Scotland established new levels of State housing obligations.85 The Fédération Européenne des Associations Nationales Travaillant avec les Sans-Abri (FEANTSA) has developed a set of indicators of homelessness and inadequate housing which identifies three domains constituting a home, the absence of any of which can be taken to delineate homelessness.86

Indeed, the growing influence of EU law and supra national governance on national housing and other laws and policies is considerable. The role of the European Court of Justice (now CJEU) in establishing the primacy of EU law and its associated human rights (though not necessarily socio-economic rights) norms over national and local laws, based on general principles of EU law, has been progressive.87 Similarly, every amendment of the Treaties has progressively advanced fundamental rights protection. However, as Bogdandy and others have pointed out “there is scant European Union action so far in case of serious fundamental rights violations in Member States. In this respect, the defence of the Union’s foundational values (Art. 2 TEU) is largely left to national and international institutions”.88

Of course, housing rights have long been considered indirectly in EU law. Since

81 Frazer, H. and Marlier, E. (2009) Homelessness and Housing Exclusion across EU Member States ((Brussels: European Commission). 82 Adema, W., P. Fron and M. Ladaique (2011), “Is the European Welfare State Really More Expensive?: Indicators on Social Spending, 1980-2012; “Manual to the OECD Social Expenditure Database (SOCX)”, OECD Social, Employment and Migration Working Papers, No. 124, OECD Publishing, pp. 13 & 41. 83 See Eurostat, Statistics in Focus, 42/2011, General Government expenditure trends 2005-2010: EU c ountries compared, p. 10. 84 Cowan D., Hunter C., Pawson H. (2012) "Jurisdication and scale: rent arrears, social housing and hu man rights" Journal of Law and Society 39(2) 269-295; Kenna, P. Housing Law, Rights and Policy, (D ublin, Clarus Press, 2011), chapter 8. 85 Olds, K. The Role of Courts in Making the Right to Housing a Reality Throughout Europe: Lessons f rom France and the Netherlands”, Wisconsin International Law Journal, Vol. 28, No. 1. 170-199 (201 0). FEANTSA The Right to Housing – The Way Forward – Homeless in Europe (Autumn 2008) (Bruss els: FEANTSA); Bernard, N. & Hubeau, B. Recht op wonen: naar een resultaatsverbintenis? Droit au logement: vers une obligation de résultat?, (Brugge: Die Keure, 2013). 86 Edgar et al. (2007) Measurement of Homelessness at European level. (Brussels; FEANTSA). 87 Craig, P.P. & De Burca, G. EU Law: Cases and Materials (Oxford University Press, 5th ed., 2011), chapter 11. 88 Bogdandy et al. ‘Reverse Solange – Protecting the esseence of fundamental rights against EU Memb er States,’ Common Market Law Review, 49, 489-520, 2012, at pp. 489-90. Bogdandy suggests that the presumption of compatibility with fundamental rights of EU law should also be applied to national law s in EU States.

13 Regulation 1612/68 (now 492/2011), housing rights for those moving between EU States have been litigated.89 Housing rights issues have been central in a range of cases on non-discrimination and citizenship rights, with the recent Luis Zambrano case establishing that the non-EU parents of an EU born child could claim housing rights.90 Today, the main principle to ensure the social protection of the mover in a non-discriminatory way,91 through the “Citizens Directive”,92 to a wider substantive set of citizenship rights set out in the TFEU,93 has led to a number of housing related cases.94 Over the decades, the synthesis of citizenship, residence, free movement and non-discrimination have created a plethora of housing related cases, each drawing on a relevant EU measure, albeit along legal liberalist lines. At the level of individuals enforcement of social rights the limited litigation role of the EU Agency for Fundamental Rights,95 Commission reticence in initiating EUCFR cases, and CJEU reserve in addressing EU law inconsistencies between those who migrate and those who remain in their national State, remains problematic.96 National courts can request a “preliminary ruling procedure” under Article 267, 97 while the European Commission can instigate proceedings against Member States for failure to fulfil their obligations under EU law, including human rights protection.98 Despite significant State intervention, there is a pattern of poor housing in Europe. According to Eurostat, 30 million people in the EU suffered both lack of space and poor housing conditions in 2009.99 Some 6% of the EU population suffered from

89 Case 249/86 Commission v Germany [1989] ECR 1263; Case 63/86 Commission v Italy [1988] ECR 29: 2 CMLR 601; Joined Cases C-389/87 and C-390/87 Echternach and Moritz [1989] ECR 723; Case C-85/96, Martinez Sala v Freistaat Bayern [1998] ECR I-2691; Carpenter v Secretary of State [2002] ECR I-6279; Case C-413/99 Baumbast and R v Secretary of State [2002] ECR I-7091; Case C-152/05 EC v Germany [2008] ECR I-39. 90 Case C-34/09 Zambrano v Belgium (8 March 2011). 91 Costello, C. “Metock: Free movement and normal family life in the Union” Common Market Law Review, 46, 2009, 587. 92 Directive 2004/58/EC; Directive 2003/109/EC; Directive 2003/86/EC. 93 Contingent upon a cross-border element – see for example Spaventa, E. ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’ (2008) 45 Common Market Law Review 13. See also Wollenschläger, F. “A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration” European Law Journal, Vol. 17, No 1. January 2011, pp. 1-34. 94 Case C-310/08 LB of Harrow v Ibrahim; Case C-480/08 Teixeira v LB Lambeth; Case C-434/09 McCarthy v Secretary of State; Case 571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Pro vincia autonoma di Bolzano (IPES) and Others. 95 Regulation 168/2007/EC establishing a European Union Agency for Fundamental Rights, OJ L53/1, 2007. See Kenna. P. (2005) Housing Rights and Human Rights, (Brussels; FEANTSA). 96 Case C-34/09 Zambrano v Office national de l’emploi Opinion Sharpston A-G of 30 September 2010, para 173. 97 Court of Justice of the European Union, Recommendations to national courts and tribunals in relatio n to the initiation of preliminary ruling procedures, OJ 2012/C 338/01. 98 Article 258 TFEU. 99 Rybkowska, A. & Schneider, M. (2011) Statistics in focus, Population and social conditions, Eurostat, 4/2011. In 2008, the EU adopted a Regulation establishing common rules for the decennial provision of comprehensive data on population and housing, establishing a common set of housing topics to be collated by Member States. See Regulation EC 763/2008 13.8.2008, OJ l 218/14. See also Regulation (EC) No. 315/2006 of 22 February 2006 implementing Regulation (EC) No 1177/2003 of the European Parliament and of the Council concerning Community statistics on income and living conditions (EU-SILC) as regards the list of target secondary variables relating to housing conditions. “Severe deprivation” is defined the percentage of the population living in a dwelling which is considered to be overcrowded, and with at least one of the following three housing situations: (1) a

14 severe housing deprivation. The most frequent problems were noise from the neighbourhood (22.2%), overcrowding (17.8%) and pollution, crime or other environmental problems (16.5%). In addition, 12.2% of people in the EU lived in households affected by high housing costs. Direct State housing provision for low incomes households is diminishing, and some States are unable to dedicate any resources towards social housing. Homelessness has risen across the EU as the economic and financial crisis has persisted.100 Similarly, the extent of material deprivation or “the inability to live a decent life” increased dramatically in some EU States such as Greece, the Baltic States, Ireland and Spain since 2008.101

The European Commission Europe 2020 Strategy contained an EU poverty target defined as: “…promoting social inclusion, in particular through the reduction of poverty, by aiming to lift at least 20 million people out of the risk of poverty and exclusion.”102 However, it is noticeable that the concept of a “Social Europe” or a major commitment to social cohesion, once common in EU policy statements, no longer appears. Meanwhile, the European Parliament has declared that “homelessness continues to affect people in all EU Member States and is an unacceptable violation of human rights”.103

As the EU abandons its commitment to social cohesion and a “Social Europe,” those excluded from housing markets and the limited available social housing will rely more on social and economic rights.. While the EU has developed many “soft law” measures around social inclusion, there is no clear set of enforceable housing rights at national level based on EU law. As Craig and De Burca point out “The Treaties still do not provide the EU with ‘any general power to enact rules on human rights.’104 In this context, the EU Charter of Fundamental Rights (EUCFR) with its “right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources”105 is poised to become a key influence in the balance of competing free market or “social Europe” ideologies. Indeed, the centrepiece and touchstone for EU human rights will be the EUCFR, embedded within Treaty law by Article 6 TEU, and drawing on other human rights provisions.106

The Charter of Fundamental Rights

leaking roof, or damp walls, floors, foundations, or rot in window frames or floor (referred afterwards as ‘leaking roof’), (2) neither a bath, nor a shower, nor an indoor flushing toilet, or (3) too dark. 100 European Commission, Research note 8/2011, Homelessness during the crisis, Brussels, Employme nt, Social affairs and Inclusion, European Commission. 101 European Commission (June 2012) EU Employment and Social Situation, Quarterly Review, Brusse ls European Commission., p. 48. 102 For an evaluation of the open method of coordination in the field of social inclusion and considerati on of the new ‘Europe 2020’ strategy see Frazer, H., Marlier, E. & Nicaise I. A social inclusion roadm ap for Europe 2020, (Antwerp, Garant, 2010). 103 See Declaration of the European Parliament of 16 December 2010 on an EU homelessness strategy, EP T7-0499/2010. 104 Craig, P. & De Burca, G. EU Law: Cases and Materials (Oxford University Press, 5th ed., 2011) p. 392. 105 Charter of Fundamental Rights of the European Union, Art. 34(3) OJ 2010/C 83/02. 106 OJ 2010/C 83/02; Craig, P. P. ‘The Charter, the ECJ and national courts’ in Ashiagbor, D., Countouris, N. & Lianos, I. (2012) The European Union after the Lisbon Treaty, Cambridge University Press, p. 78.

15 The EUCFR, in force in 2009, could be described as a EU human rights “hold-all”.107 It represents a “codification” of fundamental rights jurisprudence, but also an extension of EU rights into areas of “solidarity” hitherto avoided by EU law.108 Article 34(3) states:

In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices.109

The Explanations providing guidance on the interpretation of the Charter110 state that paragraph 34(3) of the Charter draws on Articles 30 and 31 of the Council of Europe Revised Social Charter.111

Articles 30 and 31 of the European Social Charter provide for a right to protection against poverty and social exclusion, and a right to housing, respectively. However, unlike similar UN instruments there are no resource limitations in the text of the Social Charter, and States have not pleaded lack of resources as a justification for non-compliance.112 In Autism-Europe v France the ECSR set out the following formula for the realization of expensive social rights:

When the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State party must take measures that allow it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources113

107 The version of the EUCFR is that approved in 2007, rather than that proclaimed in 2000. Poland and UK have negotiated opt out arrangements in relation to some effects of the Charter. See Craig, P. & De Burca, G. EU Law: Cases and Materials (Oxford University Press, 5th ed., 2011, chapter 11. 108 O’ Neill, A. ‘The EU and Fundamental Rights – Part 2’ [2011] Judicial Review 374-398. 109 OJ 2010/C 83/02. De Waele points out that Article 34(2) is of stellar importance as it proclaims that “everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices”. He points out that “Everyone, i.e. excluding none –Pandora’s box might never appear more open, and it seems incredible that the Member States managed to agree on the inclusion of this phrase”. See de Waele, H. ‘EU Citizenship: Revisiting its Meaning, Place and Potential, European Journal of Migration and Law, 12, (2010) 319-336 at 333. Douglas-Scott, S. ‘The Charter of Fundamental Rights as a Constitutional Document’, [2004] European Human Rights Law Review 37. See also Tooze, J. ‘Social Security and Social Assistance’, in Hervey, T, & Kenner, J. (2003) Economic and Social Rights in the EU Charter of Fundamental Rights. Oxford: Hart. 110 Explanations relating to the Charter of Fundamental Rights (OJ 2007/C 303/02). However, the Charter also states that in relation to the Explanations: “Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter.” 111 Indeed, most of the Articles of the Charter are worded identically or clearly based on rights set out i n the European Convention on Human Rights and the European Social Charter and Revised Charter. 112 Harris, D. J. ‘Collective Complaints under the European Social Charter: Encouraging Progress?’ in, Kaikobad, K. H. & Bohlander, M. (eds.) International Law and Power: Perspectives on Legal Order and Justice (Leiden, Brill, 2009). See also Brillat, R, ‘The Supervisory Machinery of ECS: Recent Developments and their Impact,’ in De Burca, G. & De Witte, B. (eds.) Social Rights in Europe. (Oxford, OUP, 2005); It is significant that while the UNCESCR accepts that “any deliberately retrogressive measure requires the most careful consideration” (Committee on Economic Social and Cultural Rights, General Comment No. 3, The Nature of States Parties Obligations U.N. Doc. E/1991/23 annex III at 86 (1990) paragraph 9), there is no such terminology in the text of the European Social Charter. 113 Council of Europe, Collective Complaint No. 13/2002, para 53.

16 Again, in FEANTSA v France114 the ECSR pointed out although not based on an obligation of results, housing rights measures taken must be practical and effective, rather than purely theoretical. States must:

a. adopt the necessary legal, financial and operational means of ensuring steady progress towards achieving the goals laid down by the Charter; b. maintain meaningful statistics on needs, resources and results; c. undertake regular reviews of the impact of the strategies adopted; d. establish a timetable and not defer indefinitely the deadline for achieving the objectives of each stage; e. pay close attention to the impact of the policies adopted on each of the categories of persons concerned, particularly the most vulnerable.115

The Explanations state that the Union must respect the EUCFR in the context of policies based on Article 153 of the Treaty on the Functioning of the European Union”.116 Article 153 obliges the EU to support and complement the activities of the Member States in the combating of social exclusion.117 Indeed, the terms “so as to ensure a decent existence for all” resonate with many EU social inclusion objectives and indicators.118 The EU Social Protection Committee119 has been developing indicators and benchmarks which assess Member State situations in relation to poverty and social exclusion.120 The Commission Report (2011) on The Measurement of Extreme Poverty in the European Union121 pointed out that the EU has now developed a “material deprivation indicator” based on lacking 3+ out of 9 indicators of poverty and social exclusion, and this is an EU wide threshold.122 This Report

114 Collective Complaint No. 39/2006. 115 Collective Complaint No. 39/2006, paras 55-56. “Adequacy” in housing was defined in ERRC v Ital y (Collective Complaint No. 27/2004) as a dwelling that is structurally secure, safe from a sanitary and health point, i.e. possesses all basic amenities, such as water, heating, waste disposal, sanitation facilitie s, electricity; not overcrowded and with secure tenure supported by law. 116 A natural reading of this sentence would imply that all EU social inclusion and social protection me asures and policies must now be rights-based. 117 Article 153(1)(j). Article 153(2)(a) limits those to actions which encourage cooperation on knowledge, information, best practice etc, rather than any harmonization of laws and regulations. However, Article 153(4) states that such measures “must not significantly affect the financial equilibrium thereof”. See Armstrong, K.A. (2010) Governing Social Inclusion – Europeanization through Policy Coordination, Oxford, OUP. 118 Atkinson, A.B. & Marlier, E. (eds) (2010) Income and living conditions in Europe, Luxembourg: European Union. 119 This Committee is established under Article 160 TFEU and it has only “advisory status to promote cooperation on social protection policies between Member States and with the Commission.” 120 Clearly, this is an EU body which falls within the scope of Article 51(1) EUCFR. See also Doherty, J. Frazer, H., Marlier, E. & Nicaise I. A social inclusion roadmap for Europe 2020, (Antwerp, Garant, 2010); Atkinson, T., Cantillon, B., Marlier, E. & Nolan, B. (2002) Social Indicators: The EU and Social Inclusion, Oxford: Oxford University Press; Marlier, F. et al. (2007) The EU and Social Inclusion: Facing the challenges, Bristol: The Policy Press. 121 See Bradshaw, J. & Mayhew, E. (2011) The Measurement of Extreme Poverty in the European Union, Brussels: European Commission. 122 Based on the work of Guio, A.C. (2009) “What can be learned from deprivation indicators in Europe? Paper presented at the Indicators Sub-Group of the Social Protection Committee”, Eurostat Methodological Working Papers http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-RA-09-007/EN/KS-RA-09-007-EN.PDF

17 concluded that there was now a case for adding three additional housing related indicators to the index:

 Leaking roof/damp walls/floors/foundations or rot in the window frames  No bath or shower  No indoor flushing toilet for sole use of the household

The EU has now fixed on the 4 out 9 deprivation measure for one of the three elements of the 2020 poverty reduction target.123 The European Commission study also found that seven countries linked their main national poverty thresholds in some way to their minimum income/social assistance scheme or to other benefits/reimbursements.124

While the EUCFR could offer clear and substantive housing rights, it can only be engaged in the context of an European Union institution or Member States implementing an EU law measure, rather than offering stand alone rights.125 Article 51(1) EUCFR stipulates that its provisions are (i) addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and (ii) to the Member States only when they are implementing Union law. The institutions, bodies, offices and agencies of the Union include, among others, the European Central Bank, the Court of Justice of the European Union and European Commission.126 The European Commission has undertaken a range of measures to ensure that the EU as a body complies with Charter obligations.127

The question as to when Member States “are implementing EU law” under Article 51(1) EUCFR remains a central and contentious issue.128 Indeed, the Explanations state that respect for fundamental rights is only binding on Member States “when they act in the scope of Union law,”129- a somewhat wider concept. Member States act under EU law in three different scenarios. Firstly, as agents of the Union executing and implementing EU law – Treaties, Regulations, Directives and decisions.130

123 See Bradshaw, J. & Mayhew, E. (2011) The Measurement of Extreme Poverty in the European Union, Brussels: European Commission, p. 9. 124 The countries were Cyprus, Estonia, Hungary, Lithuania, Netherlands, Poland and Portugal. See Bradshaw, J. & Mayhew, E. (2011) The Measurement of Extreme Poverty in the European Union, Brussels: European Commission, p. 35. 125 Craig, P. P. ‘The Charter, the ECJ and national courts’ in Ashiagbor, D., Countouris, N. & Lianos, I. (2012) The European Union after the Lisbon Treaty, Cambridge University Press. 126 For details of EU institutions and agencies see http://europa.eu/institutions/index_en.htm. See Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes. 127 See Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union COM (2010)Final Brussels, 19.10.2010. See also Operational Guidance on taking account of fundamental rights in Commission Impact Assessments, SEC(2011) 567 Final. But see De Jesus Butler, I. ‘Ensuring compliance with the Charter of Fundamental Rights in legislative drafting: the practice of the European Commission’, European Law Review, Issue 4, 2012, pp 379–418. 128 See Chalmers, D., Davies, G. & Monti, G. European Union Law (Cambridge: Cambridge Universit y Press, 2010), pp. 254-255; Anderson, D. & Murphy, C.C. The Charter of Fundamental Rights: Histor y and Prospects in post-Lisbon Europe, EUI Working Papers, Law 2011/08; Case C-34/09 Zambrano, Opinion of Sharpston AG of 30 September 2010, paras. 156-177. 129 OJ 2007 C 303/17, p. 22. 130 Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft. [1989] ECR 2609.

18 Secondly, when States seek to derogate from EU law, this has also been held to engage EU law.131 Thirdly, where specific rules of EU law are applicable, even though the Member State is not implementing or derogating from the Treaties as such. However, as Van Elsuwege states:

Taken to its logical conclusion, this implies that every time a member State regulates within a field where the Union has adopted its own rules, for instance with regard to consumer protection, environmental law or any other policy competence, those national acts become amenable to scrutiny for their compliance with the EU’s fundamental rights standards.132

Indeed, Advocate General (AG) Sharpston in Zambrano133 has suggested that:

… the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence. To put the point another way: the rule would be that, provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised.134

Clearly, any EU primary or secondary legislation related to housing and accommodation related being exercised by States must comply with EUCFR housing rights obligations.135 Indeed, any “minimum core obligation” must relate to the standards established under EU social inclusion measures, and such core rights “must be understood as referring to those which, by helping to satisfy basic needs such as food, accommodation and health, combat social exclusion”.136

Conclusion

Focusing on housing rights through the prism of individual enforcement of remedies provides valuable liberal legalist scholarship.137 Much of the current debate on individual enforcement of social rights revolves around liberal constitutional separation of powers and public resource allocation arguments, - a situation which the EU, with its direct application of supra EU law avoids. Individual enforcement of constitutional social rights, on the same basis of civil and political rights, has proven

131 Case C-260/89 Elliniki Radiophonia Tileorasi v. Dimotiki Etairia Pliroforisis [1991] ECR I-2925. 132 Van Elsuwege, P. ‘New Challenges for Pluralist Adjudication after Lisbon: The Protection of Funda mental Rights in a Ius Commune Europeaeum,’ Netherlands Quarterly of Human Rights, Vol. 30/2, 19 5-217, 2012 at 200. 133 Case C-34/09 Zambrano v Office national de l’emploi Opinion AG Sharpston of 30 September 201 0. 134 Ibid., para 163. 135 See M. E. and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (Ireland) (Case C-493/10); N.S. v Secretary of State for the Home Department (UK) (Case C- 411/10), (Grand Chamber) (2011); Case 571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others. 136 Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolza no (IPES), and Others, Opinion of AG Bot, para 97. 137 But these have been shown to be grossly inadequate in how they relate to the reality of people’s ho mes. See Fox, L, “The Meaning of Home: A Chimerical Concept or a Legal Challenge?” Journal of L aw and Society, (2002) Vol. 29, No. 4, 580-610.

19 counterproductive as in Brazil, and of limited value in South Africa. Class actions, could of course transform this legal landscape, but few human rights scholars seem to advocate these. Of course, all these arguments are confined to lawyers, mainly constitutional lawyers, leaving non-lawyer social rights advocates appear bewildered. Indeed, the judicial, legislative and executive functions are viewed by non-lawyers as together forming the apparatus of the State, the local guarantor of international human rights.138

Perhaps, a significant part of the disappointment arising from the ineffectiveness of constitutional rights to deliver social rights lies in a misplaced expectation of the power of courts. It is clear that in the absence of significant legislative/regulatory measures and large-scale expenditure on social rights, courts have a limited role. Indeed, it is important that the trend to assimilate elements of socio-economic rights into customary civil and political rights curial approaches must not diminish or deny the need for such large-scale finance, programmatic and political commitment to social rights implementation. However, the silver-bullet model of State welfare transformation arising from individualized curial judgments, illustrates, in many a ways a deficiency in human rights scholarship. Devoid of the contextual, social, historical, political and economic considerations, this approach may, in fact, justify a reduction of welfare standards in European States, to a lower international minimalist human rights standard.

Pinning a rights-based minimum standard approach to a highly targeted needs-based system of social housing provision can result in spatial segregation, peripheral housing and concentrations of large single tenure locations or institutions.139 A better approach is King’s social minimum,” - a claim for resources required for a minimally decent life, involving both basic needs, social participation needs and an agency threshold, involving education and economic stability to engage in basic life-planning, framing and achieving long term goals.140 This level of a social minimum resonates closely with that being advanced with the EU and many European national welfare States. Within these welfare States rights can play a key role in two ways. Firstly, they offer a legitimate template of interpretation in disputes on rules-based entitlements, and secondly, they can ensure that those who are not included within the scope of entitlements have a legitimate remedy. King points out that just in the area of social security and child support, in a recent year, the UK specialist tribunal service dealt with some 279,000 cases, compared with less than 500 administrative judicial review applications in the same year for all topics.141 Clearly, there is a valuable role for courts in providing a backdrop - a judicial safety net, asserting rights and remedies for those whom the welfare system has ignored or excluded. The standards adopted are not those of the UN minimum core obligations, but those of modern welfare States. Equally, the contemporary European-wide normative standard of “decent existence” is central to any housing rights interpretation. As Whelan and Donnelly argue “courts should not be fetishized. They are frequently useful, often essential implementation mechanisms. In some countries, however, some rights are at least as well

138 Hay, C., Lister, M. & Marsh, D. (2006) The State – Theories and Issues, Basingstoke: Macmillan. 139 Andrews, D., A. Caldera Sánchez and Å. Johansson (2011), “Housing Markets and Structural Policies in OECD Countries”, OECD Economics Department Working Papers, No. 836, OECD Publishing, pp. 45/46. 140 King, J. Judging Social Rights (Cambridge University Press, 2012), pp. 29-30. 141 Ibid., p. 49.

20 implemented by non-judicial means…In Europe the regional system of implementing economic and social rights … seems to be working just fine…” 142

The EU has also established a range of indicators of deprivation, poverty and exclusion, as well as a legal commitment to combating poverty. It has developed a “material deprivation indicator” based on indicators of poverty and social exclusion, as an EU wide threshold. The Council of Europe already provides a coherent and rights based system for assessing compliance with European social rights norms. It is here that the CJEU must look in its interpretations of the “decent existence” set out in the EUCFR – a structured, comprehensive concept, which now includes independent living rights for persons with disabilities.143

Macroeconomic measures can provide the general enjoyment of social rights, politically created and exercised through constitutionally empowered legislative measures. But there are arguments for retaining a right of individual action on social rights. Rights are fundamentally concerned with individuals and their plight. Courts must retain a supervisory role in relation to these rights, as they are independent of the executive and the legislature.144 Courts have been traditionally concerned with the plight of the individual. They have an expertise in redressing injustices and protecting victims, especially where counter-majoritarian measures are required against institutional violations of rights, or failures to legislate.145 Courts are public institutions and operate according to publicly accepted proclaimed principles, where societies and governments operate under the rule of law. Housing rights belong here too. But their realization must not be left just to courts alone. Politics matters too, since political decisions create legal rights and institutional social programmes.

142 Whelan, J. D. & Donnelly, J. ‘The Reality of Western Support for Economic, and Social Rights: A Reply to Susan, L. Kang,’ 31 Human Rights Quarterly (2009) 1030-1054, at 1051. 143 Some 19 EU States, and the EU itself, have ratified the UNCRPD. See Quinn, G. & Doyle, S. Getting a Life – Living Independently and Being Included in the Community - A Legal Study of the Current Use and Future Potential of the EU Structural Funds to Contribute to the Achievement of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities. (UNHCHR, Brussels, 2012). 144 Bilchitz, D. Poverty and Fundamental Rights, (OUP, 2007), p. 204. See also Palmer, E. Judicial Re view, Socio-economic Rights and the Human Rights Act (Oxford, Hart, 2009). 145 Courts may refuse to “take the heat” for a failure of political or legislative action in controversial hu man rights situations. See Keane C.J. in T.D. v Minister of Education and others [2001] 4 IR 259. See a lso Whyte, G. Social Inclusion and the Legal System, Public Interest Law in Ireland (Dublin, IPA, 200 2), pp. 340–63.

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