The Right to housing in law and society

Nico Moons is Doctor of Law at the University of Antwerp, Belgium

Introduction

1. International Acknowledgment of the Importance of Housing



2. Approach and Aims of the Book



3. The Belgian and Flemish Right to Housing as Illustration

PART I



An Effective Right to Housing: Beyond Legal-Technical Issues



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

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



A. History of the Concept



B. Human Dignity in a Human Rights Context



1) First Function: A Foundation for Human Rights



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



C. The Added Value and Pitfalls of Using Human Dignity



1) As an Equivalent of Decent or Adequate Housing



2) As an Open-Ended Norm for Courts and Other Institutions



a. A Driving Force for Other Rights



b. The Other Side of the Coin: A Race to the Bottom?



c. Subjective vs. Objective Dignity

4. Impact on Economic, Social and Cultural Rights and the Right to Housing



A. Obligations of Result or Conduct? According to Private or International Law?



B. A Recipe for Confusion

5. Towards Result-Oriented Obligations?



A. The Right to Housing as an Obligation of Result



B. A Result-Oriented Approach

6. Conclusion

5 Progressive Realization and Retrogressive Measures

1. Introduction



2. The Concept of Progressive Realization under Scrutiny: From a Housing Rights Perspective



A. Progressiveness as a Flexibility Device



B. Flexibility Does Not Equal Freedom of Obligations



1) Drittwirkung



2) Immediate Obligations



3) Minimum Core



C. Focus on Progressiveness

3. Retrogressive Measures and Financial Constraints



A. Origins in International Human Rights Law



B. Justification of Retrogressive Measures in International Human Rights Law



1) Presumption of Impermissibility



2) More Leeway for Budgetary Concerns?



3) Connection between Article 2(1) and 4 ICESCR



4) Budgetary Concerns: The Position of the European Committee of Social Rights



C. The Application in Belgian Case Law



1) A Broader Margin of Appreciation: No Presumption of Non-Retrogression



2) Practical Problems: Establishing Retrogression



3) A Different Application of the Principle: The Proportionality Test



D. Appropriateness of Retrogressive Measures

4. Conclusion

6 Towards Result-Oriented Obligations

1. International Monitoring Techniques



2. Enforceability of Progressive Realization



A. A Review Criterion



B. Reasonableness



1) Different Scopes of Reasonableness



2) Reasonableness as Appropriateness



a. A Preliminary Proposal



b. Possible Criticism and Imperfections

3. Combining Monitoring and Reasonableness



A. Overview of the Proposal



B. Requirements and Areas of Concern



1) The Monitoring Body



2) Ex-Ante and Ex-Post Analysis: Practical Difficulties



3) Enforceability of Progress

5. Conclusion



Conclusions



Index