lnternational Journal of

l-:aw in the EuEnviror-l r-nent

Can housing rights be apptied tohousing systems?

Padraic KennaSchool of Law, National University of lreland, Galway, lreland

t

modern

lnternationa[ Journal of Law in the Buitt Environment, Vol. z No. z, 2oto,@ Emerald Group Publishing Limited, q56-r45o

GUEST EDITORSAlice ChristudasonNational University of Singapore, SingaporePadraic KennaNational University of lreland, lreland

EDIÏORPaul GhynowethSalford Centre of Legal Research, Research lnstitutefor the Built and Human Environment,University of Salford, 4th Floor Maxwell Building,Greater Manchester M5 4WT, UKE-mail : P.Chynoweth@salford.ac. uk

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ASSISTANT PUBLISHERGemma BriggsE-mail : gbriggs@emeraldinsight.com

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Can housing rights be applied Housing rights

to modern housing systems?Padraic Kenna

School of Law, National Uniuersifi: of Irelnnd, Galutay, Irelnnd

AbstractPurpose - The purpose of this paper is to outiine and examine the growing corpus of housing righlsand assess their relelance and applicabilitl' to compiex contemporary housing systems across theworld.

Design/methodolog/approach - The paper sets out the principal inskumenis and commentarieson housing rights developed by the United Nations, regional and other bodies. It assssses theirrelevance in the context of contenrporary analysis of housing systems, organized and directed bynetworks of legal and other professionals within particuiar domains.

Findings - Housing rights insiruments are accepted b)'all States across the world at the level ofinternational law, national constitutions and laws. The findings suggest that there are significmt gapsin the international law conæption and fiamework of housing rights, and indeed, human rightsgenerally, which create major obstacles for the effective implementation of these rights. There is apreoccupation with one elernent of hor:sing s)'stems, that of subsidized or social housing. However,effective housing righs implonentation requires application at meso-, micro- and macro-levels ofmodern, dynamic housing s)'stems as a whole. Epistemic communities of professionals develop andshape housing law and policy within these domains. The housing rights paradigm must be furtherfushioned for effective translation into contemporary housing systems.

Research limitationdimplications - The development of housing rights precedents, both withininternational and national law, is leading to a wide and diffuse corpus of legislation and case law. Moreresearch is needed on specific e><amples of effective coupling between housing righs and elements ofhousing systems.

Originality/value - This paper offers housing polic,v makers and lawyers an avenue into theextensive jurisprudence and writings on housing rights, which will inevitably become part of thelexicon of housing law across the world. It aiso highlights the limitations of housing rightsimplementation, but offers some new perspectives on more effective application of these rights.

Keywords Housing legislatio4 Human rights (lau), International law

Paper type General review

1. IntroductionAcross the world, neoliberal and social democratic governments accept the market as

the primary producer and allocator of housing. Government intervention regulates theexcesses and externalities of that market, supplanting it in cases of market failure orunderdevelopment, subject to available resources. A complex array of legal, formal andinformal sanctions and incentives direct the housing system, and its subsystems,towards achieving socialiy desired outcomes, with varying degrees of success. At apolitical level, greater intervention and direct State supply of housing challenge theclassical free market approach, where the State merely guarantees property andcontract law rights. The only disagreement between these two dominant politicalperspectives is on what constitutes market failure, and just what govemments shoulddo about it (Marcuse and Keating, 20ffi). These market-based approaches can becontrasted with a right-to-housing position in which the "government's first obligation

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is to see that all are decentiy housed, and the for-profit market is managed andregulated in a way subservient to that goal" (Marcuse and Keating, 2006, p. 139). TheUnited Nations (JN) Special Rapporteur on adequate housing, Raquel Rolnik hasrecently derided the market approach to housing in the contex of the giobal financialcrisis created largely by unregulated housing markets:

The belief that markets will provide housing for all has Êailed- The current crisis is a starkreminder of this reality. A home is not a commodity - four walls and a roof. It is a place tolive in security, peace and dignity, and a right for every human being (Rolnih 2009).

Housing rights, enshrined in tIN, regional and national insfruments, constitutions, lawsand precedents are creating an increasing level ofnew standards and obiigations on allStates and other non-State actors (JN-Habitat IINHRP, 2ffi?4 b,2005, 2006; Kenna,2005). However, housing market systems are not monolithic entities, but contain manystructural, historical and dynamic interactions between law-makers, reguiators andregulations, the consiruction industry, financial institutions, developers, architects,engineers, planners and other professionals, consumers and others. Effective applicationof housing rights requires an understanding of the forces and structures shapinghousing systems within the built environment.

This paper seeks to present an introductory general analysis of housing rights asderived from international public law, together with a critique of their limitations. Itoutlines a widely accepted model of housing markets systems, and posiæ that housingrights require further development in order to effectively impact on housing systemacross the world.

2. What do we mean by housing rights?Housingrightsareforginganew discourseand jurisprudenceacross theworld (COHRE,

2000). At an international levei, public international human rights instruments have ledto a legal discourse based on human dignity and other universal values, çtrere Statesmutually agree to offer certain guarantees of minimum standards, in areas of public andprivate life, individual freedom and socioeconomic rights, such as housing (Craven,1995; Eide et aL, N01). The preambie of the Universal Declaration of Human Rights([JDIJR, 1948), adopted by all countries, states:

fW.fhereas recognition of the inherent digmty and of the equal and inalienable rights of allmembers of the human family is the foundation of freedonl justice and peace in the world.

Arlicle 1 states that:

[A]11 human beings are born free and equal in disnity and rights. They are endowed withreason and conscience and should act towards one another in a spirit of brotherhood (UDHR,

1948).

Housing rights within international human rights law have developed from the UNsystem, largely since 1945, establishing a general hegemony of human rights principlesthroughout the world. The rights are based on the inherent dignity possessed by everyhuman being, and provide a moral compass for the development of housing law andpolicy across the globe. Yet, this moral universality of human rights must be realizedthrough the particularities of action at national level, in order to be effective (Donnelly,

2003).

Housing rights are now viewed as an integral part of economic, social and culflral

.igtËî^ifr-iritt. tlN, B*opean,Inter-American and Africanhuman rights instruments'

fËÀ. inJua. tfr" UOfa1 (iôa8i Atti.l.25(1), the International Covenant on Economic'

S;;i;t ilh"al Rights iimOLlfti.r" 11, ùnvention on the Rights of the Child (i989)

Articies 16.1 and 27.s, convention on the Elimination of All Forms of Discrimination

ôilù;;;; (fgZg) Articie l+.2. ^nathe

Convention on the Rights of Persons with

ôÏ*lifiti". (200fi)t11, u. *.iiut many International Labour Organization Conventions

utra R".o*À.ndalions (COI{RE, 2000; Kenna, 2005)'

The UN monitoring;;;;;ti"t housing rights, the Committee ort-Economic, Social

unJôurt*uiRights (tlNôEsônl, issued guidànce on the content of UN-based housing

;ilÀ;;lwi. ô.r"àf C";;";i 4 sets out the essential elements of housing rights as

."îùi.irg t"grt ,e.,r.ity of terure, availability of services, . materials and

ilf"Jrb1dne, îffordabffi, nauitauitlty, accessibility, suitable location and cultural

adequacy (IINICESCR, 1991a).

The tlN rnorritor-rrrglgency for housing rights, the 1NCESCR, issued guidance on

the content of UN-basfi;;.itg rights-in 1991. General Comment 4 sets out the

essential eiements of housing rights ai comprising legal secwity of terure, availability

;i;;r"ù, materiats anfiniastr-uctur., ufioiaufiiity, habitability, accessibility,

Housing rights

105

suitable location and cultural adequacy'

Ratification involves an undedaking to ensure appropriate policies and lalls rn'hich

*Jàôi" ttr. minimum Ài. ourigutio"i without discrimination, achieving progressive

iàfi-tio" of righS, as well as à requirement to recognize, respect, protect' promote

àrJ t"fnff the required obligations (IINCESCR, i991b)'

International ttousgtg-inËtrumenù tt"tt.lut" to obligations of immediate result -

",A;it;;.;t to underËke immediaæ action in relation to ensuring a minimum core

"Ufij"tt"r i" t"""s otttre rign[ corye1ned, uithout discrimination (Chapman and Russell'

iOOâl fit;. minimum *."îlig"tion is a minimum threshold approach, below which no

person should have to endure."This minimum core obligation corresponds to a level of

disn-ibutive justice ur.;G rh" evennÊs of the disribution of sociaily guaranteed

;;*d l#ls of certain goJds and benefits among individual croy?: rvithin a ctuntr!'

ist"cry, 1gg0). In t"rln.îr torrsing rights, the minimum core obligations involve a

guarantee that *".vorr. "rrjovt "

agrtt t" "a.quate

shelter and a minimum level of housing

3;;; ;tthout âiscriÂ-ination."lna."a, t-his concept has been applied to provide

;;;*-ir*.y and justiâJmat ,o housrng and other socioeconomic rights, providils

;il;bs;r ourùationî *t i.t ut" easif_ understood by courrs d *sl:y_l^"i"t::i?;;;t00[ Wf,iË tn. *inimum standard or the minimum core obligation approach rs

weli established and ;ô;tby non tttg profassionals in such areas as frtness for

habitations standards, â;.-;;t standards, building regulations and plaruring control,

if.r. r*onà "f"."nt

of ihe .ishts approach - the concçt of progressive realization, is more

problematic.' Progressive realization involves a duty on States to:

[...]takesteps[...]tothemaximumofitsavailableresources'withaviewtoachieving1,."'s"*rf*fv tfr; iitffr*iiÀon of the rights recognized in the present Covenant bv all

i;;?;Ë;il;, ;;ffiËft;r-ir rr* "doption

of legrstarive measures (UNGA, 1e66).

[1] Articles 2,5.3.,9.1., 19,22.7' and 28'

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Progressive realiration of rights involves a cumulative increase in housing rights overtime through poiicies, public spending, iegislation, regulation and other means, with noregression of these rights. This compares with increasing normative standards, widelyinterpreted within housing systems as arising from increased standards andcumulative development, but which can also be incorporated into political andconsumerist norms (Giddens, 1990; Deutch, 1995).

Indeed, contemporary writers @ourdieu, 1984; Hudson, zCf/') have shifted thenotion of housing demand from meeting the basic needs outlined by Maslow (1943), tomore complex motivationai forces, driving housing needs or demands in contemporarysocieties, based on "taste" and lifestyle choices. "Taste" is determined by habitus, theinterconnection between levels of economic and cultural capital, and the socialconditioning associated with particular combinations of these (Bourdieu, 1984).

In Europe, the Council of Europe has developed a range of normative housing rightsstandards. These relate to social and medical assistance for those \ ithout adequateresources, establish housing obligations in relation to physically and mentally disabledpersons, migrant workers, children and young persons, and rights to social, legal andeconomic protection for families, those who are poor and socially excluded, homelesspeople, and those unable to afford accommodation. It also includes a State obligation toprovide family housing[2]. In 2009, the Council of Europe Commissioner for HumanRights further clarified the actual extent of State obligations arising from its housingrights instruments (Hammarberg, 2009).

The European Court of Human Rights is developinghousingrights in an indirectandobliqueway through its Articles on theprevention of inhumanand degrading treatment,protection for home, family life and correspondence, fair procedures andnon-discriminationl3]. The fundamental rights contained in the Treatiesf4] andDirectives of the European Union are now addressing housing rights and discriminationon grounds of migrant workers status[5], race or ethnicitl'[6] or gendedfl.

The Organization of American States, Charter of the Organization of AmericanStates (1948) and the American Declaration on the Rights and Duties of Man (1948)

both recognized housing rightsl8]. The Protocol to the African Charter on Human andPeoples' Rights on the Rights of Women in Alrica of the African Lïnion reaffirmedhousing rights. The IJN Ntlillenium Development Goals include the aim of achieving

Articies 13, 15,16, 17,19,23,30 and 31.

Sæ Botta v. Itab $9J8) 26 EHRR 241; Manati v. nab Q9É!) 28 EHRR CD 175; Lopez-Ostra v.Sfain, (799ù) 14 EHRR 3L9; Geurra v.Itab QV98) EHRR 357; Fadeyeua v. Russin QWn 45EHRR 10; Moreno-Gomezv. Sfain (2005)41EHRR 40.Treaty Establishing a Constitution for Europe, October n,2W4, OJ. (C310) 41.Council Regulation 16 12168, Articie 9, 1968 OJ. &25n 2 (EEC), amended by CouncilRegulation %3/.1921992 OJ. &245)f, See Case 2491ffi, Comrnissianv. Germanj,1989 E.C.R.1263; Case 63186, Cornmissinn v. Itdy,1988 E.C.R. æ.See Council Drective 20W143,2000 OJ. &\80) 22.See Council Directive 20Mlll3,2004 OJ. L373) 37,38 (EC).

Article 31; See also The Additional Protocol to the American Convention on Human Rights inthe Area of Fronomic, Social and Cultural Rights (1988).

l2lt3l

t4ltsl

t6ll7lt8l

significant improvement in the lives of at least 100 million sium dwellers by the 2020

(Target 11, LIN Millennium Deveiopment Goal No. 7)'' At national level, housing rights are widely enshrined in constitutions, legislation

and established case law. Approximately, 40 percent of the world's constitutions refer

to housing or housing rights including:

Belgium (1994) Articte 23(3).'Everyone has the right to enjoy a life in conformity with human

atgnity. Towards this end, the iaw, the decree or rules established under article 134

gu-arantee, taking into account the corresponding obligations, economic, social and cultural

lghts of which they determine the conditions for their implementation. These rights include,

in partiarlar, the right to adequate housing.

Russian Fedzration (1993) Artirte 40(1):hchperson has the right to housing. No one may be

arbitrarily deprived of housing.

South Afrita (1997) Section 26(1): Everyone has the right to have access to adequate

housing. Section 26(2):Thestate must take reasonable legisiative and other measures, within

its available resources, to achieve the progressive realization of this right.

Section 26(3): No one may be evicted from their home, or have their home demolished, without

an order of court made after considering all the relevant circumstances. No legislation may

permit arbitrary evictions. Section 28(1): Every child has the right - [. . .] (c) to basic nutrition,

shelter, basic health care sen'ices and social ser-vices.

Many countries have introduced legislation granting specifically enforceable housing

rights. For example, the Housing (Scotland) Act 1987 (as amended) provides a right to

accommodation ior homeless persons, including a right to temporary accommodation

for ali homeiess persons, and a right to long-term accommodation for broadly defrned

categories encompassing the majority of homeless applicants. This right is enforceable

in tÈe civil couris which may order in appropriate cases, that accommodation be

provided to homeless persons. In France, an enforceable right to housing has also been

èstablished through the Droit au logement opposablz Act 2007, which provides for a

two-tier remedial mechanism with regional mediation committees, and the possibility

to take a case before administrative courts. The use of planning law to achieve

integration of sociaVaffordable and private housing, control of land use and quality of

infràsfucture and amenities is now becoming widely recognized as a somewhat

lateral, but practical, means ol realiÀng housing rights (Ponce-Sole, 2006).

Courts across the world have deveioped housing rights in areas such as securily of

tenure, respect for home, non-discrimination, decent physical standards and fair

proceduresln evictions (Bryson, 2006). A legacy of judicial activism has led to a corpus

àf lurisprudence in many countries, which has established housing rights, even within

common law principles (Harris, 2004).

Al1 this suggests that there now exists a growing matrix of housing rights across

the world, drawing on a variely of precedents, legislation, constitutions, mtifications of

international instruments and measures from other law applying indirectly to housing

rights. The internationaliy accepted UN minimum core obligations and progressive

,à1i^tion obligations on ratifying States, as well as the obligations to recognize, to

respect, to protect and to fulf,l these obiigations are influencing new law making

(Alston and Quinn, 1987).

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3. Housing systems3.1 El"ements of housing systemsHousing systems today are predomirnntly organized around markets, with varying levelsof direct State provision or subsidy in socially or politically important areas. Thesecontemporary housing markets encompass at least five essential elements, subsystems orregimes reiating to properLv rights and registratiorq housing firnncg residentialinfrastructure, regulation and housing subsidies or public housing (Angel, 2000).

The establishment of individual and enforceable propert-l- rights in land andhousing are seen as the cornerstone of this enabling housing market regime. Thedevelopment of land registration systems has been globally promoted for housingmarkets, mortgage lending and development generally @e Soto, 2000, World Bank,1993, 1996, 1997). Housing is by far the most widely distributed form of private wealth,and investment in housing requires laws facilitating certainty, exclusivity,transferability and constitutional protection. As stated by Angel (2000, p. 9S):

A functional and effective properfy rights regime must evolve a set of transparent,predictable, non-discriminatory and stable rules that preserve the righs of individuals to use,invest, maintain, rent, mortgage and sell their land and housing properties n-ithout hindranceand with the full protection against arbitrary action by the authorities.

Complex legal ownership arrangements involving family law slstems, with rules onownership and division of property upon marriage, separation, divorce, death andco-habitation are required. Innovative lega1 mechanisms have also been developed todeal with unregistered land, new forms of title, aparlment management and ownership,transfer and conveyancing procedures, disputes and the regulation of actors involvedin housing markets.

The housing finance regime requires the creatjon and maintenance of an effective,enforceable lending and regulatory regime for housing finanæ, as well as thedevelopment of housing finance institutions and sustainable mortgage markets.

Technological developments in housing finance have been dramatic. Electronic andInternet systems have revolutionized the concentration and outsourcing of mortgagebrokering and seriricing, creating new and more sophisticated sen ices and products,credit scoring and automated underwriting, as weli as standardization of documentationand legal structures (BIS, 2006). Yet, whiie most of the world's population now lives incountries with a market-based mortgage finance s]'stem with generally affordableterms, and market-based housing finance is now ar,ailable to most middle-income peoplein the world, it is still not available in most countries, or for the poorest people @uckleyand Kalarickal, 2006).

The third requirement for the enabling market approach is an effective residentialinfrastructure regime. This requires legislation and reguiation in relation to zoning,planning, public health, control of nuisance and sanitation meâsures, and planningcontrols on urban land development and supply. Detailed legislation and case iaw havedeveloped in relation to roads and walkways, water, sewage, drainage, transport,public {acilities and other services, which contribute to housing quality (Angel, 2000).

The fourth and most important eiement for industrialized countries is the regulatoryregime for qualiry in housing systems. Building control measures exercised by theState are critical elements in the deveiopment of housing markets. Indeed, thesehousing markets actually require a legal and regulatory quality framework that onlygovernments can provide (World Bank, 1991).

Housing subsidies are a central element of modern housing market Stateenabiement policies (Angel, 2000; Buckley and Kalarickal, 2006). Of course, thepresence or absence of housing subsidies (and tax incentives) cannot be understoodoutside the broader framework of overall fiscal policy. The largesse of the State inenhancing land values through planning and zoning decisions, and the contemporary"capitaiization" or subsidies to banks globally, represent enorrnous subsidies to thehousing market system. Direct social housing provision by the State may be necessaryto provide a buttress to the market, and in recent times has become a State vehicle forresolving overproduction of housing markets. Thus, social housing can be seen as bothan integral part of a market support s-vstem and a signiflcant element of politicallargesse. However, contemporary market-based approaches to housing subsidies andsocial housing involve a retreat from public housing production, towards privatizationof such stock and abolition of subsidies (Cammack, 2002). A contemporarydevelopment in this area is the promotion of "unitary" rental systems, involving"Third-Secto/' rented housing with State guarantees in relation to the private financeinvested and lesser levels of subsidies CIùbel et al.,20M).

3.2 Macro-, meso- and micro-lpuels of housing systemsHousing systems, like all systems, operate at three levels - the macro (broadly thenational, regional and international context within which housing systems interactwith other systems, the meso (including the housing systems, its subsystems andinstitutional contexts) and the micro (the level of indir.idual aspirations, interactionsand micro-political struggles) (Dopfer et aJ.,2004).

Understanding housing systems at a macrolevel requires a focus on national andinternational economic, social and political measures, with the role of the contemporaryState confined to that of governance. Simple hierarchicai concepts of command andcontrol, involving the establishment and implementation of laws and policies havegiven way to the invoivement of a broader range of "actors" in the implementationprocess (Hill and Hupe, 2009; World Bank, 1994). The World Bank describes the idea ofgovernance as the:

[. . .] process by which authority is exercised in the management of a country's economic andsocial resources for development, and the capacity of governments to design, formulate andimplement policies and discharge functions (1994, p. xiv).

Governance "describes the hybridity of legal interferences within a society" (Mollers,2006, p. 316). It accepts a fusion of pubiic and private institutions, and brings anapproach to public institutions primarily oriented towards efficiency and output inachieving goals.

Ata meso- or institutional level, regulatorynorms thatestablishminimum standardsand equality of access to housing are widespread, although more often based onhistorical public health legislation than international human rights (Sunstein, 1990).There are detailed legal regulations and regulatory systems on land use, housingoccupancy and maintenance, building standards, housing costs, eviction procedures,facilities and equipment, and almost all have legally enforceable sanctions for violations,and compensation for breaches. This institutionalized regulation machinery seeks toprotect, preserve and promote the physical and mental health and social well-being ofpeople, control nuisances, prevent and control communicable diseases and regulate

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privately and publicly owned dwellings in order to maintain adequate sanitation andpubiic health (Angel, 2000, p. 155). Indeed, in some circumstances, ir can go so far asdelimit and deny property rights, such as granting extended rights of occupancy fortenants, which override the iegal o$4:]ers'povrcr to sell. There are regulatory msrsuresand mechanisms across the contemporar-r,'world r.vhich act to achieve socially desirableoutcomes, and in many cases override civil and properly rights McCrudden, 2002).

At micro- or individual level, the concept of home as a focus for housing consumptionand as an asset, where individuals and families develop their o*in housing "pathways",based on a mix of contemporary opportunities and previous decisions, is becoming thepoiicy norm (Clapham, 2005). However, a deeper treafinent of 'home" highiights theinterplay between the physical enr,'ironment and the human dimension of living andhaving relationships with other people Pox,2002,2007).

Home as a ph1'sical strucfure offers material shelteq home as territory offers security andconfoi, a lncus in space, perrnanence, securiS,- and privacy; home as a cente for self-identityoffers a reflection of one's ideas and ralues and acts as an indicator of personal stafus; andhome as a social and culfural unit acts as the bcus for relationships with famiiy and friends,and as a centre ofactivities (Fox, 2002, p. 590).

Thus, understanding housing systems, requires among other things, an examination ofthe disparate elements at macro-, meso- and micro-levels, as well as the dynamicsbefween these.

4. Applying housing rights4.1 Limitations on human rights generallyEffective implementation of housing rights through the public international law"transmission belt" approach raises issues of dualism/monism in national legal systems,the specificity, claritv and contextual definition of rights terminologl', as s'ell as therelationship between human rights iaw and the systems it seeks to address (Teubner,1993; Luhmann, 2004). some claim that international law does not even require anysignificant changes in State behaviour (Goldsmith and Posner. 2005), or that humanrights cannot be incorporated into liberal economic systems at all (O' Conneil, 2007).McCrudden (2008)highlights the comparative variations in the notion of human dignity,which lies at the heart of human rights principles. While at UN level there has beenextensive analysis of ffansposing legally defined standards for housing rights on tonational housing systems and standards through indicators and benchmarks (UnitedNations (LND, 2000), yet many LrN monitoring processes can amount to reports, merelyillustrating creative compliance by recalcitrant States (Bayefsky, 2001).

Housing rights, like other socioeconomic rights derived from international law, arenot easily applicable to everyday housing system rules and frameworks. A detailedunderstanding of the implementation of law and policy is critical (Hill and Hupe, 2009).Jheeian (2007) has highlighted the imprecision and vagueness, aspirational nature andultimately reliance on a "reasonableness" curial test, which acts a delimitation on theeffectiveness of universal minimum core obligations. Indeed, some eminentcontemporary writers are positing that minimum core obligations may be fulfilledthrough general government programmes, and not necessariiy by curial enforcementof individual entitlements (Sachs, 2009, p. 182). At the ievel of progressive realization ofrights, Robertson (1994) has pointed out that words such as "maximum" in relation tothe level of resources to be devoted to realizing rights, form the sword of human rights

T

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rhetoric, while words like "availabie" facilitate "wrigglg room" for the State' Hunt

iiiixl-tt". riùttlighted tr" u*i"ur. and elusive nature of such terms as "progressive

;;;î#i;;'Ërà i*ug-"m ol itr"it available resources". These imply that some State

"Ërùîu"*'.ortd uu.v î"o ti*"t "fihese yariable elements of States parties"

;iiil;;; ,oa"r rCBbCn àntribute-to the sense of uncertaintv u'hich remain a

i;ï.-;f international economic, social and cultural riglitsll (IINHCIIR' 1998)'

Other limitatio"r o" tir"-Ëguiiiberalist "transmission belt" approach are highlighted

i, tù;i-;li.À, -ti*il"s;i*t"4"* and feminist anaiyses, as-w911 as the mvopic

treatnent of formal *;.-rb.t";tive equality (I{ennedl', 2002)' indeed, legal liberal

models of individually enfotieabie rights may aci to displace, res,tructqr-e or reprioritize

innovative or radical pi"g*-*àtiJapproaches to State provision. Many acclaimed

ii;;d;;gh1t à* inuot". only t5. o.ioritization of access to new homes, or more

;;rdil;;à"*tting" ptoc"d*"., ,tttimately leading to little. or no increase or

#;t;;";;"ai;;;".ïs perietgl. Housing rights cases, corralled snthin the legal

iitËiun.i àir.o*.", oft"riolJy àiffeientiate s6cioeconomic rights from civil and politicalj!;Ë;;ilrËs.l;;"-."tr to juxtaposrng the role of politicians and courts in

allocating resources ur;"Ë6;. Altfr"iql i'alulbte guidelines hu"." b"9n developed to

deal with violations oi-îi"*utionufly d.fi.t.d socioeconomic rights (Limburq

pffi.ipi.t fgæ C""tr.t ffi;;RtCht. ,Iggn, there is-no effective enforcement of

Ë;iii* i";Ë;ri"ù;hÀ;;l"dott it ini"*utional level, despite some very valuable

;;;i;Ë;rd g"raii"Ë i" thi, **. Ironicaly, despite the development of the Hurnan

'n;'sh;;Bàia-,{fproorn-ç<ot*tutttUo"o"a1$Martio2007)andNationnlActionPlnns

dfrôHclfi, ZOOZ),tt.ù"guugeof humanrights can easilybeappropriatedwithinnew

i,îrïii. t*r"!"*""tr aiff"*Ë. Indeed, human rights language is now regularly used

îilfrir "V.t"*.

of .o"""ttutio", participation and étrategies for service delivery, often

;t rc k;Ugitirnt "

u"a-futt.". existing public policies and processes (Kenna, 2008)'

Housing rights

111

II

II

4.2 Effectiue application ofhnusing rightl .

Ëff;iil *ti":*entatiori "f tt"rinË rights:equires a deconstruction of housing

ffi";r., which will uù *ia.f' {mêi Staies, both in terms of market role,

àLt.fàpà."t una .o-pt iit', as'well as the extent of legally defined institutional'

;g"ùi"ry and consumer nor,,'.. At a macro-level, the model of supra national

;;î;;;.., ;";tuuting itre o"i.o*. of institutions, laws and other measures of States

ilà;;"i;"*ults canÇappiàpri"t"a to the monitonns an{_dgygtgqllent of housing

;il;:'ôiiiui.", ttr. tl1g *oiritoring sysle1ns, especiallythe.IINCPSCR' examines and

.î"i""té= the broade. outcomes -of'rights implementation, alongside legislative

;;;;i""., ilits regular"màril"Àg of s"tatestlOl. The Errolean committee of Social

ffËrri.îi.îi"iu,il,risa " rr,ir e*"pean-Committee on Social Rights (2007)'

lgl Gouernment of south Afrira and otlærs v. Grootboom and others, ccT11/00 2001 (1) sA 46

(cc), 4 october ,00q-tdt! (11) B{irpqo, QC); Iaftttn and-Another_u.^van Rooven and

Anothzr, Constituttoniiô;;'"? South AJrica, iOOa_Cu.. No, CÇflalp; Port Elizabeth'uïàA:"ity i variius oæupiers 2Cfr5 (1) SA 217 (CC), Casg-ryq^CcT 53/03'

[10] For detailed reports ;;;;ili""tC oi t"npiem"ntation of the ICESCR bv the UNCLSCR, see

web site: ***Z.oir.ftr"rgi.rgft.ttm"aiàs/cescr/. The UNCESCR has now developed an

Optional Protocoi ;'p.i;ofii;, So.iat ana Cultural Rights which aliows individual

.":-îi^irt "i"iofutio".

J.uttt tigf-tt ln iuaing housrng rights to be made directiy to the

Corr*itt.. See: www2.ohchr'or g/english/issuesiescr/intro'hûa

IJLBE29

t12

in relation to violations of the European Social Charter, further demonstrates thebenefits of this holistic approach, while also benchmarking the 1aws, policies,regulations, codes, budgets and other measures appllnng to all aspects of nationalhousing systems.

There is a powerful interdependency between rights and regulation $4organ, 2007).Clapham (2006a, b) points out that globalization involves the reorientation of nationalgovernments in a climate where regulation and control are increasingly difÂcult.However, the new international regulation and governance approaches to globalfinance offer nerv opportunities. Indeed, the UN Special Rapporteur on AdequateHousing has proposed that housing rights be integrated at the international level in theregulation of financial markets (Rolnik, 2009):

The Special Rapporteur believes that the current crisis represents also an opporhrnity forreflection and to consider how to improve housing systems, policies and progranmes so as toensure adequate housing for all (para. 75).

Statas should ensure appropriate regulation of internatiornl fuancial activities in order toarrcid future financial crises and their subsequent effect on human rights and adequatehousing (para. 89).

Indeed, the level of globalization and privatization of elements of housing systems,may actually require that obligations are placed on non-State actors to ensure theeffective implementation and protection of such rights (Claphar4 2006a, b).

The integration of international housing rights nonns and jurisprudence intonational housing regulatory systems represents the next step in the reaiization of theserights. For instance, all draft legislation on housing systems can be housing rightsproofed. House planning and building regulatory agencies, such as local authority andinstitutional housing finance regulators, can incorporate housing rights objectives.Equally, all development plans and zoning approvals could be required to demonstratehow they address housing rights criteria. Regulatory agencies could refer violations, asset out in the Limburg Principles (1986) and Centre of Human Rights (199? to thecourts to be adjudicated. Appropriate sanctions can be enforced for violations ofhousing rights across all elements of housing systems.

One of the key issues in ensuring the effective enjoyment of housing rights isjusticiability. Conlrary to what is sometimes suggested, neither the far-reaching natureof housing rights obligations, or their character as social or economic rights, present amajor obstacle to conferring justiciable housing rights on persons within national legalsystems. Courts have regularly enforced housing rights derived from case law,legislation and constitutional provisions. Indeed, a significant overlap exists bet'*'eeninternational housing rights and rights conferred by national private and publicconstitutionai, legislative and case 1aw (COHRE, 2000). However, there are many areaswhere national laws do not provide the equivaient protection to that set out withininternational legal instruments. More research is required in this area.

King (2000) suggests that such rights do not pror"ide a justification for socialhousing provision in themselves, but only exist if individual duties are institutionalizedinto a collective representative set of actions. Equally, there can be a tendency to shunthe struchres and dynamics of the housing systems, in favour of more complexdefinitions and descriptions of failures of housing rights implementation. But as Angelpointed out:

i,!

tliI"

T

[...] there is little merit in a housing poliry that solely focuses on the poor, hoping againsthope that "the market" will take care of the rest, without paying any attention to whether themarket is functioning properly. When the market is not functioning properly, the poor aresqueezed as well (2000, p.7Q.

Housing rights must be directed to the whole of housing systems, rather than merelysocial housing entitlements. Of course, the basic right to shelter is a minimum corerequirement of the implementation of housing rights. But housing rights must involvemore than this minimalist proposition.

4.3 Epistemic communiti.esOne of the major issues relating to a mainstreaming or integrating of human rights intothe institutions which comprise housing systems is their acceptance and use by thosenetworks of legal and other professionais involved in establishing and maintainingthese systems. These may be described as "epistemic communities" or networks ofprofessionals with recognized expertise and competence in a parlicular domain, and anauthoritative claim to policy-relevant knowledge within that domain or issue-area(Haas, 1992). Haas (1992, p. 3) states that while the professionals may be from a varietyof disciplines and backgrounds, they must have:

' a shared set of normative and principied beliefs, which provide a value-based rationale forthe sociai action of community members;

' shared causal beliefs, which are derived from their analysis of practices leading orcontributing to a central set of problems in their domain and which then serve as the basisfor elucidating the multiple linkages between possible policy action and desired outcomes;

' shared notions of validity - that is, intersubjective, internally defined criteria forweighing and validating knowledge in the domain of their expertise; and

' a common poliry enterprise - that is, a set of common practices associated with a set ofproblems to which their professional competence is directed, presumably out of theconviction that human weLfare will be enhanced as a consequence.

Housing systems contain many such epistemic communities in the professional areasof law, planning, management, deveiopment, finance, construction, design and otherareas.

Mainstreaming human and housing rights involves the reorganization, improvemen!development and evaluation of policy processes so that a human rights perspective isincorporated in all policies at all levels and all stages (McCrudden, 2004). Thus, theeffective implementation of housing rights requires their adoption by the variousepistemic communities within housing systems across the world. Yet, aside from thevagueness and lack of specifig measurzble, achievable and time lirnited nature of much ofpubiic internatiornl human rights rhetoric, there are many chailenges in assigning tohousing professionals, the role of housing rights advocates. Impact assessmenb and othermonitoring systems suffer from creative compliance problems (McCrudden, 2004).Significant political issues arise when human rights are presented as "trump cards" byrights holders, in the context of the varied and multiple competing bureaucratic andeconomic interests represented by professionais in housing systems. Relying on litigationcan result in lengthy and costly disputes, and while housing systems, like other systems,must reproduce themselves to survive and are subject to law, they must manage alsodissent for their survival (Luhman, 2ffi4. p.15). Of course, housing rights may actuaily

Housing rights

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IJLBE,,

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valonze hitherto overlooked interests in housing systems, such as those exciuded frommarkets, immigrants and thosewithout entitlements (Flammarberg,2009). Thismay forceStates to reorder resources towards meeting their needs.Integrating education on housingrights into professional training may be useful here.

5. ConclusionCowan (1999, p. 2) describes a situation where "academic housing lawyers have rathermarginalized themselves by strict adherence to doctrirnl approaches which cannot'speak' to housing experience". So too with housing rights advocates and housingsystems. Today we live in a world described 20 years ago by Castells (1989), where thecombination of new information technologies and socioeconomic restructuring isreshaping cities and regions, ushering in new urban forms, with deprivation and poorhousing locations aiso distinguished by under-investment in such technology andservices. A new constellation of globally networked cities, sometimes referred to as the"urban archipelago", is emerging, which have more in common with other cities thanwith their hinterlands, but which are also creating a "planet of slums" (Davis, 2006). Inthis context, the traditional aspiration nature of housing rights within publicinternationai law needs to sharpened, in order to respond effectively to compiex housingsystems, operating at many levels and within increasingly contested sets of housing andpolitical priorities. Professionals u'ithin housing systems could also find wa-vs toincorporate housing rights into their iaws, policies, processes and decisions.

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Further reading

Chapman,A'(1996),..A.violationsapproach'for.monitoringtheinternationalcovenanton-'*- ooito.i| t*i"f and cuttutal rights", 1/R8' Vol' 18' pp' 23-66'

LIN comminee on Economic, Social and cultural Rights (]o-e+),_|s1a1e obligations, indicators,

benchmarks ""d #;ô;;;;il;;, n.p"o.t oi tt.t. tgtit Session, para' 4 LTN Doc'

Elc.\2179941r1.

LINCHS (2002), "Housing rights legislation: .review of international and national leeal

instruments,,, uuula-ut -ii,-ir*..i.unhabitat.org/programmesaousingrights/

IlNDoc.ElENa2m0l4T(2000),ReportofSecretaryGenerzlonindicatorsandbenchmarks.

Woods,J.M.andLewis,H.(2005),HutnanRightsandtheGloba]Marketpln'ce:Economil:,Socia]" *"iiràèùlt"ral DimeÀion,Transnational' New York' NY'

Corresponding authorÈuJài.Ï"nnu ân be contacted at Padraic'kenna@nuigalway'ie

Housing rights

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All FiguEs (charts, diagEms and tine dEwings) and ptaies (photographic images)should be submitted in bolh electronic tom and hard copy originats. Figures shoutd be ofclear quality, in black and white and numbered @nsecutively with arabic numeÉls.Graphics may be supplied in @lour to fâcilitate lheir appeaEnce in ælour on the onlinedatabas-

Figu.es created in MS Word, MS Powerpoint, MS Excel, lllustrator and Freehândshould be sved in their nâiive fomats.

-Elecùonic ligures created in other appli!tions should be copied frcm the o.igination

sottware and pasied into a blank MS Word doqment or sved and imported inb an MSWord document by choosing 'lnsert'trom the menu bar, "picture" from the drcp{ownmenu and selecling'From File ..." to ælect the gEphic to be imported.

_ For figures which cannoi be supplied in MS Word, acceptable standard imagetomts are: .pdf, .ai, .wnf and .eps. llyou are unable to supply graphics in theæ fomatsthen pleaæ ensuÉ ihey are .tif, jpeg, or .bmp at a resolutjon of at least 300dpi and âileast 'l0m wide.

To p.epare screenshots, simultaneously press the An' and "print scræn' keys onlfE keyb@rd, open a blank Microsoff Word docuænt and simultaneously press "Ctrl"and 1f io paste Èle image. (Capture all the contents/windows on the @mputer scræn topaste into MS Word, by simultaneously pressing'Ctrl" and "prini $reen".)

. For photog.aphic images (ptates) good quatity originat photographs shoutd be

submitted. lf supplied electronicaly they shoutd be saved âs .tif;r .jpeg files at aresolulion of at least 300dpi and at teast 1ocm wide. Digitat!mera æning; sh;uH be ætat the highest æslution/qualiiy possibte.

lô the text of the paper the pretered posilion of all tables, figures and Dlates shouldbe indi!te-d by typing on a sepaEte tine the words -Take in Feure (No.|" or "Take inPlate (No.)'. Tables should be typed and included as part of the m;nuæript. they strouldnot be submitted as graphic elerents. Supply suæincl and dear !ptions for ail tables,figures and plates. Ensure that tables and figures are compleie with necessarysuperscripts shown, both next to the relevant items and with the correspondingexplanations or levels ot significanæ shown as foohotes in the tables ând fioures.

References to other publi@tions must be in Haryard sMe and !refully-checked forcompleteness, accu!cy and consistency_ This is very important in ân electronicenvircnrent b@use it enables your @adeE to exploit thé Reierenæ Linking facility onthe databaæ and link back to the works you have cited thrcugh CrcsRef. Vou shouldinclude all author names and initiats and give anyjoumal liue iÀtuil-_. You should cite publi@tions in the text as tollows: using lhe aulhoas name, e.g.q!9Ts, 2006); citing bolh names if there are two authore,!.g. (Adams and BrowÀ,2006), or (Adams et al, 2006) when there aæ three or more auihore. At the end of thepaper a refercnæ list in alphabetiæl order should be supplied:. Forô@*s: sumare, initiats (year), tiie of bæk, pubtisher, ptaæ ol pubti@tion.

Harcw, R. (2005), No P/ace to H,ire. Simon & Scùuster, New york. Ny.. Fot b@k chapteÆ: sumame, inilials (year), .chapter tiûe', editot s sumame, initials

(Ed.), f,f,/e ofôook, pubtisher, ptaæ of pubti!tion, pages.Calabrese, !:A:l20O5l 'The eady pathways: ttréory to peaice _ a æntinuum,, inStankosky, M. l5d.l, Creating the Discipliæ of KnMle.jge Managêrent, Êtælier,New York, NY, pp. 1t20.

. Forjoumals:sumame, initials(year),tit,eof aftide",joumatnaæ,volume, numtEr,pages.Capizi, M.T. and Ferguson, R. (2005) "Loyatty bends for the twenty-tiBt æntury",Jouml of Consumer Mad<eting, Vol 22 No. 2, pg.7Z{,O.

. For puilished conference p@ceedings. sumame, inilials (year of publi!iion), ti0e ofpapei, in surnare, initiats (Ed.), Tiile of pubtished prcæeding whrch may inctudeplaæ and date(s) hetd, publisher, ptaæ ol pubti@tion. page nu;beF.Jakkilinki, R., ceorgievski, M. and Sharda, N. (2007),;Connecting destinations withan ontology-based e-tourism planner,, lnforûation and CommunicationTechnologies in Tourism 2007 proceedings of the tntomational Conference inLjubljana, Slovenia, 2007, Sp.ingeÊVedag, Vienna, pp. i2_32.

. For unpublished @nfercnce prcwding$ sumame, initials (year), "tifle of paper,,paper presented at name ot @nterence, plaæ of conterenæ, Oaie of æntérenæ,available at: URL if fræty avaitabte on the intemet (aæessed date),Aumueller, D. (2005),'Semantic authoring and retrievat witÉin a wiki", paperpresented at the Eurcpean Semantrc Web Confeænce (ESWC), HeÉktion, brète.29 May-l June, avaitabte at: httpJ/dbs.uniteipzig.deffite/aumteiler0swiksar.pdt(acæssed 20 February 2007).

. Fot wd<ing pape6: sumare, initiats (year), "ùile of article', working paper lnumberit availablel, institution or organisation, plaæ of organisation, date.Mozier, P. (2003), 'How pubtished a!demic reséarch !n inlom Doticy decisions:the case of mandatory rotation of audil appointments', working paler, LeedsUnùeFity Business Sch@t, UniveGity of Leeds, Lêeds. 28 Marci.

. For encyclopaedia enties (with rc authot ot editor): liue of encyclopaeda (yeaù,'lide ot ent4f, volume, edition, tiile of encydopedia, pubtisher. pÉæ ol pubtièatio;,pages.Encyclopaedia Bdtannica ('t926),.psycùology of attu.ê @ntact', Vot. 1, 13th ed.,Encyclopaedia Britanniæ, London and New Vork, Ny, pp. 76F71.(For authored entriês please refer to book chapter guideiines above.)

. For newspapet afticles (aufhoredr: sumame, initials (year), "article tiile", newspaper,date, pages-Smith, A. (2008), "Money tor old Dpe', Daly News, 21 January, pp. 1, g.

. Fot rewspaper atticles (rcn-authored): newspapel (year), "a.licle tide', date, pages.Daily Nerc (2008), 'Smail change", 2 February, p. 7.

. For electrcnic surces: if âvailable online the full URL should be supplied at the endof the reterenæ, as wellas a date when the re$uræ was a@ssed.'Castle, B. (2005), 'lntrcduction to web seruices for remote porflets', available at:M.128-ibm.æry'developeNorks/lib6ry/m-mrp (acæsæd .12 November 2OO7).Standalone URLS, i,e- without an author or date, should be included either withinparenthess within lhe main text, or pæfe@bly set as a note (aEbic numeral withinsquare bGckets within text foilwed by the fuil URL address at ihe end of the paper).

Finâl submission ofthe articleOnæ aæepted tor publi!tion, the Editormay æquestthefinal veFion as an attached fileto an Èmêil or to be $pptied on a CD{OùI tabelled wilh author name(s); tiile of articte;joumal title; file name.

_ Each article must be accompanied by a completed and signed Journal ArticleRecord Fm available from the Editoror on w.emeraldinsight.ârVlartom

The manuscript will be @nsidered to be the definitive v;6ion of lhe article. Theauthor must ensure that it is complete, grammati!lly corect and without spelling ortypogGphi!l erc6.

The prefered file fomat is Word. Another aæptabte fomat tor techni!t/mathscontent is Rich text fomat,

Technical assistance is available by contacting Mike Massey at Emerald. E-mail:mmasæy@emeraldinsight-@m

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