nº7

Directores
ESTHER MUÑIZ ESPADA
Universidad de Valladolid

SERGIO NASARRE AZNAR

Universitat Rovira i Virgili

Secretario
JUAN ANTONIO GARCIA GARCIA
Universidad de la Laguna

Coordinador
HÉCTOR SIMÓN MORENO
Universitat Rovira i Virgili

ISSN 1989-948X

http://www.gipur.org/journals
 Indice

Adequate housing in International and European Human Rights Law: A

Panoramic View ......................................................................................4
Riesgos emergentes en las explotaciones agrarias. La precariedad laboral
en el sector agrícola ..............................................................................19
La segunda vivienda: El timesharing como opción de alojamiento
vacacional .............................................................................................45
Algunos aspectos jurídico-civiles en el acceso a la vivienda 51
Community Law on rural development under the challenge of the priorities
of European Union and International Law ............................................70
 Adequate housing in Interna-
ISSN 1989-948X
tional and European Human
Rights Law: A Panoramic View

Dr Padraic Kenna. National University of Ireland, Galway.

Email: padraic.kenna@nuigalway.ie

ropean Parliament has pointed out that “homelessness

continues to affect people in all EU Member States
Abstract and is an unacceptable violation of human rights”.2
Housing rights derived from international human rights trea-
ties are now accepted by all European States, (whether the 47
In this context housing rights are growing in signi-
Council of Europe States or the 27 EU States) and are leading to
ficance across Europe, and are increasingly used to
a new jurisprudence which impacts on housing, land, planning
establish obligations on States in relation to home-
law. Some existing housing related legal terms are being rede-
fined and clarified in the context of State obligations. One key
lessness, poor quality housing, access and afforda-
element of housing rights relates to “adequacy”, and in this area
bility problems, and social segregation. The right to
the European Committee of Social Rights is developing valuable
adequate housing has been accepted by all European
jurisprudence. This paper outlines the housing rights obliga-
States3 (both EU and non-EU) under the internatio-
tions which States across the wider Europe have adopted, and
nal instruments of the United Nations and Council of
examines the developing concept of “adequacy” as an integral
element of these rights. The now binding Charter of Fundamen-
Europe. States guarantee to secure for certain catego-
tal Rights of the Lisbon Treaty will give added impact to this
ries of people in their jurisdictions a minimum stan-
Council of Europe jurisprudence. dard of adequate housing, and prevention and reduc-
tion of homelessness.4 The establishment of housing
Introduction rights as a means of redirecting and prioritizing State
resources and policies, influencing levels of redistri-
According to Eurostat, 30 million people in the EU butive taxation, inserting human rights norms into
suffered both lack of space and poor housing condi- regulatory mechanisms, and providing redress and
tions in 2009. Some 6% of the EU population suffe- remedies for individual violations, is set to become a
red from severe housing deprivation. The most fre- key area of legal change.
quent problems were noise from the neighbourhood
(22.2%), overcrowding (17.8%) and pollution, crime
or other environmental problems (16.5%). In addi-
living in a dwelling which is considered to be overcrowded, and with
tion, 12.2% of people in the EU lived in households at least one of the following three housing situations: 1) a leaking roof,
affected by high housing costs.1 Meanwhile, the Eu- or damp walls, floors, foundations, or rot in window frames or floor
(referred afterwards as ‘leaking roof’), 2) neither a bath, nor a shower,
1
See Rybkowska, A. & Schneider, M. (2011) Statistics in focus, Po- nor an indoor flushing toilet, or 3) too dark.
pulation and social conditions, Eurostat, 4/2011. In 2008 the EU adop- 2
See Declaration of the European Parliament of 16 December 2010
ted a Regulation establishing common rules for the decennial provision on an EU homelessness strategy, EP T7-0499/2010.
of comprehensive data on population and housing, establishing a com- 3
“European” is an evolving term and here it is taken to mean not just
mon set of housing topics to be collated by Member States. Regula- the 27 EU States, but all 47 States of the Council of Europe.
tion EC 763/2008 13.8.2008, OJ l 218/14. See also Regulation (EC) 4
In a separate development in December 2010, some 391 Members
No. 315/2006 of 22 February 2006 implementing Regulation (EC) No of the European Parliament signed a written declaration stating that ho-
1177/2003 of the European Parliament and of the Council concerning melessness is an unacceptable violation of fundamental human rights
Community statistics on income and living conditions (EU-SILC) as and calling on the Council of Ministers to end street homelessness by
regards the list of target secondary variables relating to housing condi- 2015. See Declaration of the European Parliament of 16 December
tions. “Severe deprivation” is defined the percentage of the population 2010 on an EU homelessness strategy, P7_TA-PROV(2010)0499.
Num. 7, january-june 2012, Page 4 - LandAS | International Journal of Land Law & Agricultural Science
 While the term “right to housing” is commonly used prudence of the monitoring bodies is developing and
to refer to housing rights, the right is usually framed clarifying the nature and extent of State obligations.
in term of a right to adequate housing or access to This article examines the jurisprudence arising from
adequate housing. Thus, “adequate” becomes a very the UN International Covenant of Economic, Social
crucial standard. Often equated with such terms as and Cultural Rights (ICESCR) and the Council of
sufficient, enough or satisfactory, the adequacy level Europe European Social Charter (ESC) and Revi-
of housing may act as a floor or as a ceiling in the sed Charter (RESC) in defining the term “adequate”
realization of States obligations. Clarification in spe- as it applies to housing rights. It will be seen that it
cific terms of standards, extent, indicators and enfor- encompasses much more than a right to shelter, and
cement levels of enjoyment of rights is therefore of may indeed become a standard to be accepted in the
critical importance. Although the definition of “ade- interpretation of the housing rights obligations on EU
quate” can be a contested term, almost all European States arising from the Treaty of Lisbon.8 Indeed, the
States have national legislative and curial standards EU is developing a measurement system in relation to
in relation to building standards, planning, safety, pu- housing conditions across EU States which may well
blic health and other associated obligations. Courts yet provide a leeway into legal definitions.
regularly assess compliance and order enforcement,
in such areas as fire safety, fitness for habitability and Basis of International Housing Rights
building standards.
Housing rights have developed from the internatio-
Legal academic writings in this area concentra- nal human rights instruments and institutions as part
te largely on the dichotomies of prioritization in the of the array of socio-economic rights, although many
allocation of State resources and largesse between the housing rights are to be found within traditional civil
courts, the legislature and the administrative/execu- and political rights (which largely encompass con-
tive parts of the State. This is particularly the case in temporary interpretations of rights to life, liberty and
common law legal systems of English speaking for- property).9 At the level of public international law the
mer colonies, which have inherited various models of intersectionality of civil, political and socio-economic
the Westminster model of governments.5 Defining the rights in now recognized in 1993 UN Vienna Declara-
“minimum core obligations” of States and the con- tion, which stated that all human rights are universal,
cept of “reasonableness” have involved consideration indivisible, interdependent and interrelated.10 Along-
of balancing legislative versus judicial primacy. Whi- side these international obligations many housing
le these questions are often critical for life and indeed rights are enshrined in both private and public law at
basic human dignity, European States have a legacy national, regional and local level, such as regulations
of intervention and regulation in housing systems
with enforceable housing rights and entitlements. To-
day, these often encapsulate concepts of social segre-
gation, affordability, and social inclusion.6
Europe, Commissioner for Human Rights, Recommendation of the
Commissioner for Human Rights on the implementation of the right to
However, the international obligations avert speci- housing, Strasbourg, 30 June 2009 CommDH(2009)5.
fically to a right to adequate housing, and therefore 8
See Consolidated versions of the Treaty on European Union and the
Treaty on the Functioning of the European Union, OJ 2010/C 83/01.
the term has great significance in defining the nature 9
See Fredman, S. Human Rights Transformed: positive rights and
and extent of States obligations.7 The growing juris- positive duties (Oxford, OUP, 2008); I.E. Koch, “Dichotomies, Tricho-
5
Many of the leading socio-economic constitutional and human tomies or Waves of Duties?” (2005) 5(1) Human Rights Law Review
rights cases are South African housing rights cases involving these ty- 81; Stammers, N, Human Rights and Social Movements, (London and
pes of decisions, where the courts are asked to set the relative priorities New York, Pluto Press, 2009); Steiner, H.J., Alston, P. & Goodman, R.
of different sections of rights holders to scarce State allocated resour- International Human Rights in Context. Oxford: OUP, 2007); Council
ces. See for example Government of South Africa and others v Groot- of Europe, Human Rights in International Law, (3rd ed.) (Strasbourg,
boom and others CCT11/00 2001 (1) SA 46 (CC), 4 October 2000, 2000 Council of Europe Publishing, 2007; Goodchild, B, Implementing the
(11) BCLR 1169 (CC); Occupiers of 51 Olivia Road, Berea Township Right to Housing in France: Strengthening or Fragmenting the Welfa-
and 197 Main Street Johannesburg v City of Johannesburg and Others re State, 20 Housing, Theory and Society, 86, (2003); Ishay, M, “The
(24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC) (19 February 2008). See Socialist Contributions to Human Rights: An Overlooked Legacy” In-
Fredman, S, Human Rights Transformed: positive rights and positive ternational Journal of Human Rights, Vol. 9, No. 22, 225–245; Beng-
duties (Oxford, OUP, 2008); Langford, M. (ed.) Social Rights Jurispru- tsson, B, “Housing as a Social Right: Implications for Welfare State
dence (Cambridge University Press, 2008). Theory” (2001) 24(4) Scandanavian Political Studies 255. For a tho-
6
See Kenna, P. (2011) Housing Law, Rights and Policy, Dublin: Cla- rough examination of the arguments in favour of a right to housing from
rus Press. a contemporary American perspective see Adams, KD, “Do We Need a
7
For a consideration of the obligations on States in relation to the Right to Housing?” Nevada Law Journal, Vol. 9, No. 2. 275–423.
European Social Charter and Revised Charter see Mikkola, M. (2010) 10
UN Doc. A/CONF 157/24 (1993) Vienna Declaration and Program-
Social Human Rights in Europe, Helsinki: Legisactio Oy; Council of me of Action, World Conference on Human Rights, Vienna.
Num. 7, january-june 2012, Page. 5 - LandAS | International Journal of Land Law & Agricultural Science
on rights of access, building standards, planning, sa-
nitation and associated law and decisions.11
Of course housing rights, like human rights genera-
lly, are usually seen as rooted in the concept of human
dignity, a concept derived from religious teachings.12
Indeed, the notion of respect for human dignity forms
part of the Preambles of all the international human
rights instruments and the Treaty of Lisbon.13 McCru-
dden, however, argues in a contemporary analysis of
constitutional texts containing the term, that the me-
aning of dignity is highly context-specific, varying
significantly from jurisdiction to jurisdiction and (of-
ten) over time within particular jurisdictions. ‘Digni-
ty’ can provide a convenient cover for the adoption of
interpretations of human rights guarantees that appear
to be intentionally, not just coincidentally, highly con-
tingent on local circumstances.14
Advancing housing rights on the basis of respect
for human dignity, while resonating with moral and
political acclamations can, in terms of actual legal
results, amount to a meagre level of enjoyment of
rights. Yet, it can develop a legal “floor” or minimum
core obligation of State responsibility. In England, the
highest court – the House of Lords, (assessing State
compliance with Article 3 ECHR) invoked the obli-
gation to respect the dignity of homeless and destitute
asylum seekers in asserting significant obligations on
the State in certain circumstances. 15
adequate for the health and well-being of himself and
11
See, for example, the Constitution of the Republic of South Africa
of his family, including food, clothing, housing and
(1996) Article 26(1) “Everyone has the right to have access to adequate medical care and necessary social services, and the
housing”. For a collation of these see UN-Habitat UNHP Report Series,
No. 3. National housing rights legislation (3rd ed) (HS/638/01E) (Nai-
robi, 2006); UN-Habitat UNHRP Report Series, No. 1, Housing rights
legislation: Review of international and national legal instruments
(HS/638/01E) (Nairobi, 2002).
12
For example, in Moldovan v Romania (No. 2) (2005) 44 EHRR 16,
the European Court of Human Rights found that the living conditions
and racial discrimination to which the Moldovan family was publicly
subjected constituted an interference with their human dignity amoun-
ting to “degrading treatment”. See also Kretzmer, Klein & Eckhart, The
Concept of Human Dignity in Human Rights Discourse. (The Hague,
Kluwer Law International, 2002).
13
Article 2 of the European Union Treaty of Lisbon (2009) states “The
Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, in-
cluding the rights of persons belonging to minorities. These values are
common to the Member States in a society in which pluralism, non-dis-
crimination, tolerance, justice, solidarity and equality between women
and men prevail.” OJ 2008/C 115/01. See also Article 21 on the role of
dignity in the international relations of the Union.
14
See McCrudden, C, (2008). ‘Human Dignity and Judicial Interpreta-
tion of Human Rights’ EJIL Vol. 19. No. 4. 655–724. See also Carozza,
P, (2008) ‘Human Dignity and Judicial Interpretation of Human Rights:
A Reply’. EJIL, Vol. 19, No. 5, 931–944; Liebenberg, S, “The Value
of Human Dignity in Interpreting Socio-economic Rights” (2005) 21
South African on Human Rights, 1.
15
Lord Bingham of Cornhill in Regina v Secretary of State for the
Home Department (Appellant) ex parte Adam (FC) (Respondent) and
Others. (Conjoined Appeals) [2005] UKHL 66, at paras. 8–9.
Num. 7, january-june 2012, Page. 6 - LandAS | International Journal of Land Law & Agricultural Science
In terms of public international law, the UN Com-
mittee on Economic, Social and Cultural Rights (UN-
CESCR) and the Council of Europe European Com-
mittee of Social Rights (ECSR) are creating valuable
contemporary clarifications on the nature and extent
of housing rights in Europe. The European Court of
Human Rights (ECtHR) is also developing housing
rights in an oblique way as part of an expanded inter-
pretation of the “life, liberty, property” base of civil
and political rights.16 At EU level the incorporation
of the former Charter of Fundamental Rights of the
European Union into the Treaty of Lisbon (2009)17
gives legal effect to the right “to social and housing
assistance” across Europe.
UN Housing Rights Instruments
Housing rights are viewed as an integral part of
economic, social, and cultural rights within the UN
and other international human rights instruments.18
UN and European instruments are establishing a set
of jurisprudential principles in relation to the right to
housing, often linked to the rights of children, wo-
men, and others. All States have ratified Article 25 of
the Universal Declaration of Human Rights (UDHR)
(1948) which establishes a right to housing:
“(1) Everyone has the right to a standard of living
16
The European Court of Human Rights sometimes addresses socio-
economic rights within these now extended liberal legalist principles.
Thus, in Airey v Ireland (1979-80) 2 EHRR 205 it held “Whilst the Con-
vention sets forth what are essentially civil and political rights, many
of them have implications of a social or economic nature. The Court
therefore considers ... that the mere fact that an interpretation of the
Convention may extend into the sphere of social and economic rights
should not be a decisive factor against such an interpretation; there is no
water-tight division separating that sphere from the field covered by the
Convention.” These “implications of a social and economic nature” can
be seen regularly in relation to cases on Article 8 and Article of Protocol
No.1 on the appropriation of possessions. Indeed, the majority of EC-
tHR cases in this area relate to restitution of property appropriated by
States. However, the obligation to protect property rights is also being
translated into a limited positive obligation to prevent destruction of
homes and other matters, as widespread home ownership becomes the
norm.
17
See Consolidated versions of the Treaty on European Union and the
Treaty on the Functioning of the European Union, OJ 2010/C 83/01.
18
See Craven, The International Covenant on Economic, Social and
Cultural Rights (Oxford, Clarendon Press, 1995); Eide et al, Economic,
Social and Cultural Rights - A Textbook (The Hague, Martinus Nijhoff,
2001). See UNHCHR/UN Habitat, The Right to Adequate Housing,
Factsheet No. 21. (Rev. 1). (UNHCHR/UN Habitat, Geneva, 2009);
UN-Habitat UNHP Report Series, No. 1 Housing Rights legislation:
Review of international and national legal instruments (HS/638/01E)
(Nairobi, 2002); Langford, M. & King, J.A. “Committee on Economic,
Social and Cultural Rights – Past Present and Future” in Langford, M.
(ed.) Social Rights Jurisprudence (Cambridge University Press, 2008).
right to security in the event of unemployment, sick- as to race, colour, sex, language, religion, political or
ness, disability, widowhood, old age or other lack of other opinion, national or social origin, property, birth
livelihood in circumstances beyond his control”. 19 or other status”.

Almost all States have ratified Article 11 of the In- The obligations of States on ratification of the inter-
ternational Covenant on Economic, Social and Cul- national instruments are voluntary, but nevertheless
tural Rights (ICESCR) (1966) which also refers to are meaningful and comprehensive.
housing:
“When a State ratifies one of the Covenants, it ac-
“The States Parties to the present Covenant recog- cepts a solemn responsibility to apply each of the
nize the right of everyone to an adequate standard of obligations embodied therein and to ensure the com-
living for himself and his family, including adequa- patibility of their national laws with their interna-
te food, clothing and housing, and to the continuous tional duties, in a spirit of good faith. Through the
improvement of living conditions. The States Parties ratification of human rights treaties, therefore, States
will take appropriate steps to ensure the realization of become accountable to the international communi-
this right, recognizing to this effect the essential im- ty, to other States which have ratified the same texts,
portance of international co-operation based on free and to their own citizens and others resident in their
consent”. 20 territories.”21

The State’s domestic obligations under the ICESCR There is an obligation on States Parties to recogni-
are set out in Article 2: se, promote, protect, and fulfil the right of everyone
to an adequate standard of living, including adequate
“Each State Party to the present Covenant under- housing.22 States must give due priority to those so-
takes to take steps, individually and through interna- cial groups living in unfavourable conditions by ac-
tional assistance and co-operation, especially econo- cording them particular consideration.
mic and technical, to the maximum of its available
resources, with a view to achieving progressively the The UNCESCR has emphasised that the right to
full realization of the rights recognized in the present adequate housing should not be interpreted narrowly.
Covenant by all appropriate means, including particu- Rather, it should be seen as the right to live somewhe-
larly the adoption of legislative measures. The States re in security, peace and dignity.23 There are obliga-
Parties to the present Covenant undertake to guaran- tions of immediate effect, known as “minimum core
tee that the rights enunciated in the present Covenant obligations” and obligations of progressive realiza-
will be exercised without discrimination of any kind tion depending on available resources.24
19
Universal Declaration of Human Rights, UNGA Resolution 2200A
(XX1) UN Doc A/810. Adopted and proclaimed by General Assembly The term “to achieve progressively” imposes an
resolution 217 A (III) of 10 December 1948. See Eide et al, Economic, obligation on States to move as quickly and effecti-
Social and Cultural Rights - A Textbook (2nd ed.)(The Hague, Martinus
Nijhoff, 2001); Baderin, M. A. & McCorquodale, R. (eds.) Economic,
vely as possible towards the goal of realising fully
Social and Cultural Rights in Action, (Oxford University Press, 2007). each of the rights contained in the Covenant, rather
20
UN Doc. A/6316 (1966) International Covenant on Economic, So- than any indefinite postponement.25 The concept of
cial and Cultural Rights. UNGA Resolution 2200A (XXI) Entered into
force 3 January 1976. The Covenant has been ratified or acceded to
progressive achievement is “in many ways the linch-
at October 2010 by all 47 Council of Europe States: Albania, Ando- pin of the Covenant”.26 The UN Special Rapporteur
rra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, on the right to adequate housing has pointed out that:
Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Georgia, Greece, Hungary, Iceland, Ireland, Italy,
Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Moldova, Mo- 21
See Fact Sheet No. 16 (Rev 1) The Committee on Economic, Social
naco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, and Cultural Rights, (Geneva, UN, 1991), p 2. Available at: www.ohchr.
Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, org/Documents/Publications/FactSheet16rev.1en.pdf
Spain, Sweden, Switzerland, the former Yugoslav Republic of Mace- 22
Alston & Quinn, “The Nature and Scope of States Parties Obliga-
donia, Turkey, Ukraine, United Kingdom. Much work has been carried tions under ICESCR” (1987) 9 HRQ 156.
on defining the specific rights granted in the Covenant. See for instance, 23
UN-Habitat (2009) The Right to Adequate Housing, UN Factsheet
Scott, “Reaching Beyond (Without Abandoning) the category of Eco- 21/Rev 1, p. 8.
nomic, Social and Cultural Rights” (1999) 21 HRQ 633; Gupta et al, 24
Young, K, (2008), “The Minimum Core of Economic and Social
“Creating a Composite Index for Assessing Country Performance in the Rights: A Concept in Search of Content”, Yale Journal of International
Field of Human Rights: Proposal for a New Methodology” (1993) 15 Law, Vol. 33, No. 1. 113–176.
HRQ 131; Donnelly and Howard, “Assessing National Human Rights 25
UN Doc. E/C.12/1771/4, UNCESCR. General Comment No. 4. The
Performance: A Theoretical Approach” (1998) 10 HRQ 214; Chapman, Human Right to Adequate Housing, Geneva.
A. & Russell, S. (2002) Core Obligations: Building a Framework for 26
Alston & Quinn, “The Nature and Scope of States Parties Obliga-
Economic, Social and Cultural Rights. Antwerp: Intersentia. tions under ICESCR” (1987) 9 HRQ 156, at p 172.
Num. 7, january-june 2012, Page. 7 - LandAS | International Journal of Land Law & Agricultural Science
 “This principle imposes an obligation on States to compromised. Housing subsidies should be available
move as expeditiously and effectively as possible for those unable to obtain affordable housing, and te-
towards the goal of realizing fully each of the rights nants should be protected from unreasonable rent le-
found in the Covenant. Put simply, States cannot de- vels or rent increases. In societies where natural mate-
fer indefinitely efforts to ensure the full realization of rials constitute the chief sources of building materials
the Covenant. Not all rights under this text, however, for housing, steps should be taken by States to ensure
require progressive realization. The adoption of legis- the availability of such materials.
lation relating to the non-discrimination clauses of the
Covenant and monitoring of the status of realization 4. Habitable housing
of the rights in question must occur immediately fo- Adequate housing must be habitable. In other words,
llowing ratification. This obligation must be read in it must provide the inhabitants with adequate space
the light of Article 11.1 of the Covenant, in particular, and protect them from cold, damp, heat, rain, wind or
the phrases ‘an adequate standard of living’ and the other threats to health, structural hazards and disease
‘continuous improvement of living conditions’”.27 vectors. The physical safety of occupants must also
be guaranteed.
General Comment No. 4 The Human Rights to Ade-
quate Housing28 5. Accessible housing
Adequate housing must be accessible to those entit-
A number of conditions must be met before parti- led to it. Disadvantaged groups must be accorded full
cular forms of shelter can be considered to consti- and sustainable access to adequate housing resources.
tute “adequate housing.” These elements are just as Thus, such disadvantaged groups as the elderly, chil-
fundamental as the basic supply and availability of dren, the physically disabled, the terminally ill, HIV-
housing.29 The UNCESCR General Comment 4 spells positive individuals, persons with persistent medical
out the elements of housing rights which States must problems, the mentally ill, victims of natural disas-
address to comply with the ICESCR. ters, people living in disaster-prone areas and other
vulnerable groups should be ensured some degree
“1. Legal security of tenure of priority consideration in the housing sphere. Both
All persons should possess a degree of security of housing law and policy should take fully into account
tenure which guarantees legal protection against for- the special housing needs of these groups.
ced eviction, harassment and other threats. Govern-
ments should consequently take immediate measures 6. Location
aimed at conferring legal security of tenure upon tho- Adequate housing must be in a location which
se households currently lacking such protection. Such allows access to employment options, health care ser-
steps should be taken in genuine consultation with vices, schools, child care centres and other social fa-
affected persons and groups. cilities. Housing should not be built on polluted sites
nor in immediate proximity to pollution sources that
2. Availability of services, materials and infrastruc- threaten the right to health of the inhabitants.
ture
All beneficiaries of the right to adequate housing 7. Culturally adequate housing
should have sustainable access to natural and com- The way housing is constructed, the building ma-
mon resources, clean drinking water, energy for co- terials used and the policies underlying these must
oking, heating and lighting, sanitation and washing appropriately enable the expression of cultural iden-
facilities, food storage facilities, refuse disposal, site tity and diversity. Activities geared towards develop-
drainage and emergency services. ment or modernization in the housing sphere should
ensure that the cultural dimensions of housing are not
3. Affordable housing sacrificed”.30
Personal or household costs associated with housing
should be at such a level that the attainment and sa- Although these agreements establish an impor-
tisfaction of other basic needs are not threatened or tant international legal obligations for ratifying Sta-
27
UN Doc. E/CN.4/Sub.2/1993/15, 1st Report of Mr Sachar Special tes to work towards providing adequate housing for
Rapporteur. all, they do not provide specific global standards for
28
UN Doc. E/C.12/1771/4, UNCESCR. General Comment No. 4. The
Human Right to Adequate Housing, Geneva.
what constitutes “adequate housing.” Any definition
29
UN-Habitat (2009) The Right to Adequate Housing, UN Factsheet 30
UN Doc. E/C.12/1771/4. UNCESCR, General Comment 4. The
21/Rev 1, pp. 8-12. Human Right to Adequate Housing.
Num. 7, january-june 2012, Page. 8 - LandAS | International Journal of Land Law & Agricultural Science
of “adequate housing” will need to be highly con-
text- and country-specific. One UN Report on esta-
blishing indicators for measuring housing adequacy
pointed out that housing adequacy in part pertains to
the habitability of one’s home. Habitability includes
“adequate space and [protection] … from cold, damp,
heat, rain, wind or other threats to health, structural
hazards, and disease vectors.31 A potential ‘indicator’
for housing adequacy, therefore, might be the average
number of rooms per dwelling, as this measure argua-
bly addresses the notion of ‘adequate space’ implicit
in the sub-element ‘habitability.’ Yet, habitability is
only one aspect of ‘housing adequacy.’ Other sub-ele-
ments may also include accessibility and affordabili-
ty, among others. Therefore, in order to have a robust
measure of the element ‘housing adequacy,’ it would
be important to include indicators, which present in-
formation on all of the different aspects that make up
that element.32
The Conclusions and Recommendations of the UN-
CESCR apply the adequacy obligations to individual
State in their monitoring cycles, and recently in rela-
tion to Great Britain and Northern Ireland concluded
that:
The Committee calls upon the State party, in line
with its general comment no. 4 (1991) on the right
to adequate housing, to intensify its efforts to ensure
that everyone has access to housing and to review its
policies and develop effective strategies, including a
gender impact assessment, aimed at increasing the le-
vels of affordable housing, including social housing.
The Committee also recommends that the State party
take into consideration the Homelessness etc. (Scot-
land) Act 2003 as best practice, especially its provi-
sion relating to the right to housing as an enforceable
right.33
31
Ibid. See also United Nations Housing Rights Programme, Working
Paper No. 1, Monitoring housing rights. Developing a set of indicators
to monitor the full and progressive realisation of the human right to
adequate housing. Background paper for the 2003 expert group meeting
on housing rights monitoring, p. 19. UN-HABITAT (United Nations
Human Settlements Programme) and Office of the United Nations High
Commissioner for Human Rights Nairobi, 2003. Available at: www.
unhabitat.org/pmss.
32
This Background paper suggested six indicators for housing
adequacy: Per thousand households with potable water; Per thousand
households with sanitation facilities; Median household monthly housing
payment / Median household monthly income; Per thousand households
with more than 2 persons per room; Per thousand households living
in temporary/ dilapidated structures; Legislation ensuring handicap
accessibility to multi-unit residential buildings. It is worth pointing out
that contemporary societies across the world view such issues as access
to TV and ICT as an essential element of adequate housing, yet none of
these is considered in any rights approaches.
33
See UN Doc. E/C.12/GBR/CO/5 Concluding observations of the
Committee on Economic, Social and Cultural Rights, United Kingdom
of Great Britain and Northern Ireland, the Crown Dependencies and
Num. 7, january-june 2012, Page. 9 - LandAS | International Journal of Land Law & Agricultural Science
The Council of Europe34
The Council of Europe, established in 1949 and
now with 47 Member States promotes housing rights
through the European Social Charter and Revised
Charter,35 and in an oblique way through its European
Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR).36 The Commissio-
ner for Human Rights, Mr Thomas Hammarberg,
has recently clarified the legal protection of housing
rights, obstacles and gaps in implementation, with re-
commendations on how these rights are to be reali-
sed.37
European Social Charter and Revised Charter
the Overseas Dependent Territories, June 2009, para 29. In UN Doc
E/C.12/GBR/CO/5/Add.1 Comments by the United Kingdom of
Great Britain and Northern Ireland, the Crown Dependencies and the
Overseas Dependent Territories on the Concluding Observations the
UK government responded in 2009 with the following: “In paragraph
13 the Committee states that it ‘regrets the statement made by the State
party’s delegation that economic, social and cultural rights are mere
principles and values’. The UK delegation does not recollect making
such a statement. As recorded in the Committee’s press release, ‘The
[UK] Government does not dispute that economic, social and cultural
rights are as important and indivisible from civil and political rights.
However, this does not mean that all human rights require identical
approaches…’. We are aware of the Committee’s continuing concerns
over the legal status of the Covenant in UK law. We re-iterate our
position that the UK regards itself as legally bound to comply with
the Covenant. However, how to ensure compliance with the Covenant
is a matter for each State, as confirmed by General Comment No 9.
There is no provision in the Covenant obligating its comprehensive
incorporation or requiring it to be accorded any specific type of status
in national law. We consider that the UK’s method of implementation
ensures the fulfilment of the obligations under the Covenant.”
34
This is not the same organisation as the European Union. See Council
of Europe, About the Council of Europe, http://www.coe.int/T/e/Com/
about_coe/ - giving a brief summary of the Council, its history, and its
aims.
35
Turin, 18.X.1961, Council of Europe, European Treaty Series - No.
35; European Social Charter. (Revised) Council of Europe, Strasbourg
3/5/1996. The binding nature at national level of the Charters depends
on whether a dualist or monist legal systems pertains, but many dualist
States have incorporated the Charter (or parts of it) into national law.
A total of 43 States have ratified the Charter (either the 1961 Charter
or revised version). Albania, Andorra, Armenia, Austria, Azerbaijan,
Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Georgia, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal,
Romania, Russian Federation, Slovak Republic, Serbia, Slovenia,
Spain, Sweden, the former Yugoslav Republic of Macedonia, Turkey
and the United Kingdom have signed and ratified the Social Charter or
Revised Charter. The four States which have signed but not yet ratified
the Charter are Lichtenstein, Monaco, San Marino and Switzerland.
36
See website: http://conventions.coe.int/treaty/en/Treaties/Html/005.
htm
37
See Housing Rights: The Duty to Ensure Housing for All. CommDH/
IssuePaper(2008)1 Strasbourg, 25 April 2008. Available at: https://wcd.
coe.int/ViewDoc.jsp?id=1292391&Site=CommDH
 States which sign and ratify the European Social
Charter and Revised Charter (RESC), with its 31 Ar-
ticles on socio-economic rights, accept as the aim of
their policies, to be pursued by all appropriate means,
both national and international in character, the attain-
ment of conditions in which the rights and principles
within the Charters may be effectively realised wi-
thout discrimination.38 The Charters establish housing
obligations in relation to physically and mentally di-
sabled persons,39 children and young persons,40 and
rights to social, legal and economic protection for fa-
milies, including a State obligation to provide family
housing.41 The Social Charters grant migrant workers
an explicit right to be treated equally in relation to
access to housing.42 Article 23 sets out the right of
elderly persons to provision of housing suited to their
needs and their state of health.43 The significant re-
ferences to rights to adequate housing are set out in
Article 31(1)
“With a view to ensuring the effective exercise of
the right to housing, the Parties undertake to take
measures designed:
1. to promote access to housing of an
adequate standard;44
The European Committee of Social Rights (ECSR)
monitors States’ compliance with the Charter through
regular reports from States and the Collective Com-
38
Part V of Article E of the Charter states: “The enjoyment of the rights
set forth in this Charter shall be secured without discrimination on any
ground such as race, colour, sex, language, religion, political or other
opinion, national extraction or social origin, health, association with
a national minority, birth or other status.” State parties have to accept
at least 6 of the 9 Articles of the “hard core” provisions of the Charter
(Articles 1 (right to work), 5 (freedom of association), 6 (collective
bargaining), 7 (right of children and young persons to protection), 12
(right to social security), 13 (right to social and medical assistance), 16
(right of the family to social, legal and economic protection), 19 (right
of migrant workers and their families to protection) and 20 (right to
equal opportunities and equal treatment in matters of employment and
occupation without discrimination on the grounds of sex) and select an
additional number of Articles or numbered paragraphs to be bound by.
The total number of Articles or numbered paragraphs by which every
State is bound is not less than 16 Articles or 63 numbered paragraphs.
39
Article 15.
40
Article 17.
41
Article 16 on the right of the family to social, legal and economic
protection states: “With a view to ensuring the necessary conditions
for the full development of the family, which is a fundamental unit of
society, the Contracting Parties undertake to promote the economic,
legal and social protection of family life by such means as social and
family benefits, fiscal arrangements, provision of family housing,
benefits for the newly married, and other appropriate means.”
42
Article 19.
43
Article 23.
44
States which had ratified Article 31(1) in February 2011 were
were Andorra, Finland, France, Italy, Lithuania, Netherlands, Norway,
Portugal, Slovenia, Sweden, Turkey and Ukraine. See website: http://
conventions.coe.int/Treaty/Commun/ListeDeclarations.asp
Num. 7, january-june 2012, Page. 10 - LandAS | International Journal of Land Law & Agricultural Science
plaints system.45 The ESCR has clarified the meaning
of the term adequacy within Article 31.1. in a num-
ber of Conclusions and within a number Decisions on
Collective Complaints. In this context it is significant
that the ESCR has held in ERRC v Greece Complaint
No. 31/2005 (para 17) that Articles 16 and 31 of the
Charter overlap.
The Committee considers that, as many other provi-
sions of the Charter, Articles 16 and 31, though diffe-
rent in personal and material scope, partially overlap
with respect to several aspects of the right to housing.
In this respect, the notions of adequate housing and
forced eviction are identical under Articles 16 and
31.
Thus the interpretation of the obligations of Article
16 of the Charter on the rights of families to social,
legal and economic protection encompasses a right to
adequate housing.46
45
The mission of the European Committee of Social Rights (ECSR)
is to judge that States Parties are in conformity in law and in practice
with the provisions of the European Social Charter. In respect of
national reports, the Committee adopts Conclusions and in respect of
collective complaints, it adopts Decisions. The Committee is composed
of 15 independent, impartial experts, elected by the Council of Europe
Committee of Ministers for a 6-year term of office, renewable once.
The ESCR issues a set of questions to States in preparation of periodic
monitoring reports and in relation to Article 31.1. the following questions
are raised: “Please describe the obligatory standards that apply in
relation to housing quality. Please provide information on the extent to
which sub-standard dwellings exist. Please indicate what measures are
taken to improve housing standards, especially in public-owned housing
stock. Please describe the means by which compliance with housing
standards is ensured in practice”. See 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); Churchill, R. & Khaliq, U. ‘The Collective Complaints System
of the European Social Charter – An Effective Mechanism for Ensuring
Compliance with Economic and Social Rights?’ 15 European Journal of
International Law (2004) 417; Cullen, H. ‘The Collective Complaints
System of the European Social Charter: Interpretative Methods of the
European Committee of Social Rights’ Human Rights Law Review 9: 1
(2009), 61-93. Significant housing related Collective Complaints include
Complaint 13/2002 - Autism-Europe v. France; Complaint 15/2003 -
European Roma Right Center (ERRC) v. Greece; Complaint 27/2004
- European Roma Right Center (ERRC) v. Italy; Complaint 31/2005 -
European Roma Right Center (ERRC) v. Bulgaria; Complaint 51/2008
- European Roma Rights Centre (ERRC) v. France. For summaries of
the decisions on the merits of collective complaints registered between
1998–2010 see http://www.coe.int/t/e/human_rights/esc/7_Resources/
CCSummariesMerits_en.pdf
46
Article 16 states: “With a view to ensuring the necessary conditions
for the full development of the family, which is a fundamental unit
of society, the Parties undertake to promote the economic, legal and
social protection of family life by such means as social and family
benefits, fiscal arrangements, provision of family housing, benefits for
the newly married and other appropriate means.” States which have
ratified Article 16 at February 2011 are Austria, Azerbaijan, Belgium,
Bosnia and Herzegovinia, Bulgaria, Croatia, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, Norway, Poland, Portugal, Romania, Russian Federation,
Serbia, Slovakia, Slovenia, Spain, Sweden, Turkey, Ukraine, United
 Article 16 in its very wording of the Charter (En-
glish version, which clarifies the French version),
provides for the right to housing of families as an ele-
ment of the right of the family to social, legal and eco-
nomic protection. The Committee has already given
an interpretation of the notion of the right to housing
under Article 16. It summarised this interpretation in
its decision on the complaint ERRC v. Greece (ERRC
v. Greece, Complaint No. 15/2003, decision on the
merits of 8 December 2004, § 24) as follows: “The
Committee recalls its previous case law to the effect
that in order to satisfy Article 16 states must promote
the provision of an adequate supply of housing for
families, take the needs of families into account in
housing policies and ensure that existing housing be
of an adequate standard and include essential servi-
ces (such as heating and electricity). The Committee
has stated that adequate housing refers not only to a
dwelling which must not be sub-standard and must
have essential amenities, but also to a dwelling of sui-
table size considering the composition of the family
in residence. Furthermore the obligation to promote
and provide housing extends to
security from unlawful eviction”.47
The jurisprudence of the ECSR in relation to Ar-
ticle 16 is, of course, relevant to the application of
these standards of adequacy only to families.48 In
relation to the definition of “family” the ECSR has
pointed out that the protection afforded in this pro-
vision covers single-parent families. The definition
may also be enlarged by reference to the decisions
of the European Court of Human Rights in relation
to Article 8 which states: “Everyone has the right to
respect for his private and family life, his home and
his correspondence.”49
Kingdom. See website: http://conventions.coe.int/Treaty/Commun/
ListeDeclarations.asp
47
ERRC v Greece Complaint No. 31/2005, para 16.
48
However, it was established in DCI v The Netherlands, Complaint
No. 47/2008 that States Parties must make sure that evictions are justified
and are carried out in conditions that respect the dignity of the persons
concerned, and must make alternative accommodation available. In
this case the ECSR held that, “since in the case of unlawfully present
persons no alternative accommodation may be required by States,
eviction from shelter should be banned as it would place the persons
concerned, particularly children, in a situation of extreme helplessness
which is contrary to the respect for their human dignity”. Therefore,
“On the basis of the above, the Committee concludes that States Parties
are required, under Article 31§2 of the Revised Charter, to provide
adequate shelter to children unlawfully present in their territory for
as long as they are in their jurisdiction. Any other solution would run
counter to the respect for their human dignity and would not take due
account of the particularly vulnerable situation of children”(para 64).
49
The European Court of Human Rights has interpreted family as
including those with close family ties, although there is no pre-determined
model of a family or family life. It includes any stable relationship, be it
married, unmarried, engaged, or de facto; between parents and children;
Num. 7, january-june 2012, Page. 11 - LandAS | International Journal of Land Law & Agricultural Science
Since “family” can mean different things in diffe-
rent places and at different times, the Charter refers
to the definitions used in national law. No distinction
is made between the various models of family and, in
keeping with the case law of the European Court of
Human Rights in relation to Article 8 of the Conven-
tion; the scope of Article 16 is not restricted to family
based on marriage. Consequently, every constella-
tion defined as “family” by national law falls under
the protection of Article 16. States enjoy a margin of
appreciation to choose the means in their endeavour
to ensure the social, legal and economic protection of
the various types of families that can be found in the
population.50
Thus, some 37 ratifying States have accepted the
obligations of ensuring that existing and new housing
for families must be of an adequate standard under the
Articles 16 and 31 of the Charter, and this definition
has wider implications than just the standard of the
dwelling. It is important to examine how the ECSR
has treated this definition in detail to clarify the obli-
gations of these 37 States.51 For example, in Autisme
Europe v France the ECSR stated that:
The Committee recalls, as stated in its decision rela-
tive to Complaint No.1/1998
(International Commission of Jurist v. Portugal, §
32), that the implementation of the
Charter requires the State Parties to take not me-
rely legal action but also practical action to give full
effect to the rights recognised in the Charter. 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 allows
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
resources. States Parties must be particularly mindful
of the impact that their choices will have for groups
same-sex couples, siblings; grandparents and grandchildren. See Schalk
and Kopf v Austria (Application No. 31041/04) Judgment 24 June
2010 where the ECtHR held that a same-sex couple living in a stable
de facto relationship falls within the notion of “family life”. See also
Kozak v Poland (Application No. 13102/02) Judgment 2 March 2010;
Keegan v Ireland (1994) 18 EHRR 342; Marckx v Belgium (1979) 2
EHRR 330. In Kroon and others v The Netherlands (Application No.
18535/91 Judgment 27 October 1994, the European Court of Human
Rights held that the notion of “family life” in Article 8 was not solely
confined to marriage-based relationships and might encompass other
de facto “family ties” such as where parties are living together outside
marriage.
50
Conclusions 2006, Statement of Interpretation on Article 16, p. 13.
51
See Digest of the Case Law of the European Committee of
Social Rights, Council of Europe, (September 2008). Conclusions of
the ECSR are available at: http://hudoc.esc.coe.int/esc2008/query.
asp?language=en
with heightened vulnerabilities as well as for others
persons affected including, especially, their families The Committee agrees that the actual wording of
on whom falls the heaviest burden in the event of ins- Article 31 of the Charter cannot
titutional shortcomings.52 be interpreted as imposing on states an obligation of
“results”. However, it notes that
In Autism Europe v. France the ECSR established the rights recognised in the Social Charter must take
that the measures taken to implement the Charter Ar- a practical and effective, rather
ticles must meet three criteria: (i) a reasonable time- than purely theoretical, form (International Com-
frame, (ii) a measurable progress and (iii) a financing mission of Jurists v. Portugal,
consistent with the maximum use of available resour- Complaint No. 1/1998, decision on the merits of 9
ces. In FEANTSA v France the ECSR pointed out September 1999, §32).
53

that that the implementation of the rights to housing This means that, for the situation to be compatible
must be monitored as well as their impact. Reaso- with the treaty, states party
nable deadlines must be set and Article 31 must be must:
considered in the light of other international housing a. adopt the necessary legal, financial and operatio-
rights instruments such as the ICECSR. nal means of ensuring steady progress towards achie-
ving the goals laid down by the Charter;
The Committee notes that in several areas the Go- b. maintain meaningful statistics on needs, resour-
vernment fails to supply relevant statistical informa- ces and results;
tion or does not compare identified needs with the re- c. undertake regular reviews of the impact of the
sources made available and results achieved. Regular strategies adopted;
checks do not appear to be carried out on the effecti- d. establish a timetable and not defer indefinitely
veness of the policies applied. In the absence of any the deadline for achieving the objectives of each sta-
commitment to or means of measuring the practical ge;
impact of measures taken, the rights specified in the e. pay close attention to the impact of the policies
Charter are likely to remain ineffective. adopted on each of the categories of persons concer-
In connection with timetabling – with which other ned, particularly the most vulnerable.56
regulatory bodies of international instruments are
also very concerned – it is essential for reasonable The ESCR has set out detailed housing obligations
deadlines to be set that take account not only of admi- arising from the Charter in relation to the definition
nistrative constraints but also of the needs of groups and scope of the term “adequacy” of housing.
that fall into the urgent category. At all events, achie-
vement of the goals that the authorities have set them- Definition and Material scope
selves cannot be deferred indefinitely. The authorities
must also pay particular attention to the impact of States must guarantee to everyone the right to
their policy choices on the most vulnerable groups, in adequate housing.57 They should promote access to
this case individuals and families suffering exclusion housing in particular to the different groups of vulne-
and poverty (Autisme Europe v. France, Complaint rable persons, such as low-income persons, unemplo-
No. 13/2002, decision on the merits of 4 November yed persons, single parent households, young persons,
2003, §53). persons with disabilities including those with mental
On the interpretation of Article 31 in the light of health problems.58
other international instruments
The Committee considers that Article 31 must be The definition of adequate housing must be applied
considered in the light of relevant international ins- not only to new constructions, but also gradually to
truments that served as inspiration for its authors or in the existing housing stock. It must also be applied to
conjunction with which it needs to be applied.54

Again, in FEANTSA v France55 the ECSR also po- 56

Complaint No. 39/2006, paras 55-56.
57
Conclusions 2003, France, p. 221. Of course, this does not require
inted out that the obligation of States in realizing the that States directly provide housing for all. However, States must ensure
rights in the Charter must be practical and effective. that there is a sufficient supply of adequate and affordable housing to
meet the varying needs. Sufficient social housing or housing allowances
52
Complaint No. 13/2002, para 53. must be provided for those unable to access adequate and affordable
53
Complaint No. 13/2002, para 53. housing in the purchase or rental markets. See Mikkola, M. (2010)
54
Complaint No. 39/2006, paras 61-64. Social Human Rights in Europe, Helsinki: Legisactio Oy, p. 348.
55
Complaint No. 39/2006. 58
Conclusions 2003, Italy, p. 342.
Num. 7, january-june 2012, Page. 12 - LandAS | International Journal of Land Law & Agricultural Science
housing available for rent as well as to housing owner under the General Comments (outlined above) will
occupied housing.59 apply to the evaluation of compliance with Article 31
and Article 16 of the Charter.
Habitability and Standards
Suitability
In ERRC v Italy the ECSR emphasized the obli-
60

gations of adequacy under Article 31.1. which means Suitability is often related to size, surroundings,
a dwelling that is structurally secure, safe from a sa- size, location etc, as well as cultural factors, and the
nitary and health point, i.e. possesses all basic ame- standards of General Comment 4 will be applicable.
nities, such as water, heating, waste disposal, sanita-
tion facilities, electricity; not overcrowded and with Effectiveness and Enforcement
secure tenure supported by law. There are overlaps
here with the minimum standards established under It is incumbent on the public authorities to ensure
the European Convention of Human Rights Articles that housing is adequate through different measures
2, 3 and 8, where the protection of life, prevention such as, in particular, an inventory of the housing
of inhuman and degrading treatments and respect for stock, injunctions against owners who disregard obli-
home and family life have established minimalist gations, urban development rules and maintenance
benchmarks.61 obligations for landlords. Public authorities must also
limit against the interruption of essential services such
The notion of adequate housing must be defined in as water, electricity and telephone.65
law. “Adequate housing” means:
Even if under domestic law, local or regional au-
1. a dwelling which is safe from a sanitary and thorities, trade unions or professional organisations
health point of view, i.e. that are responsible for exercising a particular function,
possesses all basic amenities, such as water, hea- States parties to the Charter are responsible, under
ting, waste disposal, their international obligations to ensure that such res-
sanitation facilities, electricity, etc and where speci- ponsibilities are properly exercised. Thus, ultimate
fic dangers such as the responsibility for policy implementation, involving at
presence of lead or asbestos are under a minimum, supervision and regulation of local ac-
control;62 tion, lies with the Government, which must be able to
2. a dwelling which is not over-crowded, that the show that both local authorities and itself have taken
size of the dwelling must be practical steps to ensure that local action is effective.66
suitable in light of the number of persons and the Indeed, in COHRE v Croatia67 stated:
composition of the
household in residence, In respect of the adequacy of the housing and tenu-
3. a dwelling with secure tenure supported by the re provided to families who have returned or wish to
law. This issue is covered by Article 31§2.63 return to Croatia, the Committee holds that the com-
plainant organisation has not produced sufficient evi-
In FEANTSA v France the ECSR pointed out that dence to establish that the quality of housing provided
it attaches great importance to General Comments 4 under the housing programme does not fulfil Article
and 7 of the UN Committee of Economic, Social and 16.
Cultural Rights.64 Thus, the obligations established
59
Conclusions 2003, France, p. 221. FEANTSA v France, Complaint
In every European country, there is a building re-
No39/2006, para 77. gulatory system encompassing the building regula-
60
Complaint No. 27/2004. tions and the building control system. Building regu-
61
See, for example, Öneryıldız v Turkey (2004) 39 EHRR 12, Mol-
dovan v Romania (2005) 44 EHRR 16; Lopez-Ostra v Spain (1991) 14
lations set minimum quality requirements to ensure
EHRR 319; Geurra v Italy (1998) EHRR 357; Moreno-Gomez v Spain that buildings are safe, healthy, energy-efficient and
(2005) 41 EHRR 40.
62
In 2007 the ECSR requested further information from Italy on levels 65
Conclusions 2003, France, p. 224.
of asbestos “In order to decide whether the situation is in conformity 66
European Roma Rights Center (ERRC) v. Italy, Complaint No.
with the Revised Charter, the Committee asks for detailed information 27/2004, para 26; FEANTSA v France, Complaint No. 39/2006, para
in the next report on the measures taken as well as their effectiveness. It 79.
also reiterates its request for information on the control of exposure to 67
Complaint No. 52/2008, Decision on the Merits 22 June 2010, para.
lead and asbestos.” See Conclusions 2007, Italy, Vol. 2. 76. This Complaint under Article 16 related to the failure to provide ad-
63
Conclusions 2003, France, p. 221. equate restitution or compensation to ethnic Serbs who were arbitrarily
64
FEANTSA v France, Complaint No. 39/2006, para 67. expelled from their homes during the conflict in former Yugoslavia.
Num. 7, january-june 2012, Page. 13 - LandAS | International Journal of Land Law & Agricultural Science
accessible to everyone who lives and works in and
around them. Building control aims to guarantee the
application and enforcement of these minimum requi-
rements. The purpose and the subjects covered by the
building regulations are identical in European Union
(EU) countries. However, there are many differences
between countries regarding who sets the building re-
gulations, how the technical building regulations are
organized and formulated, what is the role of national
standards and how building regulations apply to exis-
ting buildings.68
housing of an adequate standard within a reasonable
time.75
The ECSR considered that it would be positive if
the converson of homeless shelters into around-the-
clock structures became a general practice, and that
any offer of accommodation in them should lead in
the short or medium term to an independent housing
solution.76
The European Court of Human Rights (ECtHR)

The effectiveness of the right to adequate housing The ECHR creates a supranational human rights
requires its legal protection through adequate proce- appeals mechanism through the European Court of
dural safeguards. Occupiers must have access to affor- Human Rights (ECtHR), and many States have in-
dable and impartial legal and non-legal remedies.69 tegrated the Convention into national law. The main
Any appeal procedure must be effective.70 The ECSR Articles of the European Convention on Human
held that insufficient progress as regards the eradica- Rights which are being developed to address housing
tion of substandard housing and the lack of proper rights are: Article 1 on the obligation to respect hu-
amenities of a large number of households constitute man rights; Article 2 on the right to life, Article 3
a violation of Article 31§1 of the Revised Charter.71 right to State protection from inhuman and degrading
treatment, Article 6 on the right to a fair trial or hea-
Temporary Accommodation ring in civil and criminal matters, Article 8 on respect
for privacy family life and home, Article 13 on the
The adequacy of emergency housing or shelters has right to an effective remedy, Article 14 prohibition of
also been examined by the ECSR. In ERRC v. Bulga- discrimination in the protection afforded by the other
ria72 the ECSR again emphasized that the temporary Articles, and Article 1 of Protocol 1 on the right to the
supply of shelter cannot be considered as adequa- arbitrary deprivation of possessions.
te and individuals should be provided with adequa-
te housing within a reasonable period.73 In France v The ECtHR has developed jurisprudence on housing
FEANTSA the ESCR held that:
74
rights in an oblique way by treating housing rights
issues within its contemporary expanded protection
As regards living conditions in sheltering facilities, of life, liberty and property approach, yet, transcen-
the Committee believes these ding, to some extent, these classical liberal concepts
should be such as to enable living in keeping with of constitutional and human rights.
human dignity, and that support
should be routinely offered to help the persons wi- While there is no ECHR obligation for a universal
thin the facilities to attain the provision of housing by the State, a combination of
greatest possible degree of independence. It also re- obligations under Articles 3 on State obligations to
calls that the temporary provision prevent inhuman and degrading treatment, and Arti-
of accommodation, even decent accommodation, cle 8, on State respect for privacy, home and family
cannot be considered a satisfactory solution, and life, are creating some legally defined minimum State
people living under such conditions must be offered obligations.77 Furthermore, positive obligations un-
68
See Pedro, J. B, Meijer, F. and Visscher, H. (2009), “Comparison of der Article 8 have ordered State action in relation to
tasks and responsibilities in the building control systems of European protection of housing from smells and nuisance from
Union countries”, in Proceedings of COBRA 2008 - The construction
and building research conference of the Royal Institution of Chartered
a waste treatment plant,78 toxic emissions emanating
Surveyors, RICS, London, p. 1339-1355; Meijer, F., Visscher, H. and 75
Complaint No. 39/2006. Para 108.
Sheridan L. (2002), Building regulations in Europe, Parts I & 2, A com- 76
Complaint No. 39/2006. Para 109.
parison of the systems of building control in eight European Countries. 77
See Kenna, P. (2008), “Globalization and Housing Rights”, Indiana
Delft University Press, Delft. Journal of Global Legal Studies, Vol. 15, Issue, 2, 397-469; Mowbray,
69
Conclusions 2003, France, p. 224. A. Human rights law in perspective: The development of positive ob-
70
FEANTSA v. France, Complaint No 39/2006, paras 80-81. ligations under the European convention on human rights, (Sweet &
71
Complaint No 39/2006, para 81. Maxwell, London, 2004); Kenna, P. Housing Rights: Positive Duties
72
Complaint No. 31/2005. and Enforceable Rights at the European Court of Human Rights, [2008]
73
Complaint No. 31/2005. Para. 34. EHRLR, 2, 193-209.
74
Complaint No. 39/2006. 78
Lopez-Ostra v Spain, (1991) 14 EHRR 319.
Num. 7, january-june 2012, Page. 14 - LandAS | International Journal of Land Law & Agricultural Science
from a chemical factory,79 environmental pollution However, the primary protection for housing rights
from a steel plant,80 and noise from bars and night- is contained in the Charter of Fundamental Rights of
clubs.81 the European Union which has now been incorpora-
ted into the Treaty of Lisbon.87 This Charter has now
Some housing rights available in national laws, been integrated and given full legislative force within
such as entitlements to State housing, have been held the Treaty of Lisbon under Article 6:88
to amount to a possession, thereby benefiting from the
protection of ECHR Article 1 of Protocol 1, on the 1. The Union recognises the rights, freedoms and
prevention of State interference with that right.82 This principles set out in the Charter of Fundamental Rights
has led to a further elaboration of such housing rights, of the European Union of 7 December 2000, as adap-
with State obligations in respect to fair procedures ted at Strasbourg, on 12 December 2007, which shall
and speedy implementation (Article 6)83 and non-dis- have the same legal value as the Treaties.
crimination in their implementation (Article 14). Of The provisions of the Charter shall not extend in
course, this jurisprudence builds on pre-existing do- any way the competences of the Union as defined in
mestic rights or entitlements, rather than any creation the Treaties.
of new rights. The rights, freedoms and principles in the Charter
shall be interpreted in accordance with the general
The European Union (EU) provisions in Title VII of the Charter governing its
interpretation and application and with due regard to
While the 1957 Treaty of Rome and subsequent EU the explanations referred to in the Charter, that set out
Treaties do not refer directly to a right to housing, the sources of those provisions.89
much EU social policy, particularly the drive toward a 2. The Union shall accede to the European Conven-
single market in goods and services, has a bearing on tion for the Protection of Human Rights and Funda-
housing rights and housing policy. To avoid a “race mental Freedoms. Such accession shall not affect the
to the bottom” and in the absence of EU institutio- Union’s competences as defined in the Treaties.
nal competence (outside labor legislation) to introdu- 3. Fundamental rights, as guaranteed by the Euro-
ce minimum standards in areas of social policy, the pean Convention for the Protection of Human Rights
Community developed an alternative approach based and Fundamental Freedoms and as they result from
on “fundamental social rights” in the 1990s.84 Indi- the constitutional traditions common to the Mem-
viduals have been able to rely on their status as ‘citi- ber States, shall constitute general principles of the
zens of the Union’ to obtain access to social benefits Union’s law.
in other Member States, such as minimum subsisten-
ce and maternity benefits.85 Unfair contract terms in Article 51(1) of the Charter stipulates that:
housing contracts are prohibited across Europe un-
der the 1993 Directive on Unfair Terms in Consumer “the provisions of this Charter are addressed to the
Contracts. 86
institutions, bodies, offices and agencies of the Union
with due regard for the principle of subsidiarity and to
79
Geurra v Italy (1998) EHRR 357. the Member States only when they are implementing
80
Fadeyeva v Russia (2007) 45 EHRR 10. 87
Charter of Fundamental Rights of the European Union OJ 2010/C
81
Moreno-Gomez v Spain (2005) 41 EHRR 40. 83/02. See also Consolidated versions of the Treaty on European Union
82
See Muller v Austria (1975) 3 DR 25; Gaygusuz v Austria (1996) 23 and the Treaty on the Functioning of the European Union Charter of
EHRR 364; Feldbrugge v The Netherlands (1986) 8 EHRR 425; Koua Fundamental Rights of the European Union (OJ C 83/13, 30.3.2010).
Poirrez v France (2005) 40 EHRR 34. 88
Poland and UK originally opted out of the Charter but Poland has
83
See for example Telyatyeva v Russia, App. No. 18762/06, where made some newer arrangements.
the delay of almost two years by a local authority in executing an order 89
Article 52(7) of the Charter states that: “The explanations drawn
from a local court, holding that the applicant’s right to housing amount- up as a way of providing guidance in the interpretation of this Charter
ed to a possession under ECHR Article 1 of Protocol 1. shall be given due regard by the courts of the Union and of the Mem-
84
See Hervey, T.K and J. Kenner, Economic and Social Rights under ber States.” These Explanations relating to the Charter of Fundamental
the Charter of Fundamental Rights of the European Union, (Oxford, Rights (OJ 2007/C 303/02) have been updated under the responsibility
Hart, 2003). of the Praesidium of the European Convention, in the light of the draft-
85
Case C-184/99, Rudy Grzelcyck v. Centre public d’aide sociale ing adjustments made to the text of the Charter by that Convention (no-
d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193; Case C-85/96, tably to Articles 51 and 52) and of further developments of Union law.
Martinez-Sala [1998] ECR I-2681; Case C-274/96, Bickel and Franz However, “Although they do not as such have the status of law, they
[1998] ECR I-7637. See further de Waele, H. ‘EU Citizenship: Revisit- are a valuable tool of interpretation intended to clarify the provisions
ing its Meaning, Place and Potential’ European Journal of Migration of the Charter.” It is also significant that Article 7 of the Charter states:
and Law 12 (2010) 319-336. “Everyone has the right to respect for his or her private and family life,
86
See Report from the Commission on the Implementation of Council home and communications” which effectively means that the case law
Directive 93.13.EEC of 5 April 1993 on Unfair Terms in Consumer on housing and home under Article 8 ECHR will be relevant in the
Contracts, COM (2000) 248 final (Apr. 27, 2000). interpretation of the Charter obligations.
Num. 7, january-june 2012, Page. 15 - LandAS | International Journal of Land Law & Agricultural Science
Union law. They shall therefore respect the rights, ob- rights, but the nature of its work is defined by the poli-
serve the principles and promote the application the- tical agenda of the EU institutions and States through
reof in accordance with their respective powers and thematic areas. This limits the types of rights it can
respecting the limits of the powers of the Union as work on, and in its plan for 2007-2012 it has exclu-
conferred on it in the Treaties. ded analysis of social rights (which includes housing
rights) although there is some work being carried out
Article 51(2) points out that the Charter does not ex- on discrimination which marginally overlaps with
tend the field of application of Union law beyond the housing rights.92
powers of the Union or establish any new power or
task for the Union, or modify powers and tasks as de- EU and housing adequacy – policy actions
fined in the Treaties. The Charter, which now has the
same legal value as the Treaties, does not extend the Although not necessarily directly linked to the issue
field of application of Union law beyond the powers of housing rights, the notion of a common standard
of the Union or establish any new power or task for of housing adequacy across the EU has been raised
the Union, or modify powers and tasks as defined in in social policy proposals since 2000. In December
the Treaties. 2001, the Laeken European Council adopted a report
of the Social Protection Committee with 18 indica-
While there is not a specific right to housing in the tors of social exclusion, but housing need and home-
Charter, Article 34(3) on social security and social as- lessness were not among them.93 The Social Protection
sistance states: Committee, Indicators Sub-Group which was charged
with developing indicators to be adopted by the States
In order to combat social exclusion and poverty, the in their national action plans, accepted in 2001 that in
Union recognises and respects the right to social and relation to a common standard of housing adequacy:
housing assistance so as to ensure a decent existence
for all those who lack sufficient resources, in accor- Our discussion revealed that it would not be possi-
dance with the rules laid down by Union law and na- ble or desirable to agree an EU wide definition of a
tional laws and practices.90 minimum housing standard. We considered that na-
tional conditions (as determined by culture, climate
The Explanations relating to the Charter of Fun- etc.) were too disparate and that national definitions
damental Rights state that paragraph 34(3) of the of a minimum acceptable standard should be used.94
Charter “draws on Article 13 of the European Social
Charter and Articles 30 and 31 of the revised Social The Fédération Européenne des Associations Natio-
Charter and point 10 of the Community Charter. The nales Travaillant avec les Sans-Abri (FEANTSA) has
Union must respect it in the context of policies based developed a set of indicators of homelessness and ina-
on Article 153 of the Treaty on the Functioning of the dequate housing which identifies three domains cons-
European Union.” tituting a home, the absence of any of which can be
taken to delineate homelessness. Having a home can
Thus, the interpretation of Article 34(3) will draw the Agency see Kenna. P. (2005) Housing Rights and Human Rights,
on the jurisprudence of the European Committee of Brussels; FEANTSA.
92
See Decision 2008/203/EC, implementing Regulation (EC) 168/2007
Social Rights outlined above. as regards the adoption of a Multi-annual Framework for the European
Union Agency for Fundamental Rights for 2007-2010, OJ L 63/14,
The EU Agency for Fundamental Rights, establis- 2008. Article 2 sets out the Thematic areas: (a) racism, xenophobia and
related intolerance; (b) discrimination based on sex, race or ethnic ori-
hed in 2007,91 might be expected to develop the links gin, religion or belief, disability, age or sexual orientation and against
between these two sets of jurisprudence on housing persons belonging to minorities and any combination of these grounds
(multiple discrimination); (c) compensation of victims; (d) the rights of
90
Charter of Fundamental Rights of the European Union, Art. 34(3) the child, including the protection of children; (e) asylum, immigration
OJ 2010/C 83/02. and integration of migrants; (f) visa and border control; (g) participation
91
See Regulation 168/2007/EC establishing a European Union Agen- of the citizens of the Union in the Union’s democratic functioning; (h)
cy for Fundamental Rights, OJ L53/1, 2007. Article 2(1) states that the information society and, in particular, respect for private life and pro-
objective of the Agency is to provide the Union institutions and Mem- tection of personal data; (i) access to efficient and independent justice.
ber States when they are implementing Union law with assistance and 93
See Social Protection Committee, Indicators Sub-Group. October
expertise relating to fundamental rights in order to support them when 2001. See website: http://europa.eu.int/comm/employment_social/
they take measures or formulate courses of action within their respec- news/2002/jan/report_ind_en.pdf.
tive spheres of competence to fully respect fundamental rights. Article 94
Social Protection Committee, Indicators Sub-Group. October 2001,
4(2) states that the Agency can only provide opinions when requested paras. 56-58. See also Atkinson, A.B. et al. (2002) Social Indicators The
by the Commission and cannot make an assessment of the compliance EU and Social Inclusion, Oxford, OUP; Marlier, F. et al. (2007) The EU
of States actions in a court. For a critique of the limited competence of and Social Inclusion: Facing the challenges, Bristol: The Policy Press.
Num. 7, january-june 2012, Page. 16 - LandAS | International Journal of Land Law & Agricultural Science
be understood as: having a decent dwelling (or space)
adequate to meet the needs of the person and his or
her family (physical domain); being able to maintain
privacy and enjoy social relations (social domain)
and having exclusive possession, security of occupa-
tion and legal title (legal domain).95 The FEANTSA
European Typology of Homelessness and Housing
Exclusion (ETHOS) distinguishes different types of
inadequate housing:
rooflessness (without a shelter of any kind, sleeping
rough)
houselessness (with a place to sleep but temporary
in institutions or shelter)
living in insecure housing (threatened with severe
exclusion due to insecure tenancies, eviction, domes-
tic violence)
living in inadequate housing (in caravans on ille-
gal campsites, in unfit housing, in extreme overcrow-
ding).
In 2008, the EU adopted a Regulation establishing
common rules for the decennial provision of compre-
hensive data on population and housing, establishing
a common set of housing topics to be collated by
Member States.96 These included data on occupan-
cy status of conventional dwellings, number of oc-
cupants, useful floor space and/or number of rooms
of housing units, dwellings by type of building, dwe-
llings by period of construction, water supply system,
toilet facilities, bathing facilities, type of heating,97
The EU Commission data on overcrowding showed
that in 2007, some 17% of the EU population lived
in overcrowded households. Among Member States,
the highest percentages of overcrowded households
were registered in Latvia (59%), Romania (54%), Li-
thuania and Poland (both 52%). By contrast, Cyprus
and the Netherlands (both 2%) recorded the lowest
percentages. 98 cy determined by international human rights monito-
ring bodies will exert a new set of influences on legal
95
See Edgar et al. (2007) Measurement of Homelessness at European change in European housing, land and planning law.
level. Brussels: European Commission. Available at: http://ec.europa.
eu/employment_social/spsi/docs/social_inclusion/2007/study_home-
lessness_en.pdf
96
Regulation EC 763/2008 13. 8. 2008, OJ l 218/14. See also Com-
mission Regulation (EC) No 315/2006 of 22 February 2006 implement-
ing 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.
97
Regulation EC 763/2008 13. 8. 2008, OJ l 218/14.
98
See European Commission - http://epp.eurostat.ec.europa.eu/sta-
tistics_explained/index.php/Housing_statistics. The information pre-
sented in this section is extracted from micro-data from EU statistics on
income and living conditions (EU-SILC) and refers to 2007, when EU-
SILC covered all EU Member States plus Norway and Iceland. There
was no data yet for Bulgaria. See European Commission, Research
Note no. 1, Housing and Social Inclusion by Erhan Őzdemir and Terry
Num. 7, january-june 2012, Page. 17 - LandAS | International Journal of Land Law & Agricultural Science
Conclusion
Housing is a key element of State actions and the
economies of European countries. Market values and
norms associated owner occupation tied to enormous
mortgage lending are being increasingly questioned
by housing policy makers. States are increasingly
adopting housing policy goals based on international
human rights. The inspiration for these objectives can
be traced to States acceptance of international hu-
man rights instruments which relate to housing. In-
deed, across Europe the 47 countries of the Council
of Europe have all ratified the International Covenant
on Economic, Social and Cultural Rights, and most
have adopted the European Social Charter or Revi-
sed Charter. Within these instruments housing rights
are being defined and applied by international moni-
toring bodies. At EU level, some 26 States have rati-
fied the Treaty of Lisbon, with its Charter of Funda-
mental Rights now having the same legal value as the
Treaties. The Charter contains a “right to social and
housing assistance,” thus integrating a right to housing
assistance into EU law, regulation and policy. Since
EU law is binding on the institutions of the Union,
and Member States when they are implementing EU
law, these housing rights obligations will now apply
alongside any national obligations and standards. De-
fining housing “adequacy” will be a key element of
these legal obligations on the EU and Member States,
and in this context there is an interactive discourse
between the jurisprudence of the Council of Europe
and the European Court of Justice. This is a new and
developing area of law, which applies to State housing
activities and obligations, and which has the potential
to eventually create a harmonized set of housing stan-
dards across Europe.
EU monitoring and definitions of housing adequa-
Ward. Available at: http://ec.europa.eu/social/keyDocuments.jsp?type=
1&policyArea=0&subCategory=0&country=0&year=
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