Facing financialization in the housing sector: A human right to adequate housing for all
| Author | Ingrid Leijten,Kaisa de Bel |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| DOI | 10.1177/0924051920923855 |
| Subject Matter | Articles |
Article
Facing financialization in
the housing sector:
A human right to adequate
housing for all
Ingrid Leijten
Department of Constitutional and Administrative Law, Leiden University Faculty of Law, Leiden, the Netherlands
Kaisa de Bel
LLM student International Criminal Law, University of Amsterdam, Amsterdam, the Netherlands
Abstract
Housing is increasingly seen as a vehicle for wealth accumulation rather than a social good. ‘Finan-
cialization’ of housing refers to the expanding and dominant role of financial markets and corpora-
tions in the field of housing, leading to unaffordable and insufficient housing and discrimination.
Although clearlylinked to the right to adequate housing,financialization and its effects arenot often
viewed froma human rights perspective. Thisarticle fleshes out this important link by illuminating the
standards set in relation to the right to adequate housing enshrined in Article 11(1) ICESCR. It is
shown that recently,human rights bodies have confrontedthe issue of financializationmore directly,
translating general requirements to this particular issue. Moreover,efforts at UN level are mirrored
in initiativesat the local level, signallingthe beginning of a shift towards a paradigm that complieswith
human rights. The financialization of housing and the response of human rights also allow for
addressinga more general issue, namely the potential of majorityprotection in times of human rights
backlash. In this regard, it is worth emphasising that human rights such as the right to adequate
housing protectnot only the extreme poor. In the contextof financialization, this maycontribute to
better housing conditions as well as reconnect people to their human rights.
Keywords
Right to adequate housing, financialization, human rights, human rights backlash, majority
protection
Corresponding authors:
Kaisa de Bel, LLB, BSc, LLM student International Criminal Law, University of Amsterdam, 1012 WX Amsterdam, the
Netherlands.
E-mail: Kaisa_de_bel@hotmail.com
Ingrid Leijten, LLM, MA, Department of Constitutional and Administrative Law, Leiden University Faculty of Law, 2311 ES
Leiden, the Netherlands.
E-mail: a.e.m.leijten@law.leidenuniv.nl
Netherlands Quarterly of Human Rights
2020, Vol. 38(2) 94–114
ªThe Author(s) 2020
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DOI: 10.1177/0924051920923855
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1. INTRODUCTION
Housing is increasingly seen as ‘a vehicle for wealth and investment rather than a social good’.
1
The ‘financialization’ of housing is omnipresent and has had detrimental effects on low and middle
income households. Everywhere in the world, people are dealing with a lack of adequate housing.
2
They cannot find an affordable place to live that meets their needs; that provides privacy and
facilities and is close to work and education opportunities. Young adults cannot afford a home of
their own, women are disproportionately affected by housing insecurity, and homelessness con-
tinues to persist even in the most affluent States. Housing options that are adequate, appear scarce,
while mass migration makes solutions seem even more out of reach.
3
In times of financialization, it is easy to lose sight of the fact that ‘(h)ousing is a right, not a
commodity’.
4
Although not topping the list of so cial rights, the right to ho using is increasingly
recognized as such.
5
It can be found in many international documents and national constitu-
tions. According to Article 25(1) of the Universal Declaration on Human Rights (‘UDHR’),
‘Everyone has the right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment, sickness, disability, widow-
hood, old age or other lack of livelihood in circumstances beyond his control’. This is mirrored
in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights
(‘ICESCR’): ‘the States Parties [ ...] recognize the right of everyone to an adequate standard
of living for himself and his family, including adequate [ ...] housing’. In more precise terms,
the (Revised) European Social Charter, for example, requires States to take measures ‘to
promote access to housing of an adequate standard’; ‘prevent and reduce homelessness with
a view to its gradual elimination’, and ‘make the price of housing accessible to those without
adequate resources’.
6
Similarly, the Constitution of South Africa guarantees ‘the right to have
access to adequate housing’, meaning ‘[t]he state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive realisation of this right’. In
this regard, ‘[n]o one may be evicted from their home, or have their home demolished, without
an order of court made after considering all the relevant circumstances. No legislation may
permit arbitrary evictions’.
7
It follows that the right to housing cannot be equalled to the right to have a roof over one’s head.
At first glance, it entails more and less at the same time. On the one hand, ‘adequate’ housing
implies a certain standard of housing that includes facilities, like energy and sanitation, is
1. See the homepage of the UN Special Rapporteur on adequate housing as a component of the right to an adequate
standard of living, and on the right to non-discrimination in this context
pages/housingindex.aspx> accessed 15 January 2020.
2. See, for example, UN General Assembly, Report of the Special Rapporteur on adequate housing as a component of the
right to an adequate standard of living, and on the right to non-discrimination in this context (A/HRC/34/51, 18 January
2017).
3. See, for example, David Robinson, ‘New immigrants and migrants in social housing in Britain: discursive themes and
lived realities’ (2009) 38 Policy and Politics 57.
4. See the homepage of the SR (n 1).
5. Courtney Jung, Ran Hirschl and Evan Rosevear, ‘Economic and Social Rights in National Constitutions’ (2014) 62
American Journal of Comparative Law 1043.
6. Article 31 (R)ESC.
7. Article 26 Constitution of the Republic of South Africa, 1996.
Leijten and de Bel 95
affordable and culturally a dequate.
8
On the other hand, having a right to access to adequate
housing is not the same as a claim to housing itself, and requirements of progressive realization
suggest the right to housing is subject to the means a State has at its disposal. The existence of
multiple, partly overlapping housing rights norms, that are elaborated on in a range of documents
and practices, including court judgmen ts, committee decisions, reporting cycles etc. does n ot
necessarily make the right to housing more transparent. What exactly can be expected from
governments when it comes to housing?
This question is crucially relevant in times of financialization. ‘Financializaiton’ (or ‘commo-
dification’) is the term used for ‘[t]he expanding role and unprecedented dominance of financial
markets and corporations in the housing sector’.
9
Financial institutions and markets are sustained
by governments while foreclosures and evictions resulting from, for example, prohibitive rents, as
well as inadequate housing have a large impact on the individuals concerned. A focus on capital
and investors, just like austerity measures involving reducing social housing programmes and
(further) privatization, are severing housing from its social function. Financialization detaches
housing from a human rights discourse including rights-based entitlements gov ernments must
secure.
A different concern, that does not specifically involve the right to housing, is that human rights
are under attack and fail to be seen as rights of everyone. They are regularly portrayed as rights
belonging to small minorities – wrongly focusing on (undocumented) migrants, detainees and
terrorists.
10
The so-called ‘populist backlash’ against human rights is endangering the system.
11
Populist leaders and governments may use anti-rights rhetoric that appeals to large numbers of
concerned citizens, fuelling their scepticism towards the aims of human rights protection as well as
these rights themselves. This development requires various responses, but in any case an effort to
‘reconnect’ human rights to those who can rely on them. A fundamental characteristic of human
rights and fundamental rights protection more generally, is their anti-majoritarian function, that is,
the fact that they protect marginalized individuals and minority groups against the power of the
(legislative) majority. This should not, however, close our eyes to the fact that the rights of
majorities are not always that well guaranteed either.
12
The lack of adequate housing for a great
number of people clearly illustrates this. Not every individual will be personally confronted with
censored speech, the banning of religious practices or the impossibility to vote. In our lifetimes,
however, many of us will incur a housing problem: be it the lack of an affordable dorm room, the
impossibility of obtaining a social housing flat, the inadequateness of a rented place, accessibility
problems in case of a disability or old age, or obstacles in securing a roof over one’s head in the
first place. Even though it is sometimes argued that social rights should primarily address the needs
8. CESCR, General Comment No. 4: The Right to Adequate Housing (article 11(1) of the Covenant) (E/1992/23, 13
December 1991) para 8.
9. Report SR 2017 (n 2), para 1.
10. See, for example, Zeid Ra’ad Al Hussein, ‘Is International Human Rights Law Under Threat?’ (BIICL Annual Grotius
Lecture, 26 July 2017)
speech_260617.pdf?showdocument¼> accessed 15 January 2020; Philip Alston, ‘The Populist Challenge to Human
Rights’ (2017) 9 Journal of Human Rights Practice 1, 6.
11. ibid.
12. Samuel Moyn, ‘On Human Rights and Majority Politics: Felix Frankfurter’s Democratic Theory’ (20 January 2019),
available at SSRN ¼3319515> accessed 15 January 2020; David Landau and Rosalind
Dixon, ‘Constitutional Non-Transformation. Socioeconomic Rights beyond the poor’ in Katharine G. Young (ed.), The
Future of Economic and Social Rights (CUP 2019) 110.
96 Netherlands Quarterly of Human Rights 38(2)
of the poorest, the right to housing is able to exemplify that human rights are important for all of us.
When (financial) housing policy is tackled as a human rights issue, this may benefit those facing
dire housing situations, but also contribute to a better image of human rights altogether.
In the light of this, this article aims to answer the following question: what are the standards set
in relation to the right to housing that are relevant to the issue of financialization, and how does the
link between both reflect on the importance of human rights for everyone? To this end, the human
right to housing is illuminated in an effort to clarify what it means in times of financialization. In
doing so, this article focuses on the context of UN human rights mechanisms and the ICESCR in
particular. After an introduction to the housing standards set in the UN context, as well as the
phenomenon of financialization, it continues by fleshing out the human rights dimension of this
issue by identifying more specific standards. This is fol lowed by several examples of (local)
policies and actions that appear sensitive to the rights-dimension of housing. Finally, the article
returns to the populist backlash against human rights and the void housing rights might fill.
2. THE HUMAN RIGHT TO ADEQUATE HOUSING: UN
STANDARD SETTING
After first being recognised in the UDHR, the right to housing has been reaffirmed in numerous
international human rights instruments, such as human rights treaties, UN resolutions and other
international declarations on housing rights.
13
The key legal framework is provided by Article
11(1) ICESCR, and although listed as one of the component elements of the right to an adequate
standard of living, Article 11(1) ICESCR has been interpreted as also proclaiming the right to
adequate housing as a distinctive right on its own.
14
The UN Committee on Economic, Social and Cultural Rights (‘CESCR’) set out to clarify the
content of Article 11(1) ICESCR in its General Comment no. 4 on the right to adequate housing
and General Comment no. 7 on forced evictions. Unlike the ICESCR itself, these are not legally
binding, but they provide an authoritative interpretation of the rights provided in the ICESCR and
are therefore a good starting point for outlining the content of the right to housing. Although dating
from 1991 and 1997, the Comments continue to provide the baseline for how the right to adequate
housing is to be understood.
15
It becomes clear from General Comment no. 4 that the right to housing should not be interpreted
narrowly. At its core, it means the right ‘to live somewhere in security, peace and dignity’.
16
It
follows, as noted earlier, that it is not a right to merely have a roof over one’s head, rather it
requires housing to be adequate. The CESCR identified seven aspects that need to be considered
for an adequate standard of housing. First, there has to be some degree of security of tenure which
guarantees occupants legal protection against forced evictions, harassment and other threats.
13. See, for example, Convention on the Elimination of All Forms of Racial Discrimination (1965) Article 5(e)(iii);
Convention on the Elimination of All Forms of Discrimination against Women (1972) Article 14(2); Convention on the
Rights of the Child (1989) Article 27(3); Declaration on Social Progress and Development, UNGA Res 2542 (XXIV)
(11 December 1969) Article 10; ILO Recommendation R115: Workers’ Housing Recommendation (Recommendation
Concerning Workers’ Housing) (Forty-fifth Conference Session 7 June 1961).
14. CESCR, General Comment No. 4 (n 8) para 1.
15. This is also evident from the references to both General Comments in the CESCR’s (recent) concluding observations,
available via accessed 15 January 2020.
16. ibid para 7.
Leijten and de Bel 97
Second, an adequate house must have certain facilities for health and security, such as safe
drinking water, energy for cooking and adequate sanitation. Third, housing should be affordable
to the extent that its costs do not threaten or compromise the occupant’s other basic needs and
rights. A house should also be habitable in that it provides adequate space and protects occupants
against the weather and other threats to health. Furthermore, housing should be accessible to those
entitled to it, and disadvantaged groups such as the elderly, children, persons with medical prob-
lems and people living in disaster-prone areas should be ensured some degree of priority consid-
eration. The location of a house is also important, as it should be in a non-polluted and safe area
which allows access to employment options and social facilities. Finally, a house must be cultu-
rally adequate so that it allows occupants to express their cultural identity.
17
Security of tenure is especially important for guaranteeing the right to adequate housing. The
CESCR ‘views many component elements of the right to adequate housing as being at least
consistent with the provision of domestic remedies’, such as legal appeals against planned evic-
tions and complaint procedures against landlords concerning discrimination or housing condi-
tions.
18
In line with this, forced evictions are considered as a prima facie violation of the right
to adequate housing.
19
The term ‘forced evictions’ that is central to General Comment no. 7, refers
to the removal of persons from their homes against their will, without the provision of and access to
(legal) protection.
20
In cases where an eviction is justifiable, for example because a tenant fails to
pay rent or damages the property, it should always be in accordance with the principles of reason-
ableness and proportionality.
21
Additionally, specific procedural safeg uards should always go
alongside the eviction, including genuine prior consultation, a reasonable notice and availability
and the provision of legal remedies.
22
Moreover, the (justifiable) eviction should not render the
former occupant homeless or vulnerable to the violation of other human rights, which may require
that adequate alternative housing be offered.
23
Last but not least, like every other human right, the right to adequate housing applies to
everyone. This means that the human rights principles of equality and non-discrimination are
fundamental components of the right to housing. Article 2(2) ICESCR stipulates that all rights
in the Covenant should be exercised without discrimination. In line with this, all individuals and
families are entitled to equal access to both adequate housing and to protection against violations of
the right, regardless of race, sex, economic status or other discriminatory grounds.
24
The fact that the right to adequate housing is defined broadly and applies in a non-
discriminatory fashion, does not mean that everyone is entitled to a house in the sense that this
can be demanded on the spot. Taking into account the economic circumstances and the capacity of
the State, the full realization of most economic and social rights can only be achieved progres-
sively. Therefore, the principal obligation imposed on States under Article 2(1) of the ICESCR is
to take steps, to the maximum of its available resources, towards the progressive realization of the
17. ibid para 8.
18. ibid para 17.
19. ibid para 18.
20. CESCR, General Comment No. 7: The Right to Adequate Housing (Article 11(1) of the Covenant): Forced Evictions
(E/1998/22, 20 May 1997) para 3.
21. ibid para 14.
22. ibid para 15.
23. ibid para 16.
24. CESCR, General Comment No. 4 (n 8) para 6.
98 Netherlands Quarterly of Human Rights 38(2)
rights enshrined in the Covenan t. States thus do not have an immediate obligation t o ensure
housing for everyone.
25
Nevertheless, they have a fundamental duty to respect, protect and fulfil human rights, and a
failure to do so constitutes a violation of these rights.
26
First, States have a negative obligation to
respect the right to housing by refraining from taking any measures that prevent the enjoyment of
the right. For example, carrying out forced evictions or denying security of tenure to particular
groups would violate the obligation to respect the right to housing. Second, States have the
obligation to protect people against third parties interfering with their rights. This could involve
providing legal protections against privately-enforced evictions and adopting legislation to ensure
that private actors comply with the standards of the human right to adequate housing. Finally,
States have the positive obligation to fulfil the right to housing by taking appropriate legislative,
administrative, budgetary, judicial or other measures towards the full realization of the right.
27
It
might vary from State to State what measures are best suited to protect and fulfil the right to
housing. Thus, States have some margin of appreciation. But the CESCR has pointed out that it
will almost always require the adoption of a national housing strategy that allocates responsibility
and sets a budget and a timetable.
28
Even though the obligations of States are subject to progressive realization depending on the
available resources, the CESCR has made it clear that this should not be misint erpreted as a
justification for non-compliance. The obligation under Article 2(1) ICESCR is a fundamental duty
to take all appropriate measures to move ‘as expeditiously and effectively as possible’ towards the
full realization of the right to housin g.
29
This means that States have the burden of proof to
demonstrate that they are making measurable progress towards the full realization of the right
to housing.
30
They must take steps that are ‘deliberate, targeted and concrete’ to move towards the
realization of the right.
31
Deliberate regressive steps have to be justified with reference to the
available resources and the other rights in the Covenant.
32
More specifically, a general decline in
housing stock and conditions, which is directly attributable to policy and legislative decisions by
State Parties, and in the absence of accompanying compensatory measures, is inconsistent with the
obligations under the Covenant.
33
Even in the context of economic hardship, austerity measures
should always be temporary, necessary, proportionate and non-discriminatory. In times of crisis,
States have a special duty to design their measures and policies in a way that mitigates inequalities
and must ensure that the rights of the disadvantaged and marginalized are not disproportionately
affected.
34
25. See OHCHR & UN Habitat, ‘The Right to Adequate Housing, Factsheet no. 21/Rev. 1’ accessed 15 January 2020.
Documents/Publications/FS21_rev_1_Housing_en.pdf> accessed 15 January 2020.
26. CESCR, ‘The Maastricht Guidelines on Violations of Economic, Social and Economic Rights’ (E/C.12/2000/13, 2
October 2000) para 6.
27. ibid.
28. CESCR, General Comment No. 4 (n 8) para 12.
29. CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Article 2, Para. 1, of the Covenant) (E/
1991/23, 14 December 1990) para. 9.
30. CESCR ‘Maastricht Guidelines’ (n 26) para 8.
31. CESCR, General Comment No. 3 (n 29) para 2.
32. ibid para 9.
33. CESCR, General Comment No. 4 (n 8) para 11.
34. Letter from CESCR Chairperson to State Parties on Austerity Measures, (CESCR/48th/SP/MAB/SW, 16 May 2012)
Leijten and de Bel 99
Furthermore, some obligations are not subject to progressive realization. The Committee refers
to the ‘immediate obligations’ of States regardless of their available resources. Apart from the
obligation to abstain from certain practices that interfere with the right to housing, States must
immediately guarantee that the right to housing is exercised on the basis of non-discrimination, and
give due priority to groups living in unfavourable conditions.
35
Moreover, States have the imme-
diate obligation to effectively monitor the housing situation to ascertain the extent of homelessness
and inadequate housing.
36
Finally, States have the immediate obligation to confer some level of
security of tenure and to provide legal protection against forced evictions.
37
With its statements and General Comments, the CESCR has provided guidance on what the
right to housing entails. However, the breadth of the right and the leeway of States in adopting
measures to promote and fulfil the right to housing make it hard to determine which measures and
elements deserve priority, which represent long-term policy goals and which are mere suggestions
for courses of action.
38
The relatively new individual complaint procedure under the Optional
Protocol to the Covenant has the potential to shed further light on this. In fact, quite a few of the
cases that have been dealt with thus far, concern the right to adequate housing and some moreover
address the issue of financialization. Yet before moving on to a discussion of the link between the
right to housingand financialization, it is worthoutlining the latter phenomenonin some more detail.
3. THE RIGHT TO ADEQUATE HOUSING IN TIMES OF
FINANCIALIZATION
3.1. FINANCIALIZATION OF HOUSING
Housing has the primary social function of providing a home to people. In addition, home own-
ership has always had the function of providing economic security, as it provides a safe haven for
savings and wealth accumulation.
39
For much of history, housing has been governed by the market.
Over the past decades, however, global financial actors have become increasingly dominant on this
market. This trend, which can be refe rred to as the ‘financialization of housing’, is arguably
transforming the primary function of a house from a place to live to a commodity for investment
and quick profit.
40
This trend is part of a broader phenomenon characterised as the ‘financialization of contem-
porary capitalism’, in which the growing financial sector now dominates economic activity and
wealth accumulation.
41
On the housing market, financialization has had two major effects. First,
the mortgage market turned housing into a tradeable debt on the global financial market. This
occurred through the securitization of mortgages, that is, the packaging of mortgage debt into
tradable financial products, which are then sold to third-party investors.
42
This allows for global
35. CESCR, General Comment No. 4 (n 8) para 10.
36. ibid para 13.
37. ibid para 8(a).
38. See Jessie Hohmann, The right to housing: law, concepts and possibilities (Hart Publishing 2013).
39. Ray Forrest, ‘The ongoing financialisation of home ownership – new times, new contexts’ (2015) 15(1) International
Journal of Housing Policy 1.
40. Report SR 2017 (n 2), para 1.
41. John B Foster, ‘The financialization of Capitalism’ (2007) 58(11) Monthly Review 1.
42. Manuel B Aalbers, ‘The variegated Financialization of Housing’ (2017) 41(4) International Journal of Urban and
Regional Research 542.
100 Netherlands Quarterly of Human Rights 38(2)
capital to be invested in housing. The advent of mortgage-backed securities stems from the
deregulation and liberalization of the financial system and mortgage market in the 1980s and
1990s by State governments.
43
Rooted in neo-liberal ideologies, these liberalization policies were
part of a new housing strategy that relied on private market solutions. In the United States and
many European countries, this strategy included the withdrawal of public housing funding, fol-
lowed by the privatization of public housing and the simultaneous promotion of homeownership
through finance policies. In order to attract additional lenders to the mortgage market, these States
allowed for the process of securitization through their deregulation policies.
44
Eventually, what
was meant to facilitate the production of housing and promote access to homeownership, also
became a tool for profitmaking.
45
Although mortgages make homeownership accessible to families who otherwise would not be
able to buy a home, these relaxed mortgage policies made various financial actors increasingly
powerful while also expanding the debt taken on by individual households. The potential negative
consequences of this process were demonstrated by the 2008 global financial crisis. The secur-
itization process significantly contributed to a global housing and finance bubble, while at the same
time so-called ‘subprime mortgages’ were granted to moderate-income households that normally
would be ineligible for a mortgage.
46
Once the bubble burst, millions of households were affected
through the foreclosure of their homes, resulting in evictions of families and sometimes home-
lessness. In the US, more than 13 million households lost their homes in the period between 2006
and 2010. This ended in more than 9 million evictions, affecting about 30 million people.
47
A
European example is Spain, with 500.000 foreclosures resulting in over 300.000 evictions between
2008 and 2013.
48
It is notable that these mortgage defaults were not as significant in countries with
stricter banking regulations and lending standards. The housing crisis was much less severe in
Canada for example, where the mortgage market was tightly regulated.
49
The second major effect of the financialization of housing is the increasing significance of
residential real estate as an asset of investment and wealth accumulation. The vast amount of
residential properties subject to foreclosures in the aftermath of the financial crisis created an
opportunity for investors to cheaply purchase them. By the end of 2017, the estimated value of the
world’s real estate reached a new high of 280 trillion US dollars, with residential property repre-
senting the largest share (220 trillion US dollars).
50
This makes residential real estate the biggest
43. Raquel Rolnik, ‘Late Neoliberalism: The Financialization of Homeownership and Housing Rights’ (2013) 37(3)
International Journal of Urban and Regional Research 1058.
44. ibid.
45. Peter Marcuse and David J Madden, In defense of housing (Verso Books 2016).
46. Rolnik (n 43) 1062.
47. Saskia Sassen, ‘Finance as Capability: Good, Bad, Dangerous’ (Arcade: A Digital Salon 2014)
ford.edu/occasion/finance-capability-good-bad-dangerous> accessed 15 January 2020.
48. Report SR 2017 (n 2), para 5.
49. Michael D. Bordo, Angela Redish & Hugh Rockoff, ‘Why didn’t Canada have a banking crisis in 2008 (or in 1930, or
1907, or...)?’ (2014) 68(1) The Economic History Review 218; James Macgee, ‘Why didn’t Canada’s Housing
Market Go Bust?’ (Economic Commentary, 2009)
economic-commentary/economic-commentary-archives/2009-economi c-commentaries/ec-20090909-why-didnt-cana
das-housing-market-go-bust.aspx> accessed 15 January 2020.
50. Savills World Research, ‘8 things to know about global real estate value’ (Savills: impacts, 2017)
com/impacts/market-trends/8-things-you-need-to-know-about-the-value-of-global-real-estate.html> accessed 15 Jan-
uary 2020.
Leijten and de Bel 101
asset class in the world, highlighting its important role in economies worldwide. Of particular
significance is the massive amount of money spent by private investors such as (foreign) corpo-
rations and private equity funds on the purchasing of homes with the purpose of making a profit. In
2015 alone, 443 billion dollars of capital was raised for international real estate investment, with
residential properties accounting for the biggest share.
51
From 2013 to 2014, the foreign corporate
buying of propertiesgrew by 248%in Amsterdam, by 180%in Madrid and by 160.8%in Beijing.
52
Thispractice does not seem to be declining.In 2018, the share of investorpurchases of homes in the US
climbed to an all-time highof 11.3%, as opp osed to 6%in 2000.
53
There is now a g lobal market for
residentialproperties forpurposes other than primaryresidence. The purposeof these investments is to
re-sellthe property with profit,sometimes after destroyingthem to rebuildand individually sell luxury
apartments in tall buildings. Alternatively, properties are turned into rental apartments or are refur-
bishedto profit from (increased)rents. Other examples includehousing investmentsfor the purpose of
using the property as a second home, office space or hotel accommodation.
54
For example, Airbnb
turns existinghousing stock that would otherwise be used forlong-term housing into short-term hotel
accommodation,which simultaneously affects local housing pricesand rent levels.
The financialization of housing is increasingly considered controversial. Despite the enormous
amountsof money pouring intothe housing sector, thereis a growing and global shortageof affordable
housing.Profit-driven financialactors respond to globalcapital rather than to local housingneeds, and
therefore tend to invest in expensive luxury housing rather than affordable housing for low- and
middle-income households.
55
At the same time, financial actors drive up housing prices and rent
levels, requiring people to spend growing proportions of their income on housing. Today, housing
in cities with the mo st economic opportuni ties, such as New York, Hong K ong, London and Sydney, is
unaffordable for the people who would most benefit fromthese opportunities.
56
Increasing housing costs have a disproportionate effect on low-income households. In 2017,
38%of poor households in the EU (as opposed to 10,4%of all EU households) spent more than
40%of their income on housing costs, leaving limited money for them to spend on basic necessities
of life.
57
Housing cost overburden can result in foreclosures, evictions, and eventually, particularly
in combination with austerity policies and a lack of social housing, homelessness. While home-
lessness is on the rise, the number of vacant homes in Europe (11 million) would be enough to
house double the number of homeless people on the continent (4.1 million).
58
51. Cushman and Wakefield, ‘The Great wall of money’ (Cushman and Wakefield, 2016)
com/en/research-and-insight/2016/great-wall-of-money-2016/> accessed 15 January 2020.
52. Saskia Sassen, ‘Who owns our cities – and why this urban takeover should concern us all’ (The Guardian,24
November 2015).
53. Corelogic, ‘Special Report: Investor Home Buying’ (Corelogic, 2019)
special-report-investor-home-buying.aspx> accessed 15 January 2020.
54. John Doling & Richard Ronald, ‘‘Not for housing’ housing: Widening the Scope of housing Studies’ (2019) 6(1)
Critical Housing Analysis 22.
55. Report SR 2017 (n 2), para 31.
56. See Demographia, ‘15th Annual Demographia International Housing Affordability Survey: 2019’ (Dempgraphia,
2019) accessed 15 January 2020.
57. FEANTSA ‘Fourth overview of housing exclusion in Europe 2019’ (FEANTSA, 2019)
report/2019/04/01/the-fourth-overview-of-housing-exclusion-in-europe-2019?bcParent¼27> accessed 15 January
2020.
58. Rupert Neate ‘Scandal ofEurope’s 11 m empty homes’ (The Guardian, 23 February 2014). These high vacancy rates
have also been linked to speculative investments by global financial actors. For this, see: FEANTSA, ‘The
102 Netherlands Quarterly of Human Rights 38(2)
In light of the complex market and its multitude of actors, including banks, real estate devel-
opers, investment companies and private equity funds, accountability is limited. Nevertheless,
States have an important role and can be seen as a driving force behind the financialization of
housing. Governments have supported financialized structures through legislation, policies and
strategies promoting privatization, marketization and deregulation. A prominent example is the
policy response in the aftermath of the 2008 financial crisis. Many families were pushed into
housing debt through the pre-crisis mortgage policies, but financial actors received more protec-
tion than those families when things went awry. While financial institutions were saved with
expensive bailouts, many governments put austerity measures in place including substantial cuts
to housing programs, further privatization of social housing and selling off massive amounts of
housing and real estate assets to private equity funds. Other financialization enabling policies
include tax advantages to attract (foreign) private investors and rewarding private investors with
a ‘golden visa’, giving them perm anent residence or citizenship in exchange fo r a minimum
amount of investment in property.
59
Overall, the increased role of financial actors in the housing market has a real impact on human
lives. The financialization of housing has been linked to foreclosures, evictions, inadequate and
unaffordable housing, with a discriminatory effect on lower-income households and other groups.
This is where human rights standards become relevant. As discussed in the previous section, the
right to adequate housing comes with various obligations for States. What this means exactly in the
context of financialization, will be discussed next.
3.2. HUMAN RIGHTS AS AN ANTIDOTE?
There are obvious links between the right to housing and financialization, although the latter is not
often considered from thestandpoint of humanrights.
60
More recently,however, humanrights bodies
have come to emphasise the connection between the human right to housing and the developments
presentedin the previous section. Labellingfinancialization as a human rightsissue is combined with
the clarificationof obligationsand recommendationsfor States and businessenterprises in this context.
In this section, the aim is to illuminate these as well as the ‘paradigm shift’ p romoted by the Special
Rapporteuron the right toadequate housing. Thisis not to say that a humanrights perspectiveforms the
solution for all the problems stemming from financialization, or eventhat there are no downsides to
such an approach.In this respect, it must especiallybe noted that the work of theSpecial Rapporteur is
to examine andmonitor developments and reporton these publicly, but doesnot lead to (quasi-legal)
obligationsfor States and companies.In any case, however, linkingfinancialization to rightsrhetoric,
allows for takingserious the housing interests of theindividuals involved.
On multiple occasions, human rights authorities have identified the risks as well as inherently
problematic features of financialization. A 2012 report by the then Special Rapporteur on the right
to adequate housing, focuses on the impact of finance policies.
61
It is noted that from the 1970s
Financialisationof Housing and its Impacton Human Rights: Housing and Homelessnessin the EU’ (FEANTSA,2017)<
https://www.feantsa.org/en/feantsa-position/2017/03/01/the-financialisation-of-housing?bcParent¼27> accessed 15
January 2020.
59. Report SR 2017 (n 2), paras 19-23.
60. Report SR 2017 (n 2), para 7.
61. UN General Assembly, Report of the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, and on the right to non-discrimination in this context (A/67/286, 10 August 2012).
Leijten and de Bel 103
onwards, ‘a growing consensus was formed, according to which Governments should renounce
their role as suppliers of affordable housing and become facilitators, supporting market demands
rather than directly providing outcomes’.
62
Yet market-based housing finance has failed to pro-
mote access to affordable housing, especially for the poorest.
63
According to the report, targeting
more affluent segments of society, mortgage financing in effect discriminates against low-income
groups;
64
policies often ‘redline’ the poor, who are required to pay much higher prices for financial
services, exposing them to financial risks inherent to global financial markets and indebtedness.
65
Leading to the conceptualisation of housing as an asset or commodity, housing finance policies
emphasise (while often failing to secure) the affordability aspect of the right to housing, while
neglecting the other elements highlighted in the CESCR’s General Comment no. 4.
66
For the right
to adequate housing, it is equally important that housing is located near educational and work
opportunities and that there is security of tenure. All these issues are human rights issues, and they
all are connected to financialization.
67
Moreover, of particular relevance is a 2017 report that deals specifically with financialization.
68
Special Rapporteur Leilani Farha introduces this topic as referring ‘to the way capital investment
in housing increasingly disconnects housing from its social function of providing a place to live in
security and dignity and hence undermines the realization of housing as a human right’.
69
The
report is considered timely in light of States’ implementation of the UN Sustainable Development
Goals: ‘If the commitment in target 11.1 to ensure access for all to adequate, safe and affordable
housing and basic services is to be achieved by 2030, it is essential to consider the role of
international finance and financial actors in housing systems’.
70
The right to adequate housing
is interconnected with the right to equality and non-discrimination and the right to life, while the
absence of effective human righ ts monitoring and systems of accountability in the sp here of
financial markets and the housing system is an important problem signalling how the role of
human rights is underestimated.
71
The problems stemming from financialization cannot be se en in isolation from the role of
business enterprises and privatisation trends. The latter are extensively dealt with in a report by
Philip Alston in his capacity as Special Rapporteur for extreme poverty and human rights.
72
62. ibid para 3.
63. ibid para 12.
64. ibid para 22.
65. ibid para 65.
66. CESCR, General Comment No. 4 (n 8) para 8.
67. Report SR 2012 (n 61) paras 48, 57, 66.
68. Report SR 2017 (n 2).
69. ibid para 1.
70. ibid para 8. Target 11.1 of the 2015 Sustainable Development Goals (SDGs) reads: ‘By 2030, ensure access for all to
adequate, safe and affordable housing and basic services and upgrade slums’. See
org/sdg11> accessed 15 January 2020. Obviously, this target is closely intertwined with the issue of financialization.
As our focus here lies on a human rights perspective, the SDGs will receive no further attention. See, on the gap
between both, for example, Thomas Pogge and Minu Sengupta, ‘Assessing the sustainable Development Goals from a
Human Rights Perspective’, Journal of International and Comparative Social Policy 2016, 83-97. The work of UN
Habitat will, for the same reason, also not be discussed here. See
united-nations-human-settlements-programme/> accessed 15 January 2020.
71. Report SR 2017 (n 2) paras 11, 12.
72. UN General Assembly, Report of the Special Rapporteur on extreme poverty and human rights (A/73/396, 26 Sep-
tember 2018).
104 Netherlands Quarterly of Human Rights 38(2)
According to Alston, the ‘redefinition of the public good in terms of freedom from government,
combined with the ‘‘liberation’’ provided by corporate efficiency and profitability, raises funda-
mental questions from a human rights perspective’.
73
While profit is the overriding objective in
privatisation, human rights considerations such as dignity, equality and non-discrimination, are
inevitably sidelined.
74
Rights-holders are transformed into clients, and human rights standards are
rarely included in privatisation agreements.
75
The report also mentions the issue of austerity, which
leads States to retreat from direct service provision. It shows that, ‘[a]lthough it is often suggested
that a fully human-rights-compliant regulatory regime can be transferred to the private sector’, this
is contradiction in terms.
76
Privatisation undermines democracy, preventing government super-
vision as well as public decision making on the allocation of public goods and services, such as
housing. In fact, ‘austerity policies closely linked to privatization have created fertile ground for
the rise of populist, anti-human-rights politicians’.
77
Given their expanding role, what can be required from companies in complying with human
rights standards? The first go-to here of course are the UN Guiding Principles on Business and
Human Rights.
78
The Principles start from the obligation of States to protect against human rights
abuse by third parties, which requires ‘taking appropriate steps to prevent, investigate, punish and
redress such abuse through effective policies, legislation, regulations and adjudication’.
79
This in
turn means that ‘States should set out clearly the expectation that all business enterprises domiciled
in their territory and/or jurisdiction respect human right throughout their operations’.
80
When they
contract with businesses to provide services that may impact upon the enjoyment of human rights,
adequate oversight is required for States to meet their human rights obligations.
81
According to the
Guiding Principles, business enterprises themselves are also required to protect human rights, to
avoid infringements and address adverse impacts.
82
They should have in place appropriate policies
and processes to achieve this.
83
Although (the right to) housing is not expressly mentioned, it is
thus clear that businesses involved in housing and housing markets should be mindful of human
rights.
84
On several occasions, responsibilities for companies are also mentioned elsewhere. First, in the
UN Habitat and UNHCR Factsheet on the Right to Adequate Housing it is noted that the respon-
sibility to respect all human rights, including the right to housing, is the basic expectation of
73. ibid para 3.
74. ibid para 82.
75. ibid paras 82, 83.
76. ibid para 84.
77. ibid para 86. See, on the relation between populist threats and human rights, the final section of this article.
78. OHCHR Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in its Resolution
17/4 of 16 June 2011.
79. ibid Guiding Principle 2.
80. ibid Guiding Principle 3.
81. ibid Guiding Principle 5.
82. ibid Guiding Principles 11, 13.
83. ibid Guiding Principle 15, see also Principles 16-24.
84. However, the Guiding Principles are not legally binding and their implementation has proven complicated. Efforts to
create a new convention on Business and Human Rights at UN level are ongoing, yet this is not the place to discuss the
pros and cons of this development and the implications for the right to housing. In the General Comment of the CESCR
on this topic (CESCR, General comment No. 24 on State obligations under the International Covenant on Economic,
Social and Cultural Rights in the context of business activities (E/C.12/GC/24, 10 August 2017)), housing is only
briefly mentioned and reference is made to the Report of the SR 2017 (n 2).
Leijten and de Bel 105
society towards businesses.
85
Besides, in her 2017 report, the Special Rapporteur on the right to
adequate housing concludes that ‘(b)usiness and human rights guidelines should, on a priority
basis, be developed specifically for financial actors operating in the housing system’.
86
The report
in fact devotes an entire section to business enterprises, explaining how various (voluntary)
initiatives on business and human rights, fail to focus on the responsibilities of financial corpora-
tions and private equity firms and the right to housing.
87
In an effort to fill this void, the Special
Rapporteur and the Working Group on Business and Human Rights jointly sent letters to Black-
stone Group, one of the largest real estate equity firms, and six countries (USA, Sweden, Spain,
Ireland, Denmark and Czech Republic.) The letter to Blackstone condemns the effects of its
business model that causes rent increases beyond the scope of household incomes, as well as
increasing evictions and higher maintenance costs for tenants, disproportionately affecting African
Americans.
88
The company is reminded that when performing a social function within the ambit of
human rights protection, certain human rights obligations are assumed. These concern access to
affordable housing and non-discrimination, while threats of eviction and evictions resulting in
homelessness must be avoided.
But let us return to what human rights norms are – first and foremost – about: guiding the
behaviour of States. The letters to the different countries leave no question about the specific
obligations for governments that have witnessed and actively contributed to the commodification
of housing. All of them are reminded of the fact that
according to international human right s law, your Government is requ ired to take progressive
measures, to the maximum of available resources, to ensure access to adequate housing for all
without discrimination. To address the issue of financialization and its impact on the enjoyment of
the right to housing, your Government must develop policies and laws that include a full range of
taxation, regula tory and planning measures in or der to re-establish housing a s a human right,
promote an inclusive housing system, prevent speculation and limit the extraction of profits at the
expense of tenants. This will require a transformation of the relationship between your Govern-
ment and the financial sector, whereby human rights implementation becomes the overriding
goal.
89
Besides, the letters note that a failure to take steps towards returning housing to its core function
as a social good ‘can only be regarded as a retrogressive step and accordingly puts the State at odds
with its obligations under international human rights law’.
90
Sometimes, in the context of the
85. See OHCHR & UN Habitat Factsheet (n 25), 37, referring to the United Nations Global Compact.
86. Report SR 2017 (n 2), para 66(d).
87. Report SR 2017 (n 2), paras 18, 19.
88. Letter from the Special Rapporteur and the Working Group on the issue of human rights and transnational corporations
and other business enterprises addressed to Blackstone Group (22 March 2019)
Issues/Housing/Financialization/OL_OTH_17_2019.pdf> accessed 15 January 2020.
89. Letters from the Special Rapporteur and the Working Group on the issue of human rights and transnational corpo-
rations and other business enterprises addressed to the Czech Republic, Denmark, Ireland, Spain, Sweden and the
United States of America (22 March 2019) 4,
tionHousing.aspx> accessed 15 January 2020. Note that for the USA, references to the ICESCR are omitted, as it is not
a party to the Covenant.
90. ibid.
106 Netherlands Quarterly of Human Rights 38(2)
ICESCR, retrogressive steps are (temporarily) allowed, for example in times of crisis and austerity,
yet these then have to meet various requirements, such as non-discrimination.
91
The letters are a reminder of the fact that even in spheres determined by markets and (the
interests of) big companies, the State’s task should not be limited to ensuring business enterprises
do their best to comply with human rights.
92
A broad range of measures is necessary, also,
according to the Special Rapporteur, transforming markets as well as the relationship between
State and market. States should establish laws and policies to ensure that housing related costs
are proportionate to income levels – they may not threaten the satisfaction of other basic
needs.
93
Legal and other frameworks should also be created to ensure security of tenure,
94
while it is necessary for States to review existing laws and policies related to foreclosure and
indebtedness, to ensure compliance with the right to adequate housing and the obligation to
prevent evictions resulting in homelessness.
95
Courts and other institutions, too, so the 2017
report of the Special Rapporteur continues, must be made to ‘recognize and apply the para-
mountcy of human rights and interpret and apply domestic laws and policies related to
housing and housing finance consistently with the right to adequate housing’.
96
In turn, this
means that rights-holders must have an opportunity to be heard; that complaints procedures
and access to effective remedies are provided.
97
Moreover, States are required to monitor the impact of housing policies on the right to adequate
housing.
98
When it becomes clear that a policy is detrimental to this right, policies should be
adjusted and rectified.
99
Importantly, not least because this is an immediate obligation under the
ICESCR, policies and practices may not be discriminatory; they should aim at bridging inequality
gaps rather than benefitting already advantaged groups.
100
States have an obligation to provide for housing in the form of, for example, social housing or
low-rental units for low-income households.
101
The provision of housing is not a task that can be
left to the market or to private institutions entirely or even to a large extent.
102
Already in 2012 the
Special Rapporteur called for a paradigm shift, away from financialization and towards a human
rights-based approach. The 2017 rep ort on financialization, referring to the 2030 Agend a for
Sustainable Development,
103
as well as the New Urban Agenda,
104
concludes that States need
to redesign housing finance and investment markets. To this effect, an international high-level
meeting of States and other stakeholders is suggested
105
and strategies developed should include a
range of taxation, planning and regulatory measures, ‘in order to re-establish housing as a social
91. Letter CESCR Chairperson 2012 (n 33).
92. Report SR 2017 (n 2), paras 12, 13.
93. Report SR 2012 (n 61), para 16.
94. ibid para 71(i).
95. Report SR 2017 (n 2), para 77(e).
96. ibid para 77(f).
97. ibid para 16.
98. ibid.
99. ibid para 19.
100. Report SR 2012 (n 61), para 71(d).
101. ibid para 18.
102. ibid para 71(h); see also Report SR 2018 (n 72) paras 22, 23.
103. UN General Assembly 2030 Agenda for Sustainable Development (A/RES/70/1, 25 September 2015).
104. UN Habitat III New Urban Agenda (A/RES/71/256, 2017)
105. Report SR 2017 (n 2), para 77(a).
Leijten and de Bel 107
good, promote an inclusive housing system and prevent speculation and excessive accumulation of
wealth’.
106
At the time of writing, new Guidelines on the implementation of the right to adequate
housing – a result of the work of the Special Rapporteur – are underway.
107
The Draft Guidelines
that are currently available, refer to the issue of financialization not only in relation to the obli-
gation of business enterprises, but also recommend that investments, development plans, privati-
zation and public private partnerships in the field of housing be reviewed in the light of the right to
housing.
108
Sceptics may say that the efforts just p resented mainly form a pape r tiger. It is true that
compared to the ICESCR’s General Comments, that are not legally binding yet authoritative,
and contribute to an integrated web of (non-)binding obligations and guidelines, the work of
the Special Rapporteur is advisory at most. The level of detail and breadth of the recommen-
dations of the Special Rapporteur cannot be transposed one-on-one to the interpretation of
binding legal norms such as those enshrined in the ICESCR. Rather, they form a strong voice in
favour of framing housing as a human rights issue and show the other side of the coin of
financialization. Developments of a more legal nature however are visible as we ll. Since the
entry into force of the Optional Protocol to the ICESCR in May 2013, the CESCR moreover
has the ability to hear complaints from (groups of) individuals on alleged violations of eco-
nomic, social and cultural rights in their own State. In 2017, it adopted views in the case of Ben
Djazia et al. vSpain, concerning a Spanish family with two minor children that was left
without shelter after they were evicted from their rental home when their private rental lease
hadexpired,andafterbeingrepeatedlydeniedaccesstosocialhousing.
109
This happened in
the context of the financial crisis and a general decline in national housing stock. The Com-
mittee condemned the regional Spanish authorities for the sale of public housing stock to
private investment companies at a time where there was increased need for social housing and
found the Spanish authorities had violated of Article 11(1) read separately and in conjunction
with Article 2(1) of the Covenant. This highlights that States are obliged to justify broader
policy measures impacting on the right to housing, such as the sale of public housing stock and
the use of tax revenue.
Not surprisingly, in the recent Concluding Observations of the CESCR concerning the report of
Spain, this issue is addressed as well. The Committee recommends, amongst other things, to ‘[t]ake
necessary measures to regulate the private housing market in order to improve the accessibility,
availability and affordability of adequate housing for persons with low incomes’.
110
More gener-
ally, and in line with the findings above, Concluding Observations now regularly refer to the
market and its effects on the unaffordability of housing. In the case of Denmark, concern is
expressed regarding ‘the shortage of affordable housing, which is exacerbated by the growing
trend in property acquisition by private investors who, under the 1996 Act on Temporary Regu-
lation of Housing Conditions, are authorized to increase rents up to the ‘‘value of the rented
106. ibid para 77(b).
107. The Draft Guidelines on the implementation of the right to adequate housing are available via
org/EN/Issues/Housing/Pages/GuidelinesImplementation.aspx> accessed 15 January 2020. The final Guidelines have
been published in February 2020.
108. ibid 16-17.
109. Ben Djazia et al v. Spain Communication No 005/2015 (CESCR, 20 June 2017).
110. CESCR, Concluding observations on the sixth periodic report of Spain (E/C.12/ESP/CO/6, 29 March 2018) para
39(b).
108 Netherlands Quarterly of Human Rights 38(2)
dwelling’’’.
111
Similar concerns are expressed regarding Germany,
112
yet the Committee’s worries
in this respect are not limited to European countries. In its Concluding Observations on Korea, it
recommends that the State ‘[p]ut into place mechanisms to regulate rising housing costs in the
private sector, including unreasonable housing costs, and provide for the renewal of rental con-
tracts to encourage longer-term security of tenure for tenants’,
113
and also in the Concluding
Observations published in the last years on New Zealand,
114
Argentina
115
and Senegal
116
mention
is made of increased rents and what should be done about this. Altogether, it can be said that today,
through the work of the Committee and the Special Rapporteur, but also through efforts of national
courts, other authorities as well as human rights institutions, the human rights dimension of
financialization can no longer be ignored. In the remainder of this article, some examples are
provided of where and how a human rights perspective is turned into action, and light is shed on the
importance of this discussion for emphasizing ‘majority rights’.
4. A HUMAN RIGHT TO ADEQUATE HOUSING FOR ALL
4.1. SOME HOPEFUL EXAMPLES
In a galvanizing speech, US Congresswoman Alexandria Ocasio-Cortez recently pointed out why
US housing is ‘barbarism’. When being asked about paying too much rent, her audience responded
loudly; speaking from her own experience, Ocasio-Cortez calls living conditions inhumane and
calls for a radical stop to commodification.
117
This is an issue that speaks to all, and a matter
politics cannot turn a blind eye to. A paradigm shift might be hard to achieve, but in line with
human rights efforts several developments are underway. Some examples are mentioned here.
What these show is that there is great potential for especially local governments to change
perspectives on housing policy, and that human rights rhetoric is helpful in this regard.
‘The Shift’ is a movement initiated by the Special Rapporteur on the right to housing together
with United Cities and Local Governments (‘UCLG’) and the Office of the High Commissioner for
Human Rights. It aims ‘to reclaim and realize the fundamental human right to housing – to move
away from housing as a place to park excess capital, to housing as a place to live in dignity, to raise
families and participate in community’.
118
By bringing together and supporting activities and
initiatives, it wants to push for new housing strategies at different government levels in line with
human rights, Agenda 2030 and the New Urban Agenda. In 2018, this human rights initiative has
111. CESCR, Concluding observations on the sixth periodic report of Denmark (E/C.12/DNK/CO/6, 18 October 2019)
para 49.
112. CESCR, Concluding observations on the sixth periodic report of Germany (E/C.12/DEU/CO/6, 12 October 2018)
para 54.
113. CESCR, Concluding observations on the fourth periodic report of Korea (E/C.12/KOR/CO/4, 6 October 2017) para
53(c).
114. CESCR, Concluding observations on the fourth periodic report of New Zealand (E/C.12/NZL/CO/4, 29 March 2018)
para 39.
115. CESCR, Concluding observations on the fourth periodic report of Argentina (E/C.12/ARG/CO/4, 12 October 2018)
para 47.
116. CESCR, Concluding observations on the third periodic report of Senegal (E/C.12/SEN/CO/3, 18 October 2019) para
30.
117. Now This, ‘Alexandria Ocasio-Cortez Explains Why U.S. Housing Is ‘‘Barbarism’’’ (11 September 2019)
www.youtube.com/watch?v¼F79mCbPcUDg> accessed 15 January 2020.
118. See the website of this initiative accessed 15 January 2020.
Leijten and de Bel 109
led to a Municipalist Declaration of Local Governments for the Right to Housing and the Right to
the City, that by now has been signed by 37 partner cities and three metropolitan entities.
119
This
Cities for Housing initiative identifies practical obstacle s to realising the right to a dequate hous-
ing related to commodification, deregulation, and a lack of national funding. On the ba sis of a
common diagnosis, signatory cities (as well as organizations and individuals) commit to local
actions and policies demanding a better regulation of the real estate market and increased funds
to improve the public housing stock. They want to further alternative mixed public-private
community-driven housing as well as urban planning that combines adequate housing with
inclusive and sustainable neighbourhoods, while enhancing cooperation amongst municipalities
that subscribe to these goals.
In the documentary ‘Push’, director Frederik Gertten follows Special Rapporteur Leilani
Farha when she investigates forces shaping the housing problem.
120
The award-winning film
is screened in cities around the world evoking discussion while reaching a broad audience.
Besides providing a platform for debate, an increasing number of cities publicly commits itself
to a housing as a human right strategy, proposing a role-back to financialization-permitting
policies and practices. Montreal, recently, has presented new rules that will compel developers
to build social and affordable housing, or otherwise contribute to a fund that will finance social
housing.
121
Another Canadian city, Toronto, is planning to close a loophole now allowing
landlords to evict tenants in rooming houses that they want to redevelop, by improving low-
income tenants’ protections from eviction.
122
In Barcelona, again a city facing a shortage of
homes, a new law was recently put to use resulting in the expropriation of an ‘empty’ flat owned
by a bank,
123
while Amsterdam has drawn up plans to ban the buy-to-let of new build homes on
city land.
124
The mayor of Malmo¨, which has also joined The Shift, announced a change of
perspective inspired by human rights, emphasizing the need for local governments to play a
leading role in this regard.
125
Also in Germany, interesting developments are taking place. In Munich, a so-called ‘Mieten-
stopp’ will bar increases in rent for 60.000 apartments for the coming five years.
126
In June 2019,
the Berlin senate voted in favour of what are seen as radical rent laws that also cap rents for the
119. See accessed 15 January 2020.
120. See accessed 15 January 2020.
121. See ‘Montreal aims to boost affordable housing as rental market tightens’ (CBC News, 12 June 2019)
cbc.ca/news/canada/montreal/montrea l-affordable-social-housing-bylaw-rules-1.5172133?__vfz¼me dium%3Dshar
ebar> accessed 15 January 2020.
122. See David Nickle, ‘Toronto council to consider new rules that would give rooming house tenants more protection’
(The Star, 29 May 2019)
would-give-rooming-house-tenants-more-protection.html> accessed 15 January 2020.
123. See James Badcock ‘Barcelona orders first expropriation of ‘empty’ flat owned by a bank’ (The Telegraph,24June
2019,) telegraph.co.uk/news/2019/06/24/barcelona-orders-first-expropriation-empty-flat-owned-bank/>
accessed 15 January 2020.
124. See Senay Boztas, ‘Buyer beware: Amsterdam seeks to ban buy-to-let on newbuild homes’ (The Guardian, 18 March
2019)
build-homes?CMP¼Share_iOSApp_Other> accessed 15 January 2020.
125. See ‘Housing crisis: Malmo¨ ’s mayor on the need for a new perspective’ (Sveriges Radio, 16 September 2019)
sverigesradio.se/sida/artikel.aspx?programid¼2054&artikel¼7299023> accessed 15 January 2020.
126. See Dominik Hutter, ‘Mietenstopp fu
¨r 60000 Wohnungen’ (Su¨ ddeutsche Zeitung, 25 July 2019)
sueddeutsche.de/muenchen/muenchen-wohnen-mieten-mieterhoehung-bremse-1.4539674> accessed 15 January
2020.
110 Netherlands Quarterly of Human Rights 38(2)
coming five years.
127
The Berlin ‘Mietendeckel’ remains the topic of heated debate, even though
in August 2019, the German Federal Constitutional Court (‘FCC’) considered the new rules
constitutional and not in conflict with the fundamental right to property protection and equality.
128
In its judgment, the FCC emphasizes the social role of housing and the risks of gentrification,
thereby clearing the path for measures that are sensitive to the right to adequate housing that not
only is affordable, but includes security of tenure and is located in the vicinity of educational and
work opportunities as well. Starting from these different examples, there is hope that the right to
housing not only contributes to protection against homelessness, but plays an important role in
improving housing conditions for all.
4.2. HUMAN RIGHTS PROTECTING ‘MAJORITIES’
As mentioned in the Introductio n, human rights are often understood to protect the rights of
minorities, that is, individuals or groups that in some way suffer from majority rule. In majoritarian
democracies, after all, political majorities determine the content of legislation and the priorities of
government action. The result may run counter to the interests of minorities, and it is then usually
up to courts to restore the balance and ensure that these are not affected disproportionally. Or so the
story goes. In this final section, in order to reflect on what it means for financialization of housing
to be perceived as a human rights issue, it is indicated why the majority-minority distinction in
relation to the protection of human rights is not that clear-cut. In social rights protection, moreover,
the idea that these rights should primarily benefit the (extremely) poor rather than the (slightly)
more well off as well, obscures the potential of a more inclusive view. Before explaining this,
however, the dimension of the current human rights backlash is added.
Human rights are under threat worldwide. With ‘human rights backlash’ this article does not
refer to the fact that many rights fail to be respected and the appalling consequences this entails.
Rather, this term signals a growing distrust of rights and the institutions protecting them. Not least
by populist leaders and nationalist movements, human rights are portrayed as ‘talismans raised on
behalf of minorities, including the most vulnerable and weak at the margins of the nation-state’.
129
This image erodes the achievements of human rights and the systems that have protected them over
the past decades. They result in a turn away from human rights rhetoric – overshadowing one of the
most auspicious achievements of our times with a general sense of disappointment. It is asked
‘what do your human rights, do for me?’, or assumed that human rights do not provide a solution to
actual problems people face on a day-to-day basis.
Yet the question could also be asked what our human rights can do for all of us, as this provides
a possible key to preventing erosion of human rights efforts and effects. Clarifying what human
rights actually do and for whom, allows for reconnecting them to individuals and groups that have
turned their backs on fought-hard systems of protection. Questioning the majority-minority
127. See Feargus O’Sullivan, ‘Berlin Will Freeze Rents for Five Years’ (Citylab, 19 June 2019)
equity/2019/06/berlin-rent-freeze-senate-vote-a ffordable-housing/592051/?utm_medium¼social&utm_term¼2019-
06-19T16%3A52%3A10&utm_campaign¼citylab&utm_content¼edit-promo&utm_source¼twitter> accessed 15
January 2020.
128. German Federal Constitutional Court 18 July 2019 1 BvL 1/18. The German press release can be found at
www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2019/bvg19-056.html> accessed 15 January
2020.
129. Moyn (n 12) 4.
Leijten and de Bel 111
assumption related to rights theory is linked to this: rather than solely securing the interests of small
minorities, human rights protect the interests of (cultural, economic and other) majorities, too. In
fact, political decision-making resulting in laws and policies cannot automatically be deemed to be
majority-friendly. Thus, courts, too, may step in to protect the rights of majorities whereas human
rights activists and institutions play a necessary role in increasing the voice of all those not
sufficiently heard in the political arena.
What does this mean for social rights, and the right to housing in times of financialization in
particular? Landau and Dixon argue that whereas it is generally suggested that the main aim of
social rights ‘is to ameliorate poverty by raising up the economic status of the poorest members of
society’, this is nor should necessarily be the sole focus.
130
Explaining the emergence of social
rights jurisprudence on behalf of higher-income groups, they show that what may appear as
‘capture’ is actually a form of pro-majoritarian review, that can moreover trickle down to the
poorest. An example is the protection of minimum social benefits when international agreements
forced countries to cut on social spending – which is considered to have furthered the financializa-
tion of housing as well. But:
The argument extends beyond situations in which domestic political institutions are unable to act
because of international political or economic pressure. It also applies to situations in which domestic
legislative and executive actors are subject to ‘blind spots’ and ‘burdens of inertia,’ which make them
consistently unresponsive to the demands for social protection, or redistribution, from a majority of
voters. In many developed economies, rising levels of income inequality, and the ‘compression’ of the
middle class, may also mean that blockages of this kind are increasingly likely in the conte xt of
legislation necessary to promote the realization of key social and economic rights.
131
In the discussion on the backlash against human rights, it is argued that criticism is partly
prompted by human rights (institutions) themselves. Proliferation of rights – both in number and in
scope – is said to be part of problem.
132
Accordingly, recognising human rights in more and more
policy fields with the effect that the room for democratic contestation is limited, requires caution.
In line with this, the high level of social rights codification and increasing possibilities for judicial
review,
133
could also be seen by some as proliferation in the pejorative sense of the term, drifting
rights away from their ‘natural’ purpose with the effect that overall they are perceived as less
inalienable and important.
134
It is true that there is an increase in the number of rights and their scope, and that interpretations
should not expand so as to no longer relate to the wording or purpose of the relevant norm. At the
130. Landau and Dixon (n 12).
131. ibid 122 (footnotes omitted). Corruption is one of the other reasons why majority protection may be illusory.
132. See John Tasioulas, ‘Saving Human Rights from Human Rights Law’ (2019) Vanderbilt Journal of Transnational Law
1167-1207; John Tasioulas, ‘Are human rights taking over the space once occupied by politics?’ (NewStatesman,26
August 2019)
tics> accessed 15 January 2020.
133. Jung et al (n 5).
134. Think of the recent launch of President Donald Trump’s Commission on Unalienable Rights, which has been critically
received, see for example ‘Why Trump’s new commission on unalienable rights is likely to upset the human rights
community’ (The Washington Post, 6 June 2019)
why-trumps-new-commission-unalienable-rights-is-likely-upset-human-rights-community/> accessed 15 January
2020.
112 Netherlands Quarterly of Human Rights 38(2)
same time, a fear for overreach should not result in returning to a negative-positive dichotomy in
the sense that only classical, negative rights protection that (presumably) leaves more room for
politics, is deemed right. This would put in question the hard-fought consensus that social rights are
as important as civil and political ones and that the two categories are interdependent. Social rights,
not in the least the right to housing, are of central importance to living a dignified life. This
involves more than having a roof over one’s head – an awareness that rightly impacts on politics
and democratic contestation.
Obligations stemming from the right to housing are not so much intended to limit space for
democratic decision making as a reminder that certain things should be political rather than left to
the market in the first place. Financialization or commodification has to do with a lack of political
ownership of the social good housing essentially is, having detrimental effects on the very poor and
lower and middle class groups alike. In this context, human rights actors are triggered to emphasise
the need for a human rights based approach. Instead of signalling overreach, this can shed light on
the situation of large numbers of individuals and benefit the image of human rights in a time when
this is much needed. An important effort in this regard is also made by national human rights
institutions, who tirelessly remind of the connection between our day-to-day problems and human
rights.
135
The obligations and recommendations stemming from rights such as the right to housing
have become manifold, and it is fair to ask whether human rights – and in particular social rights –
sometime aspire too much. Still, it deserves to be further explored what the positive effect is of
linking human rights to an issue that for many (literally) hits close to home. Rather than being at the
periphery of the human rights spectrum, a right to adequate housing could play a central role, even
if, or especially when, not only the needs of the most poor but also those of ‘majorities’ are at stake.
This does not mean that recognising (justiciable) rights alone will do the trick – they must be part
of a broader spectrum of laws, market regulations and other constellations ensuring social
protection.
136
5. CONCLUSION
Financialization is problematic from the perspective of human rights and the right to adequate
housing in particular. The right to housing is enshrined in various human rights catalogues and at
first glance may appear to provide only a very general starting point for combatting inappropriate
housing situations, discrimination, evictions and homelessness resulting from financialization. In
this article, it was shown that the right to adequate housing does provide concrete obligations and
expectations, and that meanwhile human rights actors have translated these to the specific context
of housing finance policies and the role of the State in relation to the market. Moreover, this has
triggered practical initiatives such as ‘The Shift’ that send a hopeful message to those who care
about adequate housing. This development was presented against the backdrop of the backlash
against human rights, and it was argued that the right to adequate housing underlines the need for
majority protection alongside minority protection, which in turn may reflect positively on the
endeavours and achievements of human rights.
135. Report SR 2017 (n 2), para 1.
136. See Jeff King, ‘The Future of Social Rights. Social Rights as Capstone’ in Katharine G. Young (ed.), The Future of
Economic and Social Rights (CUP 2019) 289 (arguing that social rights should be viewed as a capstone of a func-
tioning and just welfare state, and not as its foundation stone).
Leijten and de Bel 113
Authors note
Ingrid Leijten is an Assistant Professor at the Department of Constitutional and Administrative Law, Leiden
University Faculty of Law, the Net herlands (a.e.m.leijten@law.leidenuniv.nl ); Kaisa de Bel is an LLM
student International Criminal Law at the University of Amsterdam, the Netherlands (kaisa_de_bel@hot
mail.com).
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or pub-
lication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
ORCID iDs
Ingrid Leijten https://orcid.org/0000-0003-3020-0989
Kaisa de Bel https://orcid.org/0000-0002-3183-9023
114 Netherlands Quarterly of Human Rights 38(2)
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