• No results found

Western Housing Crisis: Unaffordable Housing and Homelessness in Developed States

N/A
N/A
Protected

Academic year: 2021

Share "Western Housing Crisis: Unaffordable Housing and Homelessness in Developed States"

Copied!
48
0
0

Bezig met laden.... (Bekijk nu de volledige tekst)

Hele tekst

(1)

Western Housing Crisis: Unaffordable Housing and Homelessness in

Developed States

Zana Islami

Master Thesis

International and European Law: Public International Law Supervisor: Professor. T. Staal

(2)

“Homelessness is perhaps the most visible and most severe symptom of the lack

of respect for the right to adequate housing.” – Miloon Kothari

1

1 HRC, ‘Report of the Special Rapporteur on adequate housing a component of the right to an adequate

(3)

Table of Contents

Abstract ...4

List of Abbreviations ...5

Introduction ...6

Chapter one: Threshold for the Economic, Social and Cultural Rights ... 10

1.1. Introduction ... 10

1.2. Interpretation of the Right to Adequate Housing ... 10

1.3. Homelessness and its relation to other human rights ... 13

1.4. Interim conclusion ... 15

Chapter two: Responsibility of the State: Case Study of The Netherlands ... 17

2.1. Introduction ... 17

2.2. Contemporary situation in The Netherlands ... 17

2.3. Responsibility of the State ... 20

2.4. Obligation to prevent homelessness ... 23

2.5. Interim conclusion ... 27

Chapter three: Responsibility of private equity firms: Case Study Blackstone ... 28

3.1. Introduction ... 28

3.2. Blackstone’s conducts ... 28

3.3. Relevance international human rights law to corporations ... 31

3.4. Interim conclusion ... 34

Chapter four: Concretization of the right to adequate housing ... 35

Conclusion ... 37

Bibliography ... 39

(4)

Abstract

The aim of this research is to address the contemporary housing situation in Western States and the obligations of those States and the private equity firms who operate within their borders. The Western Housing crisis seems to continue and individuals who all have the right to adequate housing, have a hard time finding an affordable house. Therefore, through this thesis, the question if we can currently speak of a meaningful right to adequate housing, will be answered.

For this purpose, the human rights framework of the Economic, Social and Cultural rights is analyzed. In particular, the International Covenant on Economic, Social and Cultural Rights and the general comments of the Committee on Economic, Social and Cultural Rights are used to study that the right to adequate housing includes much more than just having a shelter above your head. Different journals and books have also contributed to the answer of this question. In the second chapter it has been concluded that the Netherlands currently faces a housing shortage of 331.000 houses and 39.300 homeless people. For this question the statics of the Netherlands have been of great help and also several newspapers that contained, to a great extent, information about the current situation in the Netherlands. Furthermore, through sources such as the Committee on Economic, Social and Cultural Rights and the Office of the High Commissioner of Human Rights this chapter revealed that States have the obligation, under the ICESCR, to respect, fulfil and protect the right to adequate housing and should aim at a full progressive realization towards this right.

The third chapter consists an answer on the question what the actual obligations of multinational corporations are under the international human rights law framework. From this chapter it can be deduced that there does not yet exist a hard law that obligates multinational corporations to respect human rights and that only States bear responsibility for the violations of human rights by those corporations.

Chapter four suggests that to concretize the right to adequate housing the right to life has to be taken together with the right to adequate housing. Only then can the right to adequate housing be more meaningful. How much worse the housing situation has to get to be able to speak of a violation of the right to housing cannot be said, since the official authorities like the United Nations and the Committees have not spoken up about that.

On the basis of the answers of all the four different questions it can be concluded that as long as the affordability of houses, the legal security of tenure and the non-discrimination principle are not being respected by States as they let corporations act freely on the rental market, we cannot speak of a meaningful right to adequate housing. In order to do so, States have to work towards a progressive realization of this right and should not retrogress. The human right to adequate housing could play a meaningful role when it is taken together with the right to life.

(5)

List of Abbreviations

CBS Statistics Bureau of the Netherlands

CESCR Committee on Economic, Social and Cultural Rights

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

HRC Human Rights Committee

OHCHR UN Office of the High Commissioner for Human Rights

UDHR Universal Declaration of Human Rights

UN United Nations

UNGP Guiding Principles on Business and Human Rights

(6)

Introduction

The right to adequate housing is an inherent human right to all human beings that is of great significance.2 Having a safe and secure place to live in peace and dignity is the cornerstone for

a dignified life.3 Without the meaningful right of adequate housing, individuals may experience

difficulties in areas as their work, income, education and health.4 Rising housing prices, long

waiting times for social housing and lack of middle rentals in Western States are concerns that are getting attention extensively. The Special Rapporteur on adequate housing, Leilani Farha, has been trying to draw attention to this topic for the past six years.5 According to her, the

seriousness of this Western housing crisis lies in the fact that is caused by economic growth and expansion instead of a decline in resources, what normally causes a crisis.6

Lailani Farha has presented a report on the ‘Financialization of Housing’ and its impact on human rights. According to the her, housing is in in the middle of an economic transformation led by global investors, who are not granting much attention to the core of this human right, in lieu of, being a fundamental human right that is of great importance to all individuals.7

Worldwide there are living more than a billion people in inadequate housing conditions or have become even homeless due to millions of foreclosures, evictions and displacements.8 The

housings are being privatized by investment funds, which leads to forced evictions and homelessness, while the ‘luxury’ apartments stay empty.9 Financial markets and corporations

around the world invest in housing and treat it as a commodity for their own interests and to increase their own wealth.10 An example of one those corporations is one of the world’s largest

corporate residential landlords: Blackstone Group (hereinafter ‘Blackstone’).

2 United Nations, ‘What are human rights?’ via

<https://www.un.org/en/sections/issues-depth/human-rights/#:~:text=Human%20rights%20are%20rights%20inherent,and%20education%2C%20and%20many%20m ore.>.; J. de Vries, ‘Dakloosheid oplossen? Niet zonder een integraal woonbeleid!’ (2019), p. 390.

3 Ibid; CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991). 4 Ibid.

5 United Nations, ‘Global housing crisis results in mass human rights violations’ via

<https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25662&LangID=E>.

6 Ibid. 7 Ibid., p. 3.

8 S. Trommel, ‘EP wil actie tegen woningnood’, Binnenlandsbestuur, via

<https://www.binnenlandsbestuur.nl/ruimte-en-milieu/nieuws/ep-wil-actie-tegen-woningnood.12047960.lynkx>.

9 European Action Coalition, ‘Hand Off Our Homes: The Financialization of Housing in Europe’, p. 3. 10 Ibid.

(7)

On March 22 2019, Lailani Farha, and the Chair-Rapporteur of the Working Group on the issue of human rights and transnational corporations and other business enterprises, Surya Deva, have written a letter to Blackstone regarding their concerns about the developments of Blackstone which have resulted in major consequences for individuals.11 They argue that, after the financial

crisis of 2008, Blackstone started to buy up a remarkable number of affordable properties, upgraded those, and turned them to rental accommodations with a high rise of rent, which has made it practically impossible for the tenants to keep up with their rents.12 The consequence is

that, once the smallest infraction occurs, tenants are being evicted. These evictions are leading to homelessness, which can be a violation of the right to adequate housing.13 Under

international human rights law, we can define homelessness as the absence of the material aspect of minimally adequate housing and of the social aspect of a secure place to establish a family or social relationships and participate in community life.14 Besides, the homeless people

also endure systemic discrimination and social exclusion, given their social identity.15 Having

said that, the homeless people occupy a center stage in the social transformation that is essential for the realization of the right to an adequate housing.16 Homelessness in the Western States is

an agonizing and increasing problem which calls for action and the respect of the right to adequate housing from States. However, it is not evident that international law, in particular the right to adequate housing, can actually make a difference, because economic, social and cultural (hereinafter ‘ESC’) rights do not traditionally have a record of being useful to achieve concrete results.

Therefore, this thesis will answer the following question:

Can the human right to housing play a meaningful role in addressing the deteriorating housing conditions in Western States after the financial crisis?

To answer this question, this thesis will address the meaning of the human right to adequate housing and the obligations that two of the mayor players in Western housing situations, the State and the private equity firms, have regarding this right. Two case studies will be used as a

11 S. Deva & L. Farha’s letter to Blackstone (22 March 2019) via

<https://www.ohchr.org/Documents/Issues/Housing/Financialization/OL_OTH_17_2019.pdf>, p. 1.

12 Ibid., p. 2. 13 Ibid., p. 4 & 6.

14 HRC, ‘Report of the Special Rapporteur on adequate housing a component of the right to an adequate

standard of living, and on the right to non-discrimination in this context’, A/HRC/31/51, par. 17(a).

15 Ibid., par. 17(b) 16 Ibid., par. 17(c).

(8)

method to research this question. First, in analyzing the responsibility of Western states, the Dutch housing situation will be used as an example, because of their current housing crisis that is only deteriorating. Second, as regards the responsibility of the private equity firms, the conducts and the obligations of the private equity firm Blackstone will be studied, since they have recently been addressed by the United Nations (hereinafter ‘UN’).

In the first chapter, the right to adequate housing will be analyzed in depth and it will become clear what the right to adequate housing actually means. After having put forward what the threshold of the right to adequate housing is, this thesis addresses other human rights, that are related to the right to adequate housing, and clarify why those are being violated too if the right to adequate housing is not respected.

Chapter two will analyze the human rights responsibility of the State. The case study on the Netherlands will present how the housing in the Netherlands has worsened over the last few years and what the obligations of the Netherlands are, in order to prevent homelessness. It will conclude that States have the obligation respect, fulfil and protect the right to adequate housing and, that they should aim at a full progressive realization towards this right.

Chapter three is about the human rights responsibility of the private equity firms. Via a case study on the private equity firm Blackstone, their role and responsibility under international human rights will be discussed. Furthermore, the horizontal obligations and the way in which the impact of the international human rights in the national legal order is relevant to the obligations of those corporations will be examined as well. This chapter will conclude that Blackstone is complying with the law and that they do not have direct obligations to respect human rights. However, it must be kept in mind that it is good for their reputation to respect human rights and that one day the UNGPs that are now soft law, may become hard law.

At the moment, only States have a direct obligation to respect human rights. Nevertheless, although States are working towards the progressive realization of the right to adequate housing, this is often not yet effective and promptly enough. On top of this, multinational corporations have no direct obligations at all. That leaves the individuals in the middle if their rights are not being respected.

(9)

For this reason, the last chapter will be looking into finding an answer to the question of how the right to housing should be made concrete in order to prevent the worst forms of housing shortage from occurring to the courts. This chapter reveals that to strengthen the right to adequate housing, it must be demonstrated that the infringement of this right, may also infringe the cultural and political (hereinafter ‘CP’) rights, which can be invoked before a court.

(10)

Chapter one: Threshold for the Economic, Social and Cultural Rights

1.1. Introduction

The right to housing was recognized a long time ago in the Universal Declaration of Human Rights (hereinafter ‘UDHR’), which was introduced in 1948, as the first international human rights instrument.17 Subsequently, this right has also been included in the International

Covenant on Economic, Social and Cultural Rights (hereinafter ‘ICESCR’), which has been ratified by 170 States thus far, and gives life to the right to adequate housing in Article 11 of this Covenant. States who are a party to this Convention have recognized “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”.18 The right to housing

is one of the most important rights in the ICESCR, because it is closely linked to a lot of other human rights.19 According to the UN Office of the High Commissioner for Human Rights

(hereinafter ‘OHCHR’), who is tasked by the UN to mainstream human rights worldwide, the right to housing should not be interpreted in a narrow or restrictive way, and must be read as the right to adequate housing, and not the right to housing alone.20 Thus, this right means much

more than just having four walls and a roof above your head.

This chapter consists the interpretation of the right to adequate housing and will answer to what each and every person is entitled to by virtue of this right. Additionally, the other human rights that are linked to the right of housing will also be covered in this chapter.

1.2. Interpretation of the Right to Adequate Housing

To begin with, it is important to understand the distinction between the CP rights and the ESC rights on the other hand. Article 2 of the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’) gives States the obligation to ‘respect and to ensure to all individuals within its territory and jurisdiction the rights recognized in this Covenant’.21 While on the

contrary, Article 2 of the ICESCR gives States the obligation to ‘undertake steps, individually and through international assistance and co-operation, to the maximum of its available

17 Article 25 UDHR. 18 Article 11(1) ICESCR.

19 United Nations, ‘What we do’, via <https://www.ohchr.org/EN/AboutUs/Pages/WhatWeDo.aspx>.; I. Leijten

(2017), ‘Core Socio-Economic Rights and the European Court of Human Rights’, Cambridge University Press p. 185.

20 Ibid.

(11)

resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant’.22 The wording in the ICCPR is undeniably more straight forwarded and

pressing, while the wording in the ICESCR encourages a more gradual and progressive action of States which also gives them a great margin of appreciation.23 Therefore, it can be concluded

that the States obligations under the ICESCR are rather obligations of results than obligations of conduct.24 However, Article 11(2) ICESCR is an obligation of conduct that does envisage a

specific conduct from the State to implement the right. Therefore, according to the Committee on Economic, Social and Cultural Rights (hereinafter ‘CESCR’), a body that consists out of 18 independent experts that monitors the implementation of the ICESCR and assists States with their general comments to a further implementation of the Covenant, the obligations are blurred and often overlap with each other.25 It is complex to classify the obligations and take them

apart.

In general comment no. 4 it is put forward that the right to adequate housing must meet the minimum of seven criteria, which are fundamental for the constitution of ‘adequate housing’ within the context of the Covenant.26 Firstly, all persons should have a certain legal security of

tenure which protects them against forced eviction, harassment and other threats.27 This does

not mean that eviction should be prohibited, but rather that tenants should have an adequate notice before evection, the right to a legal process and, legal aid in case of eviction.28 The

European Court of Human Rights (hereinafter ‘ECtHR’) has ruled that before carrying out the eviction, States must pay attention to the vulnerability of the tenants and to the possible risk of becoming homeless due to the eviction.29 The factor of legal security of tenure is the cornerstone

of the right to housing.30 Having legal security of tenure makes the housing more habitable,

because it gives the individuals greater security to live and in invest in their homes.31 The lack

of security of tenure causes insecure tenure, and affects the marginalized and disadvantaged

22 Article 2(1) ICESCR.

23 Amnesty International, ‘Civil and Political Rights vs Economic, Social and Political Rights’ via

<https://www.linkedin.com/pulse/civil-political-rights-vs-economic-social-amnesty>; N. Moons, ‘The right to housing in law and society’, p. 159.

24 J. Daci, ‘Justiciability of Economic, Social and Cultural Rights’ (2014), issue 9, p.55 – 68, p. 65. 25 United Nations, ‘Committee on Economic, Social and Cultural Rights: Working Methods’ via

<https://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx>; M. Magdalena Sepúlveda, ‘The Nature of the Obligations Under the ICESCR’, p. 191 – 192.

26 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 8. 27 Ibid., par. 8 (a).

28 S. Segal, ‘The International Human Right to Adequate Housing: An Economic Approach’, p. 493. 29 ECtHR, ‘Winterstein and Others v. France’ no. 27301/07, par. 159 – 161.

30 J. Hohmann, ‘The Right to Housing: Law, Concepts, Possibilities’, p. 21. 31 Amnesty International, ‘The Right to Adequate Housing’, p. 19.

(12)

groups for the largest part.32 Thus, forced evictions are one of the main threats to the legal

insecurity of tenure.

Secondly, for a housing to be adequate it must have safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.33 These are examples of facilities that contribute to

health, security, comfort and nutrition and are the minimum that has to be met.34 The third

factor is the affordability of the housing, which sets out the rule that the financial costs of the housing may not be of such an amount that the attainment and satisfaction of other basic needs and human rights is threatened.35 The physical safety of the individuals should be guaranteed

as well and forms the fourth factor that is constitutional for an adequate housing; the habitability. This includes adequate space of the housing which offers protection against the cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors.36

The principle of habitability is intimately linked to health and safety standards, given the fact that the high rates of morbidity and mortality are connected with poor housing.37

Another factor is that the housing needs to be accessible to disadvantaged groups, such as the aged, children or those with physical disabilities.38 The CESCR states that the disadvantaged

groups ‘should be ensured some degree of priority consideration in the housing sphere’.39 The

accessibility is also associated to the non-discrimination rule under Article 2(2) and, the sex equality under Article 3 of the ICESCR. Thus, accessibility to adequate housing should be based on non-discrimination and has to be accessible to all, irrelevant of age, health condition, origin or gender. Furthermore, the individuals must have access to employment options, health-care services, schools, childhealth-care centers and other social facilities.40 A house could be spacious,

safe and well-appointed, but if it is constructed where the inhabitants are isolated from livelihood, schooling opportunities, health services or their traditional community ties, which leads poor households to excessive demands upon their budgets, the housing could be

32 Amnesty International, ‘The Right to Adequate Housing’, p. 17.

33 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 8 (b). 34 J. Hohmann, ‘The Right to Housing: Law, Concepts, Possibilities’, p. 26.

35 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 8 (c). 36 Ibid., par. 8 (d).

37 B. Thiele, ‘The Human Right to Adequate Housing: A tool for Promoting and Protecting Individual and

Community Health’, p. 712.

38 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 8 (e). 39 Ibid.

(13)

inadequate.41 Finally, the housing must enable the expression of cultural identity and diversity

of housing.42 The requirement of cultural adequacy includes the encouragement of various parts

of the society to connect with one another.43 In order for this, different social, ethnic and cultural

origins should live in the same place, instead of separating particular cultures into different sections.44

While the above factors clearly indicate which criteria a housing must follow in order to be adequate, the OHCHR has also clarified several common misconceptions related to the right to adequate housing.45 For example, the protection against forced eviction does not mean that

development or modernization projects that entail displacement are prohibited.46 However, the

right to adequate housing does certainly impose conditions and procedural limits to those projects.47 Another misconception is that the right to adequate housing includes also the right

to property. In fact the right to adequate housing is not about the right to own property, but about the guarantee for everyone to have a safe and secure place to live in peace and dignity.48

Also, the right to adequate housing is not the same as the right to land.49 Even though the right

to land is one of the elements to realize the right to adequate housing by accessing land, it is not yet recognized as a self-standing right in international human rights law.50 Lastly, it is often

thought that the right to adequate housing means merely the physical structure of the house that has to be adequate.51 However, this is incorrect, considering the above clarification of the

minimum criteria which a house must meet in order for it to be adequate.

1.3. Homelessness and its relation to other human rights

In its general comment the CESCR outlines forced evictions ‘as the permanent or temporary removal against the will of individuals, families from the home and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’.52

41 J. Hohmann, ‘The Right to Housing: Law, Concepts, Possibilities’, p. 23; CESCR, General Comment No 4,

The right to adequate housing (Art 11(1)) (1991), par. 8 (f).

42 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 8 (g).

43 Commissioner for Human Rights, ‘Recommendation on the implementation of the right to housing’ (2009), p.

11.

44 Ibid.

45 OHCHR, ‘The Right to Adequate Housing’, Fact Sheet No. 21/Rev.1, p. 6. 46 Ibid.

47 Ibid. 48 Ibid., p. 8. 49 Ibid. 50 Ibid.

51 OHCHR, ‘The Right to Adequate Housing’, Fact Sheet No. 21/Rev.1, p. 8.

(14)

Therefore, any removal of people from their home or land, without prior notice of the eviction, without access to legal remedy, and with no compensation or a rehabilitation can be considered a forced eviction.53 Above it was mentioned that the protection against forced evictions signifies

that conditions and procedural limits could be imposed on those forced evictions. Hence, forced evictions may not be discriminatory, the use of force should be minimalized or avoided, forced evictions have to be carried out according to the relevant provisions of international human rights law, and lastly, in any condition, forced evictions cannot be a punitive measure.54 Thus,

if the evictions are proportional and reasonable, and are above all in accordance with the law, they can be carried out. Nevertheless, according to the CESCR, in any case, forced eviction may not affect other human rights of the individual, or result into homelessness.55

The homelessness is not a violation of the right to adequate housing solely, but many more human rights are being violated in connection to this. When individuals are being evicted from their houses they do not only lose the roof that they once had above their head, but they are being deprived of many more human rights.56 Being homeless has an impact on the right to

life, the right to private life, family life and his home, the right to health, the right to personal safety, the right to privacy, the right to an education, the right to work and the right to non-discrimination. Evictions that result into homelessness could even lead to an inhuman and degrading treatment.57 This demonstrates that human rights are interrelated, indivisible and

interdependent.

Article 6 of the ICCPR establishes the right of every human being to an inherent life. The right to life is a fundamental right, and just like the right to an adequate housing, it should not be interpreted in a narrow and restrictive manner.58 The right to life is highly related to the right

to a secure place to live.59 In this regard, without an adequate housing and a secure place to live

in dignity, in a safe environment, that is free from violence, the right to life cannot be

53 COHRE, ‘Forced Evictions: Violations of Human Rights 2007-2008’, p. 13.

54 CESCR, General Comment No 7, The right to adequate housing (Art 11(1)): forced evictions (1997), par. 10 –

13.

55 Ibid., par. 16. 56 Ibid., par. 4.

57 United Nations, ‘Forced Evictions’ via

<https://www.ohchr.org/EN/Issues/Housing/Pages/ForcedEvictions.aspx>.

58 CCPR, General Comment No 6, The right to life (Art 6) (1982), par. 5. 59 Ibid., par. 27.

(15)

respected.60 Around one third of the deaths globally are due to the inadequate housing.61 The

effects on life and the health on people as a result of their living conditions occurs, are also visible in Western States.62 Article 8 of the European Convention of Human Rights (hereinafter

‘ECHR’) guarantees the private life, family life, his home and his correspondence. In 2008, the ECtHR ruled that ‘the loss of one’s home is a most extreme form of interference with the right to respect for the home’.63 The lack of a safe living environment could bring homeless people

in vulnerable situation where they are being exposed to crime and personal attacks.64

Also, it goes without saying that the homeless people have no privacy at all. Their whole life is visible for others, and privacy is nearly impossible.65 Without a safe home, it becomes difficult

for individuals to go to school or work.66 As mentioned, the homeless people endure systemic

discrimination and social exclusion, given their social identity. Their identity could also lead to discrimination in education and employment.67 Article 7 of the ICCPR prohibits torture or the

cruel, inhuman and degrading treatment or punishment of persons. The Human Rights Committee (hereinafter ‘HRC’) has put forward that the aim of this provision is the protection of the dignity and the physical and mental integrity of every individual.68 Criminalizing

homeless people for their everyday activities, such as bathing, sleeping, sitting in public areas or storing their belongings in public may violate this right.69 It is therefore, that the violation of

the right to an adequate housing goes beyond the violation of that human right only, and such a violation impacts other human rights too.

1.4. Interim conclusion

The right to an adequate housing includes much more than just having a shelter. It has been made clear that the right to housing is not narrowed to the physical structure of the house that has to be adequate. It must have a certain legal security, the housing should have availability of

60 CCPR, General Comment No 6, The right to life (Art 6) (1982), par. 27.

61 A-E, Birn, ‘Addressing the societal determinants of health: the key global health ethics imperative of our

times’ (Cambridge University Press), p. 43.

62 Special Rapporteur Ms. Leilani Farha, ‘Presentation to the Human Rights Committee: The Right to Life & the

Right to Housing’, p. 3.

63 ECtHR, Case of McCann v. The United Kingdom 19009/09, par. 50.

64 Australian Human Rights Commission, ‘Homelessness is a Human Rights Issue’ (2008), p. 8. 65 Ibid., p. 9.

66 Ibid. 67 Ibid., p. 11.

68 CCPR, General Comment No 20, Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or

Punishment (Art 7) (1992), par. 2.

69 HRC, Concluding observations on the fourth report of the United States of America (23 April 2014), par. 19,

(16)

services, materials and facilities, it must be affordable, the housing must be habitable and accessible to those entitled to it, the location of it should provide access to social activities and lastly, the housing must be cultural adequate. Furthermore, the misconceptions that exist regarding to the right to housing has also been clarified in this chapter. It has been stated that forced evictions might be lawful, but they may never affect other human rights of the individual or result into homelessness. The forced eviction that leads to homelessness does not only violate the human right to adequate housing, but also many other human rights that have been discussed in this chapter. The great impact on so many human rights demonstrates the seriousness of the issue of the financialization of houses.

(17)

Chapter two: Responsibility of the State: Case Study of The Netherlands

2.1. Introduction

In the previous chapter the human right to adequate housing has been clarified. This chapter contains a case study on the Netherlands and examines their responsibility in regard to this human right. The Netherlands has ratified the ICESCR on 11 December 1978.70 Every State

party to the ICESCR has to fulfil the obligations it has under this Convention. Firstly, the contemporary situation in the Netherlands will be outlined. Hereafter, the responsibility of the State will be reviewed. The responsibility of the State will be used to examine the obligations of the Netherlands to prevent homelessness. Finally, it will be disclosed that the Netherlands are not complying with all of their obligations. This chapter will set forth in what regard they are not acting according to the law.

2.2. Contemporary situation in The Netherlands

According to the Statistics bureau of the Netherlands (hereinafter ‘CBS’) the percentage of homeless people has increased by 17,7 percent from 2009 till 2018.71 When talking about the

homeless, one might not think directly about those who do have a job but do not have a house. Nevertheless, in the last years, there has been a rise in economic homelessness.72 The economic

homeless people can be described as the individuals with a job that, no longer can pay the rent of their houses, because of the excessive costs.73 On top of that they have to deal with the

difficulty of finding another affordable housing that is within their resources.74 Precise figures

on this problem are missing, since some of the economic homelessness do not report their situation to an authority.75 They stay with persons who could get in trouble for having them, or

at places where they are not allowed to live.76 According to the research of Platform31, a

70 United Nations Treaty Collection, International Covenant on Economic, Social and Cultural Rights New York,

16 December 1966, status as at 15-04-2020.

71 CBS, ‘Aantal daklozen sinds 2009 meer dan verdubbeld’ (23 August 2019) via

<https://www.cbs.nl/nl-nl/nieuws/2019/34/aantal-daklozen-sinds-2009-meer-dan-verdubbeld>.

72 K. de Regt, ‘Aantal Nederlanders met baan maar zonder huis blijft groeien’ RTLnieuws (13 July 2019) via

<https://www.rtlnieuws.nl/onderzoek/artikel/4775611/economisch-dakloos-thuisloos-werkenden-zonder-huis-opvang>.

73 M. Bolwijn, ‘Elk dakloos gezin dat niet tussen zwervers hoeft te slapen is er weer één’ De Volkskrant (Ede, 4

February 2020) via <https://www.volkskrant.nl/columns-opinie/elk-dakloos-gezin-dat-niet-tussen-zwervers-hoeft-te-slapen-is-er-weer-een~bf88aec9/>.

74 Ibid.

75 K. de Regt, ‘Aantal Nederlanders met baan maar zonder huis blijft groeien’ RTLnieuws (13 July 2019) via

<https://www.rtlnieuws.nl/onderzoek/artikel/4775611/economisch-dakloos-thuisloos-werkenden-zonder-huis-opvang>.

(18)

research institution that specializes in this field, there are, on top of the homeless people, between 55,000 and 80,000 people estimated to be illegally residing on a campsite or holiday park.77 The 31-year-old Dutch Mabel is one those persons.78 She has no place to sleep and is

not able to find a housing that is within her resources. She started off by living with her parents for two years and after hopping from couch to couch for another three years she is glad she has her own ‘place’ now. That place is a small shed on a campsite.79 Having a place for her own

and not worrying if, and where she can stay the night is what matters to her. Yet, the situation is far from over. She describes it as a very uncertain situation where she does not have a foundation where she can build upon.80 The 31-year-old Donovan, with a regular job has lived

in a shelter hotel.81 He did not feel at home in a shelter hotel where drug addicts and people

with psychiatric problems stayed. Right before he was able to stay with someone who a had a spare room for him, he had a mental breakdown which he hopes he never has to experience again.82

At the beginning of 2020, the housing shortage stood at 315.000 homes.83 In the Netherlands,

private parties in the liberalized sector can increase the rents indefinitely.84 According to a

Dutch political party, landlords take advantage of the housing shortage and ask for usurious rents that people can no longer afford to pay.85 They emphasize that: ‘housing is a fundamental

right, which the government must protect, and that the government is currently not doing much about it’.86 Despite the fact that according to the law, landlords must keep their rent increases

77 J. van der Velden, ‘De nieuwe woningnood’, Platform31 (4 December 2018) via

<https://www.platform31.nl/uploads/media_item/media_item/117/71/2_PPT_Deelsessie_De_nieuwe_woningno od_-_JeroenV_-_Wooncongres_2018-1544702718.pdf>.

78 M. Meester, ‘Wel een baan, maar geen huis: ‘Het is elke dag oorlog in me hoofd’ RTLnieuws (13 July 2019)

via <https://www.rtlnieuws.nl/nieuws/artikel/4742141/economisch-dakloos-amsterdam-zelfredzaam-regenboog-groep-vastgoedeigenaren>.

79 Ibid. 80 Ibid.

81 NOS, ‘Wel een baan, maar geen woning: alarm om groei nieuwe groep daklozen’ NOS (21 December 2019)

via < https://nos.nl/artikel/2315745-wel-een-baan-maar-geen-woning-alarm-om-groei-nieuwe-groep-daklozen.html>.

82 Ibid.

83 Corporatiemarkt, ‘Housing shortage in the Netherlands increased to 315,000 homes’, Corporatiemarkt (10

February 2020) via <https://www.corporatiemarkt.com/en/news/housing-shortage-in-the-netherlands-increased-to-315,000-homes?news_id=521>.

84 Redactie, ‘PvdA wil dat er een maximum komt in huurverhoging vrije sector: ‘Woningnood mag geen

verdienmodel zijn’ NPORADIO1 (29 January 2020) via < https://www.nporadio1.nl/politiek/21318-pvda-wil-dat-er-een-maximum-komt-in-huurverhoging-vrije-sector-woningnood-mag-geen-verdienmodel-zijn>.

85 Ibid.

86 Redactie, ‘PvdA wil dat er een maximum komt in huurverhoging vrije sector: ‘Woningnood mag geen

verdienmodel zijn’ NPORADIO1 (29 January 2020) via < https://www.nporadio1.nl/politiek/21318-pvda-wil-dat-er-een-maximum-komt-in-huurverhoging-vrije-sector-woningnood-mag-geen-verdienmodel-zijn>.

(19)

‘in line with the market’, landlords are free to ask whatever price they want.87 This increase can

sometimes even reach hundreds of euros in a year.88 Due to the high rents in the liberalized

sector, one in five tenants pays more than half of their income to rent.89 Landlords are only

becoming richer, while tenants are fighting to pay their bills and groceries.90

In the urban cities such as Amsterdam and Utrecht, a house for teachers, policemen, nurses and other middle-class people has become nearly unaffordable.91 Households with a low income

can rent a house from a housing association, where the prices of the rent, and the increases, are being regulated by the government.92 As a result, they are less affected by price developments

in the market.93 Households with a high income have more opportunities to get a house, because

they have more resources to get a house. Along with those two, there are also the middle-income earners who earn too much to be in the social sector of housing associations, but are facing difficulties to keep up with the soaring housing prices of the rental houses in the liberalized sector.94 The egregious character of the current housing market is also evident by virtue of the

fact that even in such uncertain, tough and chaotic times as now, the Dutch Minister of the Interior still has decided to not freeze the rent increases for this year.95 One can only imagine

what the current financial situation of many individuals is because of the Corona crisis that is affecting the whole wide world. From shops and restaurants that are closed to the air traffic that is almost at a complete standstill, but it is the Dutch government who allows landlords and housing associations to raise the rents after all. This can, and probably will, get a lot of people in trouble.96

87 Redactie, ‘PvdA wil dat er een maximum komt in huurverhoging vrije sector: ‘Woningnood mag geen

verdienmodel zijn’ NPORADIO1 (29 January 2020) via < https://www.nporadio1.nl/politiek/21318-pvda-wil-dat-er-een-maximum-komt-in-huurverhoging-vrije-sector-woningnood-mag-geen-verdienmodel-zijn>.

88 Ibid.

89 L. Asscher, ‘Asscher en Nijboer: Laat wonen niet aan de markt over’ Trouw (15 January 2020) via

<https://www.trouw.nl/opinie/asscher-en-nijboer-laat-wonen-niet-aan-de-markt-over~bb7747ed/>.

90 Ibid.

91 B. Hulsman, ‘Hoe de overheid zelf de woningnood creëerde’ NRC (16 April 2020) via

<https://www.nrc.nl/nieuws/2020/04/16/hoe-de-overheid-zelf-de-woningnood-creeerde-a3996946>.

92 Kamerstukken II 2018/19, 32847, nr. 546 93 Ibid.

94 Ibid.

95 P. Winterman, ‘Minister Ollongren is terug en ze gaat de huren niet bevriezen’ AD (April 15 2020), via

<https://www.ad.nl/wonen/minister-ollongren-is-terug-en-ze-gaat-de-huren-niet-bevriezen~ae3b0c25/?referrer=https://www.google.nl/>.

96 Telegraaf, ‘Tienduizenden huurders in problemen door corona, maatwerk ingezet’ Telegraaf (16 June 2020),

via <https://www.telegraaf.nl/nieuws/917274156/tienduizenden-huurders-in-problemen-door-corona-maatwerk-ingezet>.

(20)

The housing shortage is also due to the fact that not enough houses are being built. In 1991, the government started to build houses on the outskirts of the urban cities.97 In 2005, the Minister

of Public Housing pronounced that the building of those houses could cease, because she thought that the Netherlands was ‘finished’, and that it would be shrinking in population for the upcoming years.98 However, the CBS has systematically underestimated the population growth

in the recent years.99 The supervisory authority of the housing associations states that, the

problem for the lack in building new houses now, lies in the high costs of contractors and the fact that municipalities are late with designating land.100 There is a lack of officials at

municipalities, and that results in slowing down the process of building new houses.101 Building

permissions are being issued slowly and no one is really focusing on the future.102 Matters like

the low interest rates, the lack of building land, or the scarcity of construction professionals are also contributing to housing shortage.103 To overcome the housing shortage, the planning of

building has to start now, in order to be able to start building at the earliest opportunity.104

Taking everything into account, the issue in the Netherlands is the lack of houses that are available for individuals, and that those houses that are available within the liberalized sector, are becoming less affordable for the majority of people.

2.3. Responsibility of the State

Article 2.1. of the ICESCR sets out that “States have to undertake steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the right by all appropriate means”.105 The State has to do everything within its power to

realize the right to adequate housing.106 Rather than obliging States and their governments to

provide housing for the entire population, the right to adequate housing gives States the positive

97 B. Hulsman, ‘Hoe de overheid zelf de woningnood creëerde’ NRC (16 April 2020) via

<https://www.nrc.nl/nieuws/2020/04/16/hoe-de-overheid-zelf-de-woningnood-creeerde-a3996946>.

98 Ibid. 99 Ibid.

100 J. Julen, ‘Er is wél geld voor sociale huurwoningen’ Trouw (31 January 2020) via

<https://www.trouw.nl/binnenland/er-is-wel-geld-voor-sociale-huurwoningen~bd1840ab/>.

101 M. Witlox, ‘315.000 woningen te weinig, waar wonen die mensen nu?’ RTLZ (22 February 2020) via

<https://www.rtlz.nl/life/personal-finance/artikel/5030636/woningmarkt-krapte-daklozen-peter-boelhouwer-data>.

102 Ibid.

103 Redactie Trouw, ‘De nieuwe woningnood is een prioriteit voor het kabinet’ Trouw (13 January 2020) via

<https://www.trouw.nl/opinie/de-nieuwe-woningnood-is-een-prioriteit-voor-het-kabinet~b7306286/?referer=https%3A%2F%2Fwww.google.nl%2F>.

104 Ibid.

105 Art. 2.1. ICESCR.

(21)

obligation to prevent homelessness, prohibit forced evictions, address discrimination, focus on the most vulnerable and marginalized groups, ensure security of tenure to all, and guarantee that everyone’s house is adequate.107

Under international human rights law, States have the obligation to respect, protect and fulfil.108

In order to respect the right to adequate housing, States should refrain from interfering directly or indirectly with the enjoyment of the right to adequate housing.109 Therefore, States may not

carry out forced evictions, infringe on the right to privacy and protection of the home or deny housing to particular groups.110 For the protection, States have to regulate the housing and rental

markets to promote and protect the right to adequate housing.111 To comply with the obligation

to fulfil States must adopt the necessary means to ensure a progress towards the right to adequate housing.112

To achieve the fulfilment, according to the CESCR, “States parties must take deliberate, concrete and targeted steps within a reasonably short time after the Covenant’s entry into force”.113 A State has to include all appropriate means, especially the adoption of legislative

measures and provisions of judicial or other remedies.114 The constraints of resources could not

be seen as a justification for States for not taking steps towards the right to housing and even if the State has constraints of resources, it must ‘ensure the widest possible enjoyment of the rights under the prevailing circumstances’ and it has to protect the most vulnerable individuals by ‘adopting relatively low-cost targeted programmes’.115 A State is using ‘the maximum’ of its

available resources when using both its own resources and those of the international community through the international cooperation and assistance.116 An example of a State’s immediate

obligation to take steps, is that a State should guarantee at least minimum essential levels of the right to adequate housing, such as to ensure that a significant number of individuals are not deprived of basic shelter and housing.117 Retrogressing from the right to adequate housing is

107 OHCHR, ‘The Right to Adequate Housing’, Fact Sheet No. 21/Rev.1, p. 6. 108 Ibid., p. 33.

109 Ibid. 110 Ibid. 111 Ibid.

112 ESCR, FEANTSA v France, Complaint No 39/2006, Conclusion, par. 12.

113 CESCR, ‘An evaluation of the obligation to take steps to the “maximum of available resources” under an

optional protocol of the Covenant’ (10 May 2007) E/C.12/2007/1, par. 3.

114 Ibid. 115 Ibid, par. 4. 116 Ibid.

(22)

prohibited, unless a State has demonstrated that it has fully used their maximum available resources, and that this decision was taken only after having considered all of the other options that were within their powers.118 Any retrogressive measures in the regard of the ‘continuous

improvement of living conditions’ needs a careful consideration from the State.119 A State

retrogresses if it adopts a measure that ‘suppresses, restricts or limits the content of the entitlements already guaranteed by law’.120 According to the International Commission of

Jurists, in order to determine if a State’s measure is of retrogressive nature, ‘the former existing legislation has to be compared towards the recent adopted legislation’.121 If the new measure

results into the deprivation of people of the right that they used to enjoy, this could be qualified as a retrogressive measure.122

To give the right to adequate housing immediate effect, States have to monitor the situation with respect to adequate housing effectively.123 States need to determine the entire extent of

homelessness and inadequate housing within its jurisdiction and, other than that, they have to provide detailed information about the homeless persons.124 If a State fails to collect data on

the accommodation/shelter needs of homeless persons, this could lead to a breach of their obligation to collect the necessary factual information.125 In case of an eviction of an individual,

the State is obliged to take all appropriate measures to ensure that an adequate alternative housing will be made available for the individual.126 An individual may not become

homeless.127

Furthermore, States have to ensure sufficient quantity of housing, and should take measures to ensure the necessary construction of social and private housing and introduce housing benefits for people facing poverty.128 As regards the affordability of houses, the CESCR has put forward

118 S. Segal, ‘The International Human Right to Adequate Housing: An Economic Approach’, p. 494. 119 OHCHR, ‘The Right to Adequate Housing’, Fact Sheet No. 21/Rev.1, p. 31.

120 International Commission of Jurists, ‘Court and the Legal Enforcement of Economic, Social and Cultural

Rights’, p. 29.

121 Ibid.

122 ESCR-Net, ‘Progressive Realisation and Non-regression’, via <

https://www.escr-net.org/resources/progressive-realisation-and-non-regression>.

123 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 13. 124 Ibid.

125 CommDH, ‘Recommendation of the commissioner for human rights on the implementation of the right to

housing’ (30 June 2009), p. 8; ESCR, FEANTSA v France, Complaint No 39/2006, Decision on the merits of 5 December 2007.

126 CESCR, General Comment No 7, The right to adequate housing (Art 11(1)): forced evictions (1997), par. 16. 127 Ibid.

128 Council of Europe, ‘Redefining and Combating Poverty: Human rights, Democracy and Common Goods in

(23)

that, States must, in the first place, assists those who are unable to afford housing with housing subsidies.129 In addition, the housing finance should also adequately address the existing

housing needs.130 Thirdly, tenants should be protected from unreasonable rent levels or

increases.131 Besides, the ECtHR has also put forward that, the State has a wide margin of

appreciation which can be used to intervene in markets to protect the individuals for the high rents of their houses.132 All things considered, the State has a minimum core of the obligation

to adequate housing which must be adhered to, and work towards a full realization of that right.

2.4. Obligation to prevent homelessness

All of the above-mentioned obligations of the State aim at a full realization of the right to adequate housing and the prevention of homelessness in their territory. The latest numbers of the homeless in the Netherlands, are those of 2018, which stated that there were 39.300 homeless people between the age of 18 and 65 years.133 According to Peter Boelhouwer, a

housing market professor, the housing shortage of 331.000 will only increase till 2030, because the shortages the Netherlands is dealing with at the moment, will not reduce overnight.134 He is

of the opinion that the housing shortage that the Netherlands is facing now, is due to the government’s lack of direction.135 The government should take the lead in forcing faster and

cheaper constructions.136 I comprehend and share this view, since the numbers demonstrate that

the housing shortage is only becoming higher and that the way the Netherlands is operating right now, might not be effective enough.

On the 29th of October in 2019 the Dutch State Secretary for Health, Welfare and Sports

answered several parliamentary questions about the increasing number of the economically homeless.137 The first matter that stands out is the fact that the Dutch government is not aware

129 CESCR, General Comment No 4, The right to adequate housing (Art 11(1)) (1991), par. 8(c). 130 Ibid.

131 Ibid.

132 ECtHR, James and Others v. U.K., 21 February 1986 8739/79, par. 47.

133 CBS, ‘Aantal daklozen sinds 2009 meer dan verdubbeld’ CBS (23 August 2019) via

<https://www.cbs.nl/nl-nl/nieuws/2019/34/aantal-daklozen-sinds-2009-meer-dan-verdubbeld>.

134 D. Bremmer, ‘In Holland staat een huis, maar niet voor iedereen: vijf oorzaken voor de woningnood’ AD (25

January 2020) via < https://www.ad.nl/wonen/in-holland-staat-een-huis-maar-niet-voor-iedereen-vijf-oorzaken-voor-de-woningnood~a7ba96d8/?referrer=https://www.google.nl/>.

135 Ibid.

136 C. Hochstenbach, ‘Misbruik de wooncrisis niet’ RTLZ (13 January 2020) via

<https://www.rtlz.nl/opinie/column/4983386/wooncrisis-woningnood-huizen-koop-huizenprijzen-misbruik>.

137 Beantwoording Kamervragen van de Staatssecretaris van Volksgezondheid, Welzijn en Sport van 29 Oktober

2019, via <https://www.rijksoverheid.nl/documenten/kamerstukken/2019/10/29/beantwoording-kamervragen-over-het-toenemend-aantal-economisch-daklozen>.

(24)

of the total number of the economic homeless.138 This is remarkable, since it was mentioned

before, that a State has the obligation to monitor the situation effectively, and chart the extent of the homelessness. Thus, it could be concluded that the Netherlands is falling short in their obligation to collect the necessary factual information, since they do not have the exact numbers of the economically homeless. The number of 39.300 homeless people in 2018 could, therefore, actually be much higher if the economically homeless were to be included. However, the State Secretary states also something positives. They already started working towards decreasing the number of homelessness and are speeding up the process of the construction of houses with parties as municipalities, developers, housing associations, construction workers and investors.139 Their approach is to focus on building more houses and the contributing to the

affordability of those houses.140 The Ministry of the Interior and Kingdom Relations, has put

forward that investors are willing to realize more houses for the middle-income households and that he has took several measures to make building easier.141 As it seems, the government is

motivated to build more houses. Nevertheless, on the basis of previous years, this is easier said than done. The government’s aim last year was to build 75.000 houses, which was unsuccessful, due to the staff shortage in construction and the insufficient construction sites.142 Thus, there is

a real chance that the aims of this year will not succeed. On the basis of the construction figures for the previous years, the State has to ask itself whether they are working effectively enough. I think that resolving the aforementioned underlying problems that hinder the constructions might be a good first step towards the right way.

At the beginning of April this year, The Economic Institute of Construction announced that, according to its calculations, instead of growing, the new construction production will fall by 20 percent over the next two years.143 The Netherlands are indeed adopting legal, financial and

operational means to fulfil the right to adequate housing, but whether those are actually successful and are being realized may be questioned. The problem of the unsuccessful constructions may lie in the fact that housing planning is increasingly being entrusted to

138 Beantwoording Kamervragen van de Staatssecretaris van Volksgezondheid, Welzijn en Sport van 29 Oktober

2019, via <https://www.rijksoverheid.nl/documenten/kamerstukken/2019/10/29/beantwoording-kamervragen-over-het-toenemend-aantal-economisch-daklozen>.

139 Ibid. 140 Ibid.

141 Kamerstukken II 2018/19, 32847, nr. 546.

142 S. Trompert, ‘Vijf ideeën voor de overhead om de woningcrisis op te lossen’ RTLZ (10 January 2020) via

<https://www.rtlz.nl/life/personal-finance/artikel/4981471/dit-kan-de-overheid-doen-om-de-woningmarkt-vlot-te-trekken>.

143 B. Hulsman, ‘Hoe de overheid zelf de woningnood creëerde’ NRC (16 April 2020) via

(25)

municipalities.144 The problems have become too big to be solved by municipalities, and a new

broad spatial vision from the central government is needed.145 This is related to the State’s

obligation to protect the right to adequate housing, as was mentioned in the previous section. Certainly, the subnational governments, such as municipalities, have the obligation to aim at progressive realization of the right to adequate housing too, but it is the State itself that has to ensure that subnational governments have the resources and capacity to meet human rights responsibilities.146 At the end, the primary responsibility for the protection of human rights lies

with the national government.147 The Netherlands is not doing much about the regulation of the

housing markets, given that after all these years, and with a shortage of 350.000 homes, they still leave the constructions up to the municipalities. They are not taking responsibility and, do not ensure sufficient quantity of housing which leads to a lot of homeless people. Therefore, based on the facts that the Netherlands is still leaving the constructions up to the municipalities and still have not yet come with a new strategic that could be more promptly and effective, this could lead to a potential breach of the Netherlands towards their obligation to work progressively to the full realization of the right to adequate housing.

In addition, it appears that between 1995 and 2005, the government has spent around 5 billion euros on the construction of houses near the urban cities, and that for this year the government has planned to spent around 2 billion euros on the construction.148 This can be seen as a

retrogressive measure, since their former budget worked more towards a progressive realization of the right to adequate housing than their new budget of 2 billion euros does. To examine if this budget cut is retrogressive, examination of the impacts on the poorest and most deprived of the cutbacks, and how the rights of these groups can be safeguarded is necessary. It also has to be demonstrated by the Netherlands that this decision was taken only after considering all of the other options that were within their powers. Therefore, this could be a potential breach by the Netherlands towards their obligation of progressive realization of the right to adequate housing.

144 FD, ‘Los woningnood op met nieuwbouw’ FD (20 January 2020) via

<https://fd.nl/opinie/1331632/los-woningnood-op-met-nieuwbouw>.

145 B. Hulsman, ‘Hoe de overheid zelf de woningnood creëerde’ NRC (16 April 2020) via

<https://www.nrc.nl/nieuws/2020/04/16/hoe-de-overheid-zelf-de-woningnood-creeerde-a3996946>.

146 Special Rapporteur on the right to adequate housing, ‘The role of local and subnational governments with

respect to the right to adequate housing’ OHCHR A/HRC/28/62, par. 6 & 10.

147 HRC, ‘Report of the United Nations High Commissioner for Human Rights’, A/HRC/42/22, par. 61. 148 FD, ‘Los woningnood op met nieuwbouw’ FD (20 January 2020) via

(26)

However, it seems that the Dutch Minister of the Interior has decided to do something about the rent increases of landlords in the liberalized sector. Just recently, on the 15th of May, she

has put forward that she is working hard on measures to improve the affordability of housing and to combat excesses.149 One of those measures is to maximize the annual rent increases to a

maximum of 2,5% plus the inflation, so that in this case liberalized sector tenants know where they stand and are not expectedly faced with high rent increases.150 Nevertheless, a comment

that has to be made on this measure, is the fact that the initial rent is in most cases already excessively high, and can be around 1500 euros in the urban cities.151 Furthermore, besides the

annual rent increase there are also rent increases when a tenant moves out of the house and a new tenant moves in.152 At such a time, landlords are allowed to increase the rent indefinitely.153

The average rent increase at changes of tenants in the private sector is around the 14,8% and in the urban cities such as Amsterdam and Utrecht the rent increase could even reach to 37,6%.154

For this reason, I cannot conclude that the Netherlands fulfils its obligation to intervene in markets to protect the individuals for rent increases or that is lacking in this obligation. Although this measure does not appear to be the perfect solution from a critical point, it still is a measure that attempts to protect some tenants from an unreasonable rent increase.

As it seems, the Netherlands could be in breach of their obligation to protect the right to adequate housing and to not retrogress. However, even if the State is in breach of its obligations, it remains difficult for individuals to invoke the right to adequate housing, because the right to housing remains a vague right which has not yet been provided a clear definition by courts and monitoring bodies where individuals can rely on.155 Therefore, it is problematic to invoke the

right to adequate housing, and as J. Hohmann has stated: “it is a hollow promise and any

attempt to invoke it as an instrument in a project of advocacy is fraught with uncertainty”.156

149Rijksoverheid, ‘Jaarlijkse huurverhoging vrije sector gemaximeerd’ (15 May 2020) via

<https://www.rijksoverheid.nl/actueel/nieuws/2020/05/15/jaarlijkse-huurverhoging-vrije-sector-gemaximeerd>.

150 Ibid.

151 C. Hochstenbach, ‘Kabinet moddert ook nu maar wat aan op de woningmarkt’ RTLnieuws (18 May 2020) via

<https://www.rtlnieuws.nl/economie/opinie/column/5125071/ollongren-woningmarkt-huurverhoging-coronacrisis-huur-koop-beleid>.

152 NOSop3, ‘Huurverhogingen worden aangepakt, maar niet voor nieuwe huurders’ NOSop3 (11 June 2020) via

< https://nos.nl/op3/artikel/2336956-huurverhogingen-worden-aangepakt-maar-niet-voor-nieuwe-huurders.html>.

153 Ibid. 154 Ibid.

155 J. Hohmann, ‘The Right to Housing: Law, Concepts, Possibilities’, p. 128. 156 Ibid.

(27)

2.5. Interim conclusion

Among the homeless, there are economically homeless people who do have an income, but cannot afford a house. This is due, to the fact that there is a housing shortage of 331.000 houses. Simply stated, because to the high demand for housing, landlords have a great deal of freedom in asking whatever rent they desire, considering that it is ‘in line with the market’. Even if the measure to maximize the rent increased would be implemented in the Netherlands, it remains still an increase of almost 3-4% each year. Such an increase on top of your rent of around €1500 can still affect a lot of individuals, who strive to keep their head above water every day. The State has the obligation to respect, fulfil and protect the right to adequate housing, and should aim at a full progressive realization towards this right. The Netherlands could be breaching its obligations, considering that there has been a housing shortage for several years, and they still are not working effectively enough and leave the constructions up to the municipalities.

(28)

Chapter three: Responsibility of private equity firms: Case Study

Blackstone

3.1. Introduction

After setting out the responsibilities of the State, this chapter will analyze the obligations of the private equity firms. This requires an analysis of the impact of human rights law in the national legal order is and how that could be relevant to the obligations of multinational corporations. First, however, the chapter examines, the role of Blackstone in the issue of affordability of houses. An answer on this question will be found by researching what Blackstone is actually doing on the housing market. This chapter finds that Blackstone has no direct obligations under international human rights law.

3.2. Blackstone’s conducts

Blackstone was founded in 1985 and since the financial crisis back in 2008, Blackstone’s assets have six folded to nearly $600 billion, which makes them one the world’s largest private equity firms.157 In its letter, the Special Rapporteur shares her concerns about the major impact

Blackstone’s investing in housing as a security for financial instruments has on the enjoyment of the right to adequate housing.158 She points out that multi-family residences in ‘undervalued’

neighborhoods are being targeted mostly by Blackstone and its subsidiaries.159 This letter was

sent to government officials of Denmark, the Czech Republic, Spain, Sweden and the United States (hereinafter ‘US’), too, since Blackstone is targeting the houses in all of those countries.160

The city of Uppsala in Sweden, which is an undervalued neighborhood according to the Special Rapporteur, is one of the cities that was being targeted by Blackstone, through a Swedish investment bank.161 The tenants that were living in this neighborhood had set a level of rents

which was affordable for them. The affordability of the houses changed once Blackstone started renovating and increased the rents up to 50%. Eventually and also somewhat expected, the

157 A. Gara, ‘Blackstone now more valuable than Goldman Sachs and Morgan Stanley Amid the Coronavirus

Chaos’ Forbes (5 March 2020) via < https://www.forbes.com/sites/antoinegara/2020/03/05/blackstone-overtakes-goldman-sachs-and-morgan-stanley-amid-the-coronavirus-chaos/#7e94f685400f>.

158 S. Deva & L. Farha’s letter to Blackstone (22 March 2019) via

<https://www.ohchr.org/Documents/Issues/Housing/Financialization/OL_OTH_17_2019.pdf>, p. 1.

159 Ibid., p. 4 – 5. 160 Ibid., p. 4. 161 Ibid., p. 5.

Referenties

GERELATEERDE DOCUMENTEN

It drew the discussion on human rights into the arena of the cold war, with western countries emphasising civil and political rights and Soviet-type countries stressing the

If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.. Downloaded

This diagram shows the parameters of influence on one of the key indicators of quality of care: the incidence of post-operative complications after a hospital treatment..

gewys is, kan hierdie 'n be· hierdie laaste twee sektore se perkende faktor word, maar ontwikkelingspotensiaal in ag aangesien die interafhanklik· geneem word,

Proposition 7: Instances of environmental abuse or labor violations that received negative media attention regarding the entire industry are likely to have a damaging

Generally, juvenile instars of Galumna are mor- phologically very similar (Bayartogtokh and Er- milov 2017), but G. curvifamulus can be well Figs. Galumna curvifamulus

The documentary specifically portrays how European states have increasingly come to make use of surveillance technologies to control people’s mobility at –and beyond- the external

determinants (or driver variables) contributing to the altered state of the fish communities at this site were identified as habitat state alterations – including