Abstract
This article investigates and compares the influence of the international right to housing in Ireland and Spain, through the use of the functional comparative method. As part of this comparison, we created a set of indicators that aimed to identify evidence of the direct and indirect influence of the international right to housing on actions carried out at the national level to protect against evictions. In applying this method, we focus on three branches of state (the legislative, executive and judiciary) and civil society actors. Our analysis identifies instances of direct and indirect influence on actors in both countries and compares these results. We conclude that evidence of indirect influence is often more common than evidence of direct influence. We suggest this indirect influence may illustrate the role that the international right to housing may play behind the scenes in creating domestic eviction protections.
1 Introduction1
There is a staggering disparity between the aspirations of the international right to housing2 and the everyday experience of people facing housing insecurity. Despite the growing recognition of the international right to housing in human rights treaties,3 many people face eviction daily, resulting in adverse physical and mental health consequences,4 including relapse into drug use,5 a higher risk of suicide,6 and entry into homelessness.7
The right to housing, as developed through a range of treaties and soft law instruments, has been interpreted as guaranteeing both procedural and substantive components that aim to ensure people are adequately protected from unlawful and arbitrary evictions.8 Academic literature on the international right to housing has contributed to clarifying the content of this right9 and how international human rights law bodies have implemented it.10 This academic literature has also contributed to outlining a series of eviction protections stemming from this right.11 There has also been research revealing obstacles in the domestic realisation of the international right to housing and the protections against evictions,12 particularly regarding those in vulnerable situations.13
However, two main gaps exist in this literature. Firstly, previous research has predominately focused on one country.14 Fewer studies on the international right to housing have conducted comparative analysis of different domestic legal systems.15 Secondly, these studies often focus on one of the three branches of state (the legislative, executive or judiciary)16 or on civil society organisations.17 Few have considered the influence of the right to housing by systematically investigating the actions of more than one of these actors. Consequently, no comprehensive understanding of the connection between international eviction protections and domestic practice is supported by comparative analysis.
This article addresses these literature gaps by conducting an analysis of eviction protections in Ireland and Spain, which have not yet been compared in this context.18 Some comparative research has been conducted between Ireland and countries within the United Kingdom.19 Spain has been compared with other civil law countries such as Portugal, Malta or France.20 Carrying out a comparison of the influence of the international right to housing’s eviction protections in Ireland and Spain offers a valuable contribution to research on the right to housing.
These countries are interesting to study for two main reasons. Firstly, both have been confronted with high levels of home repossessions and evictions. Since 2010, Spain has reported annually more than double the evictions and repossessions recorded in 2008.21 While the number of repossessions due to mortgage arrears is relatively low,22 evictions are increasing in the lightly regulated Irish private rental sector.23 This is coupled with both countries’ ongoing homelessness crisis.24 Secondly, both countries are interesting to compare because they belong to different legal traditions. While the common law system has shaped Ireland’s property regime, Spain follows the continental civil law tradition. Additionally, while Ireland follows a dualist approach in the reception of international law, Spain is considered a monist state. Moreover, the quasi-federal Spanish territorial model contrasts with the unitary Irish legal system.25
This paper also contributes to the literature gaps by examining four key domestic actors in each country: the legislature, the executive, the judiciary, and civil society organisations. This holisitic approach that integrates these four actors has been inspired by literature that suggests the realisation of the right to housing does not depend solely on judicial enforcement but may result from the actions of different State actors working together.26 By looking at the three branches of the state we aim to gather a more complete picture of the influence of the international eviction protections on state practice. Moreover, the role of social movements has proven relevant in fostering compliance with international obligations27 and innovating the legal order in accordance with international human rights law.28 Thus, by including the civil society organisations in our analysis we also aim to gain a deeper understanding of how the international right to housing influences the domestic setting beyond the institutional framework.
In this paper, we use the functional comparative law method. To aid and guide us in this comparison, we developed a set of 16 indicators. Using this analytical framework, we aim to identify, compare, and explain the extent to which the international right to housing has shaped the interpretation and implementation of eviction protections by key domestic actors in Ireland and Spain.
The structure of the paper is as follows: section two outlines the functional comparative law method used in this paper. Section three delves into the indicators we developed and explains how we use the indicators as part of our analysis. Section four presents a harmonisation of the main eviction protections contained within the international and European human rights sources relevant to Ireland and Spain. Section five investigates the influence of the international right to housing in both countries by using the framework created in section three and four. A comparative analysis of the influence of the international eviction protections in both jurisdictions is offered in section six. Our conclusions are presented in section seven.
2 The Functional Comparative Method & Data Collection
Comparative law involves researching how two or more legal systems have responded to a legal issue.29 Comparative law researchers aim to determine the differences and commonalities in the solutions created by different legal systems and attempt to explain these differences or similarities.30 There are many ways of conducting comparative research.31 In this article, we adopt the functional comparative method as it looks beyond the law revealed by legal texts and considers the legal norms’ function.32 It is not limited to a simple analysis of legal texts but also considers the realities of law in action.33 Moreover, this method places a socio-economic problem as its starting point, allowing researchers to compare how different states have responded to the same issue.34 By placing evictions at the core of our study, we can investigate the extent to which the international right to housing has influenced four key domestic actors’ (legislature, executive, judiciary and civil society organisations) responses to this problem.
We propose a standardised set of indicators to systematically examine how the international right to housing influenced these domestic actors in Ireland and Spain. The model, discussed in section 3, attempts to illustrate the relationships between the international right to housing’s eviction protections and the domestic settings. Historical, political, cultural, and economic factors are considered to explain the similarities and differences between the influence of the international right to housing in both countries.35 Our method involves carefully reading and examining evidence of direct and indirect influence on the selected actors.
First,our analysis of legislative activity allows us to assess the incorporation of international commitments as stable and binding rules for all those subject to national sovereignty. The main sources used to analyse this branch of state are primary legislation, parliamentary papers and debates. To collect sources, we searched the legislatures’ databases and selected key legislation that focused on evictions and home repossessions or legislation that aimed to domesticate the international human rights law instruments containing the right to housing.36 We also searched the legislature’s databases for recent parliamentary papers and debates, which contained keywords such as “evictions”, “the international right to housing”, or “the right to housing.”37
Second, by looking at the executive branch of the states, we gain insights into the State’s housing policies and administrative implementation of eviction protections. We focused on the Irish national government and both Spanish central-State and regional governments as they set the housing policy focus. We analysed state “engagement with human rights state reporting and complaints procedures”, which we see evidenced by states submitting reports to international human rights monitoring bodies addressing housing rights and their participation in international committees or court proceedings if a person or group lodges a complaint against them. We also searched the official government databases for regulations, housing plans and housing schemes pertaining to the right to housing and eviction protections, using search terms such as “evictions”, “the right to housing”, “housing”, and “international human rights law.”38 Particular attention is given to the development of special measures aimed at developing law in accordance with the international right to housing eviction protections.39 Moreover, we also looked at statements by government representatives in social media or picked up by relevant newspapers in the selected jurisdictions.40 By examining these statements we gain insights into the media communication strategies and the open discourse and narratives around housing that the governments project to the general public. Finally, we also analysed government-initiated housing law research agencies, publications and scientific events.
Third, due to their authority in interpreting and enforcing international norms within the domestic legal system, court decisions are also essential in understanding the reception of international human rights law.41 While all court levels are interesting to consider in future analysis, we focused on peak courts in Ireland and Spain, as they can set strong legal precedents and often pass cases of domestic constitutional significance. We identified these cases by searching the peak court databases using search terms such as “evictions”, “the international right to housing”, or “the right to housing.”42 We also identified key cases by reading academic literature focusing on the right to housing in both jurisdictions.
Finally, we investigate the extent to which the international right to housing has influenced civil society organisations (ngo s, tenant or landlord unions or associations) in their push for improved eviction protections. Civil society organisations were picked according to their involvement in national or local housing matters. Particularly, we focused on groups that, through public campaigns or direct action, seek to foster alternative practices in addressing evictions. By looking at actors rooted outside the institutional framework, we can determine how the civil society’s conceptualisation and use of the right to housing differs from “dominant institutional rights conceptions.”43 This provides us with a deeper insight into the different channels through which alternative interpretations and practices contribute to the realisation of the international right to housing at the domestic level. The main sources used to analyse these actors include their manifestos, information campaigns, protest material, interviews, and statements on their websites, social media and newspapers.
Despite being interrelated, by treating each actor as a separate analytical unit, we better understand how the right to housing can influence the legal system. For instance, identifying whether international human rights have influenced one actor more than another or whether an actor’s behaviour has facilitated or hindered the influence of international human rights law on other actors. We have chosen to focus on documents written by and actions carried out by the domestic actors between 2003 and 2023. We chose this time frame as it represents a period of significant developments in the international right to housing and a time that encompasses both countries’ housing crises.
The collection of data was not exhaustive, but designed to target relevant sources produced by the key domestic actors. While we included a wide range of sources, we did not collect all pieces of legislation, case law, regulations and other documents or statements attributable to the domestic actors. This selective approach represents a limitation insofar as our analysis does not provide a quantification of the instances that meet the indicators. Nevertheless, it provides qualitative empirical evidence of influence on the different actors observed. This first approximation opens the door to future quantitative analyses of influence.
Another limitation of our study is the inability to prove causality. However, as Cassel has noted, we cannot individualise causation since many factors play a role in developing international and national rights law.44 Our study focuses on finding evidence of direct or indirect links between the international right to housing and the behaviour of the selected actors. These links may be due to different motivations, such as authority or legitimacy, normative hierarchy or political strategies. We do not aim to focus on just one of these motivations but to describe the existence of these connections.
3 Indicators of Influence
Our study adopts the term influence to investigate the relationship between the international right to housing and the domestic legal setting. We use indicators to find traces of the influence of the international right to housing eviction protections on four key domestic actors in Ireland and Spain. In this section, we provide definitions for key terms used in our paper. We define “influence” and outline the indicators used in our country analysis.
3.1 Terminology
There is limited consensus in previous research on the terminology used to understand or describe the relationship between international and domestic law.45 Concepts such as “impact”,46 “effectiveness,”47 “implementation”,48 and “compliance”49 have been used to investigate the symmetry between international human rights law developments and subsequent domestic legal or social changes. These concepts have been defined to examine many different expressions of the relationship between international and domestic law.
Effectiveness has been employed to express the causal nature of the link between human rights and any measures implemented in the domestic legal setting aimed at their enforcement. In his study, Krommendijk defines effectiveness as “the policy, legislative, or other measures (…) taken at the domestic level as a result of” the international measure.50 Coomans & Ruiz Díaz-Reixa51 state that effectiveness “relates to the changes in behaviour that would otherwise not have occurred.”52 But effectiveness has also embraced other shades of meaning. Looking beyond the legal and policy level, Papadopoulos defined the concept as the “social realisation (as a describable fact, reality or status) of what human rights cover and the process through which human rights causally bring about the desired change in (state or social) behaviour or policy.”53 Von Staden explains that effectiveness focuses on causality, searching for a causal connection between the international obligation and the related outcome.54
Other researchers have aimed to understand the link between international human rights and domestic actors by focusing on compliance, or the “level of fulfilment of human rights obligations.”55 This concept does not look at the nature of the relationship itself but focuses on whether domestic legal systems have achieved the goals set by international human rights law.56 Von Staden describes compliance as examining the extent to which a State conforms to the actions required or prohibited by an international obligation.57
Impact has been used to examine the socio-political repercussions of the human rights law discourse and the socio-political drivers pushing for changes to align domestic law with international obligations. The definition of impact has been described as “somewhat cloudy,” as Von Staden suggests that it combines the concepts of compliance and effectiveness.58 Coomans & Ruiz Díaz-Reixa defined impact as “the extent to which the outcome of [a decision by a human rights treaty body] has been picked up by (…) the media and ngo s” or political actors such as “the Parliament and local authorities.”59 Heyns and Viljoen opted for a broader interpretation and defined the impact of human rights treaties as “any influence that these treaties may have had in ensuring the realisation of the norms they espouse in the individual countries.”60
We aim to capture the nuances addressed through these various concepts by investigating the influence of the right to housing. We define influence as the extent to which the international right to housing has inspired domestic actors’ strategies, practices, and discourses in conceptualising, interpreting, and applying eviction-related domestic legislation and practices. On the one hand, this definition encompasses effectiveness as it identifies changes in domestic actors’ behaviour (legislative, policy, etc.) linked to international standards.61 On the other hand, it also relates to the concept of impact as we look at socio-political reactions to international human rights law. This is expressed through litigation, debates in media and parliaments,62 and the capacity of international human rights law to “incentivise the realisation”63 of the “norms” that the treaties “espouse in the individual countries.”64 Finally, we can also investigate how countries comply with international law by focusing on influence.
The term “influence” allows us to examine the relationships between international human rights law and national legal systems as a complex spectrum encompassing direct and indirect interactions. Sand acknowledges that international human rights law has “a strong direct and indirect influence over the respective areas of national legal regimes.”65 Other authors have deeply investigated indirect channels. Although they have introduced these concepts, it is difficult to identify concrete examples of indirect influence. Through the lens of “indirect effect”, Douglass Cassel explains that “international articulation of rights norms has reshaped domestic dialogue in law, politics, academia, public consciousness, civil society, and the press.”66 Krommendijk has also acknowledged the existence of more “subtle and often indirect impact” of international human rights law mechanisms and the significance this can have on the domestic legal setting.67 By looking at direct and indirect influence, we can broaden the scope of analysis and examine how human rights norms “[inform] constitutional or legislative protections,”68 even without traceable connections.
In this study, we conceptualise direct influence as a relationship that can be identified through the incorporation of human rights treaties or soft law sources into domestic law (through the passing of domestic legislation that gives effect to the international source), referrals to international instruments or explicit quotes of international texts in the documents produced by the domestic actors. Indirect influence attempts to investigate how the international right to housing may have shaped/inspired the actions of domestic actors but where there is no visible link. We argue that indirect influence may be identified by firstly looking at the use of concepts (i.e., forced evictions) and standards (i.e., proportionality test) that are consistent with those developed in international human rights law.69 Secondly, we argue that indirect influence can also be identified by discerning mentions of international sources in documents issued during decision-making processes (i.e. legislative debates) which are not reflected in the actor’s final output.
3.2 Identifying Influence Through Indicators
Indicators are pieces “of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation.”70 Human rights indicators have been used to measure governance compliance and individuals’ enjoyment of a right71 and to monitor the realisation of the right to housing and state “compliance” with international obligations.72 They have also been used by academics to investigate the “effectiveness”73 of a human right and to analyse the “impact” and “effectiveness” of UN human rights treaty bodies’ state reporting procedures in domestic contexts.74
In this paper, we use indicators to identify evidence of direct and indirect influence of the international right to housing eviction protections. We focus on the four domestic actors identified as relevant in the process of the realisation of the right: the legislature, the executive, the judiciary, and civil society organisations. We have conducted our analysis by examining the documents described in section 2.
We created a set of indicators (Table 1) by considering how the influence of the right to housing might be evidenced in the domestic legal system. We do not intend to quantify the influence or give an exhaustive description of how influence may be identified but to investigate whether both direct and indirect influence can be detected. We aim to set a foundation for future research into these issues. For this, we followed a two-step procedure. Firstly, we thoroughly examined the content of the right to housing and the eviction protections it encompassed. Secondly, we determined the ways in which influence could be exhibited in the behaviour of each of the selected actors and established the indicators accordingly.
Kalantry, Getgen and Koh advise caution when applying the same indicators to two countries.75 Thus, while our indicators are formulated in the most concrete way to identify singular expressions of influence in the selected sources, we also opted for general or abstract formulations, giving room to the different social, political, and legal contexts of Ireland and Spain.
The indicators used in this article were designed to identify, through their application, evidence of both direct and indirect influence. Direct influence indicators have been formulated to signal intentional, formal, and express links with international human rights law, such as citations or references in texts. Indirect influence indicators have been formulated to identify language or practices aligning with international human rights law interpretations or approaches lacking references to any source document. However, the boundaries between these indicators are non-binary and are often hazy. Some indicators could be considered as both direct or indirect. For example, indicator 4 could be considered to be both direct (as it involves a direct citation) and indirect (as it may have played a role in the creation of the eviction norm but have not been mentioned in the actual product created by the actor). However, for the sake of this analysis, we decided to stick with a binary division between direct and indirect influence. There are limitations to assessing the influence of the right to housing on domestic actors in this manner. Notably, ascertaining a causal influence using indicators is a challenging feat. When not clearly stated, we cannot say that a decision relating to the international right to housing directly influenced the State.
Our research, therefore, aims to go beyond a focus on direct citations and ratifications. As a result, we do not aim to merely provide evidence of causal links between human rights law developments and changes in behaviour in the domestic legal systems. We explore the many ways, both direct and indirect, in which the right to housing may influence a legal system beyond the obvious formal links.
4 The International Right to Housing and Eviction Protections
To guide our analysis of the influence of the international right to housing’s eviction protections in domestic legal systems, we first aim to clarify the core eviction protections recognised in the global and regional human rights instruments binding on Ireland and Spain.76 Each instrument has its own monitoring institution tasked with interpreting the instruments and ensuring state compliance.
The international right to housing’s eviction protections have been developed in various treaty monitoring institutions’ decisions settling complaint procedures; conclusions to state reporting; and interpretative guidelines provided to orient States in meeting their international obligations. Table 2 illustrates the international and regional institutions which have been forerunners in the development of the international right to housing eviction protections in Europe. This table shows the international sources that the relevant human rights bodies used to develop a right to housing or aspects of this right and whether they have an individual or collective complaint procedure, state reporting or interpretive guidelines.
Through their complaint procedures, treaty monitoring institutions have developed eviction protections. The institutions issue binding decisions that interpret the eviction protections stemming from the international right to housing. The complaint procedure varies depending on the institution. Both cescr and ECtHR hear individual complaints which are brought against state parties regarding violations of the right to housing.78 For its part, the ecsr deals with complaints brought against state parties by trade unions and ngo s (collective complaints).79 All three bodies have developed several eviction protections in response to these complaints.80
The cjeu case law on mortgage repossessions has also fostered the establishment of due internal procedures protecting creditors affected by the loss of their own home.81 Although housing is not a competence attributed to the European Union,82 EU law has attempted a harmonisation of mortgage markets rules and contributed to defining a common urban policy through consumer and environmental protection competencies83 and soft law84 under the umbrella of the cfreu. This has facilitated cjeu’s approach to housing matters in a manner consistent with international human rights law. The Court made this connection apparent in Kušionová vs. Smart Capital, interpreting EU law in accordance with the “fundamental right to accommodation” set in art. 7 of the cfreu.85 This interpretation resonates with the ECtHR’s interpretation of Art. 8 echr.86
Eviction protections have also been developed through the conclusions of treaty monitoring institutions in state reporting procedures. This procedure is carried out by state parties to the cescr and the resc. States are obliged to periodically report to the monitoring institutions on their performance concerning their international obligations. In response, the institutions issue Concluding Observations (UN cescr) and Conclusions (ecsr), assessing the level of states’ compliance and guiding them towards law reform to ensure they conform with the legal instruments. It has been precisely in these documents that the ecsr has made its most clear enunciation of the eviction protections arising from Articles 16 and 31 resc.
Similarly, the Special Rapporteur on the Right to Adequate Housing, commissioned by the Human Rights Council (UN), has the authority to conduct country visits in which they have elaborated on the required eviction protections.87 However, these assessments are not periodic in nature but are set at the discretion of the UN Special Rapporteur.
Finally, interpretative guidelines issued by the different institutions have contributed to a deeper understanding of eviction protections stemming from the international right to housing. Albeit those documents are not binding in nature, they have informed the way the right has been interpreted in other procedures. Of note is the guidance provided by the UN Special Rapporteur on Adequate Housing, significantly contributing to clarifying the international obligations on the matter by addressing other bodies’ interpretations.88
There is a certain level of inconsistency in the extent to which the different institutions have developed eviction protections. These inconsistencies can be explained by reference to three aspects: scope, competencies and interpretations of the treaties. Firstly, there are variations between the scope of protection of the right to housing in the treaties.89 For example, the resc contains an explicit right to housing, while the echr does not.
Secondly, the authoritative force of the interpretative bodies differ, their development of the right to housing protections may have a different influence on the state party. Some monitoring bodies must adopt a higher level of abstraction in their assessment by taking a holistic view of the state’s legal system (for example, the ecsr) and suggesting legalistic improvements that should be adopted. In other instances the institutions must be more concrete and precise in their descriptions of the eviction protections as they apply it to a particular case (for example, the ECtHR).
Finally, some interpretations are laid out in directly binding instruments, while others have been developed through soft law. The former are important insofar as they inspire the law-making process of other institutions. Bodies such as the cescr or the ecsr frequently rely on the authoritative but (non-binding) General Comments for their binding decisions on individual and collective complaints. It is important, however, to understand the range and scope of effectiveness of these instruments. Protections delimited in decisions regarding one state that are adopted based on the interpretations established in a soft-law instrument may not be directly predicable for another state.
A holistic view of these institutions’ various outputs makes some core protections arising from the international right to housing evident. This standard core set of protections has been systematised by literature focusing on both the UN syste90 and the different levels of protection within regional European law.91 Eviction protections can be understood as ex-ante (focused on the procedure before an eviction occurs) and ex-post (aimed at mitigating the adverse effects of an eviction).92
4.1 Ex-ante Eviction Protections
The ex-ante eviction protections stemming from the international right to housing aim to ensure evictions are carried out fairly and justly and respect residents’ rights. They include the obligations to: ensure tenants are provided with adequate notice; ensure evictions are not carried out under adverse weather conditions; carry out genuine consultation with those affected before an eviction; provide legal aid and assistance to challenge an eviction order before the court; and finally to ensure that a court or independent tribunal can analyse the proportionality of an eviction.93
Firstly, the obligation to provide residents with adequate notice before an eviction ensures that residents have time to pack their belongings and plan their subsequent course of action. The ecsr has interpreted Articles 16 and 31 resc as requiring two months notice before an eviction occurs.94 While the UN cescr and Special Rapporteur do not seem to specify a particular amount of time, they have identified “adequate and reasonable notice for all affected persons prior to the scheduled date of eviction.”95 The ECtHR, for its part, does not consider a particular timeframe, but it seems to assess notice in the broader context of a fair procedure.96 There is no particular consideration of this aspect in the cjeu case law.
Secondly, evictions cannot be carried out under particularly adverse or bad weather conditions unless consented to by the affected party.97 The UN cescr or ecsr do not provide a specific definition of adverse or bad weather conditions. However, it may relate to night-time or weather conditions that are dangerous for the physical integrity of the persons concerned. The lack of concreteness provides deference to the States to adjust this protection according to their climatic conditions. The UN Special Rapporteur is clearer, stating that “evictions must not take place in inclement weather, at night, during festivals or religious holidays, prior to elections or just prior to school examinations.”98 Neither the cjeu or the ECtHR seem to have confronted this issue directly.
Thirdly, States must ensure that genuine consultation is carried out with those affected prior to an eviction. The UN cescr interpreted Article 11 as obliging state parties to “take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.”99 The UN Special Rapporteur also endorsed this requirement by stating that it gives those threatened with evictions the opportunity to discuss alternatives.100 Moreover, in their interpretation of Articles 16 and 31, the ecsr concurs that there should be genuine consultation with those affected before a mass forced eviction occurs.101 The ECtHR endorses the development of this protection in human rights law but does not develop the concept further.102 The cjeu, on its part, has not discussed this aspect in its case law.
Fourthly, states are obliged to provide “legal remedies”, allowing those affected to oppose unfair evictions.103 The cjeu case law interpreting the Directives on abusive clauses (Directive 93/13/cee)104 and mortgage contracts (Directive 2014/17/EU)105 as ensuring the establishment of a due process in the context of home repossessions could be read in connection with this procedural obligation. This is evidenced in the Kušionová vs. Smart Capital case.106 However, mere recognition of procedural rights is not enough to ensure effective access to courts. Therefore, according to the cescr states must also provide “legal aid to persons who are in need of it to seek redress from the courts” where possible.107 This is also endorsed by the UN Special Rapporteur on Adequate Housing108 and the ecsr.109 States must ensure residents have the necessary socio-economic conditions (financial resources, time, etc.) to challenge an eviction order.110 The ECtHR does not deal with these protections substantially.
Finally, evictions should only be carried out following an order from an independent tribunal.111 Intertwined with this requirement is the necessity for courts to conduct a proportionality assessment of evictions. In analysing the proportionality of an eviction, courts must assess if there is a reasonable relationship between the aims of the eviction and the means used to achieve it, considering its impact and consequences on those affected.112 The ECtHR has identified three factors that must be observed to ensure an eviction is proportionate.113 These include ensuring the eviction was carried out under due course of law, that it pursued a legitimate aim and that it is necessary in a democratic society.114 The ECtHR has applied this analysis to evictions carried out on public or social housing tenants but has deferred its application in the context of evictions arising in relationships between private individuals to the responsibility of national legislatures.115 The UN cescr has engaged substantially with proportionality assessment in their individual complaints procedure.116 Albeit to a lesser extent, the ecsr and the UN Special Rapporteur have highlighted that States should ensure proportionality forms part of their eviction procedures.117 Although the proportionality analysis is frequently used by the cjeu when weighing overlapping interests, the court has not ruled on its application in relation to evictions.118
4.2 Ex-post Protections
Ex-post protections aim to protect the rights of people after an eviction is carried out. These protections include the obligation of states to provide compensation in the case of illegal evictions119 and ensure that alternative accommodation is available for those who have been evicted.
Firstly, states are obliged to ensure compensation in the case of illegal evictions.120 The UN Special Rapporteur has noted that this compensation should be fair and just and should be provided before the eviction.121 Neither the ecsr nor the UN Special Rapporteur has described the amount of this compensation.122 However, the UN cescr has acknowledged states must provide either alternative accommodation or compensation to victims of evictions, enabling them to acquire adequate accommodation.123 The ECtHR has discussed this in relation to Article 1 Protocol One to the echr and Article 8 echr, claiming that compensation should be provided in cases of evictions and the forced sale of a property “in so far as there is a causal link between the violations and the damaged suffered.”124 They have also awarded compensation to an applicant where there have been particular feelings of anxiety and distress due to the sale of their property and the proceeding eviction from their home.125 The cjeu has not interpreted any specific guideline concerning illegal evictions. Nevertheless, private property is protected by EU law under Art. 17 of the cfreu, and the entitlement to “fair compensation” if deprived of that property. The cjeu Kušionová decision should be highlighted in this regard, as the Court established a “meaningful link between regulations concerning property rights, entitlements to credit and the protections enshrined in the cfreu through the prism of the Directive on unfair terms”.126
Secondly, states should ensure evicted people have been offered suitable alternative accommodation.127 This implies that when “those affected are unable to provide for themselves”, states “must take all appropriate measures to ensure that adequate alternative housing, resettlement or access to productive land is available.”128 However, the ECtHR does not equate this “with free housing.”129 While the States have broad discretion in defining the strategies to provide for this protection,130 it is clear that the alternative housing should be proportional to the urgency of the situation of those affected,131 and must not unjustifiably disrupt family units or endanger the well-being of people in vulnerable situations.132 In this regard, the cescr has also clarified that providing mere temporary shelter, insofar as it does not meet the standard of adequate housing,133 is only appropriate when permanent adequate housing is not possible and should never become a definitive solution.134 The ecsr states that alternative accommodation should be offered in instances of forced evictions135 and that evictions should be postponed until a tenant has access to alternative accommodation.136 The UN Special Rapporteur also states that “sufficient alternative accommodation” should be provided immediately after an eviction.137 The cjeu has not ruled on this issue, because the EU has no specific competence in housing matters. However, EU law has taken some steps in this direction. It is important to bear in mind in this regard paragraph 19.2 of the European Pillar of Social Rights, which establishes a commitment to ensure that vulnerable people have the right to appropriate assistance and protection against forced eviction.
5 Influence of the International Right to Housing’s Eviction Protections in Ireland and Spain
In this section, we use the indicators developed in Section 3 and the eviction protections outlined in Section 4 as a theoretical framework to analyse the influence of the right to housing in Ireland and Spain.
5.1 Influence in Ireland
Despite the absence of a right to housing under Ireland’s most important human rights instrument, Bunreacht na hÉireann (the Irish Constitution), there have been calls among civil society to increase the protections available to Irish residents to avoid the loss of their homes. Consequently, significant legislative, executive, and judicial efforts have emerged to develop housing protections. Moreover, there have been pushes to include a right to housing in Bunreacht na hÉireann. Nonetheless, evidence of the influence of the international right to housing on the development of eviction protections is scarce.
Two factors are important to consider when examining the role of the international right to housing in Ireland. Firstly, Ireland is a dualist state meaning international human rights law treaties containing the right to housing are not part of Irish law until incorporated into legislation by the Oireachtas. The Oireachtas is responsible for making laws in Ireland and is comprised of the President of Ireland, Seanad Éireann (the upper house of the Oireachtas) and Dáil Éireann (the lower house of the Oireachtas).138 However, EU law and any eviction protections created by the cjeu in its interpretation of EU law or cfreu are directly applicable.139 Secondly, Ireland is one of the “most centralised countries of the oecd.”140 The Department of Housing, which a government minister manages, is responsible for public housing policy. Furthermore, this Department oversees the Residential Tenancies Board (which regulates the residential rental sector) and Local Authorities (which are responsible for social housing and planning permissions).
5.1.1 Legislature
Over the last two decades, there has been an increasing number of legislative reforms aimed at increasing the security of tenure for residents, including the creation of enhanced eviction protections. Direct influence at the legislative level can be identified through indicator 1, which is the signing, ratifying or direct incorporation of treaties or protocols containing the international right to housing. Notably, the Irish legislature incorporated the echr into Irish law through the European Convention on Human Rights Act 2003 (echr Act).141 This act rendered Article 8 echr rights justiciable before Irish courts, requiring the courts to interpret and apply laws in a manner compatible with the echr, and requiring the State to perform its functions per the echr’s provisions.142 Other human rights instruments containing the right to housing have not been incorporated into Irish law. Ireland signed and ratified certain provisions of resc, along with the Additional Protocol, in 2000.143 When ratifying this treaty, Ireland accepted Article 16, which safeguards the “economic, legal and social protection of family life” including the provision of family housing but not Article 31, the right to housing provision.144 Moreover, this treaty has not been incorporated into Irish legislation. This parallels the State’s approach to the icescr, whereby the treaty does not form part of Irish law despite being ratified in 1989 and the signing of the Optional Protocol in 2012.145
We did not find evidence of direct references to the international right to housing’s eviction protections in the primary Irish legislation related to evictions or home repossessions (indicator 2).146 However, we found instances of indirect influence through indicator 3, as the Irish legislation articulates eviction protections in a manner that seems consistent with those developed in international law. For example, the Land and Conveyancing Law Reform Act 2019 requires that in the proceedings relating to repossessions of mortgaged land, the proportionality of the order must be considered. This includes an analysis of the circumstances of the mortgager and their dependants, along with an inquiry into the availability of alternative accommodation.147 In addition, Ireland observes a right to adequate notice before an eviction and ensures tenants can challenge eviction orders148 The recent reforms to allow for Tenancies of Unlimited Duration149 and the covid-19 eviction moratorium can also be read as examples of indirect influence.150 Moreover, some Bills (legislative proposals which have either not yet been passed or have been rejected by the Oireachtas) brought before the Dáil may also be seen to reflect the international right to housing as some attempt to limit the grounds on which landlords can evict tenants,151 stop evictions into homelessness152 and tackle the issue of family homelessness.153
We also found evidence of influence on the Irish legislator as many references to the international right to housing were made during the legislature’s session proceedings (indicator 4). For example, the relevant international obligations were discussed in a Dáil’s Joint Committees meeting discussing the right to housing.154 Furthermore, former UN special rapporteur Leilani Farha spoke at one of these meetings, signalling a possible indirect influence of the international right to housing on the legislature’s actions.155 Instances of indirect influence are also observed in Seanad Éireann through indicator 4. One Senator described the right to housing as a “basic human right” and argued that Ireland should explicitly recognise it in Irish law.156 The right to housing obligations under the resc and icescr were also cited.157 There are also mentions of the UN Special Rapporteur on Adequate Housing,158 along with Ireland’s violations of Article 16 resc.159 Moreover, we found evidence of indirect influence through indicator 4 in debates concerning a Bill attempting to incorporate the icescr’s obligations into Irish law.160 The international right to housing’s eviction protections were explicitly mentioned during these debates, with one member of the Dáil commenting that incorporating this treaty could change the dynamic of the constitutional right to property being “used to weaken anti-eviction legislation.”161 Another member noted the icescr’s “comprehensive and substantive right to adequate housing” and its “safeguards against forced evictions.”162
In addition, indirect influence is also evidenced by the commission of research groups, agencies, publications and events aimed at understanding the international right to housing and eviction protections at the request of the legislature (indicator 5). Notably, the Oireachtas’s Research Service has been tasked with reporting on the binding international right to housing obligations with a particular focus on evictions of members of the Travelling community.163
5.1.2 Executive
The Irish executive branch is comprised of An Taoiseach (head of the Irish government) and various government ministers. We found evidence of direct influence through indicator 6, as the Irish government regularly engages with international human rights state reporting and complaints procedures.164 This illustrates a willingness to engage with the international right to housing. However, the ecsr stated in their 2019 Conclusion that Ireland is not in conformity with Article 16 of the resc due to inadequate eviction protection for Traveller families.165 Likewise in the UN cescr’s 2015 Concluding Observations concerns were raised about “the overall difficult housing situation” in the country.166 The UN cescr sought clarification about how revised legislation addresses discrimination of that marginalised groups.167 Moreover, they requested information relating to the effectiveness of the State’s plans and programmes to remedy the housing crisis, including the affordability and availability of housing.168 The State responded to these requests with some statistical information and a further explanation of their housing plans.169
We did not find direct influence on the Irish executive through indicator 7, which aimed to identify references or referrals to the international right to housing in Government regulations or housing plans. No direct references to the right to housing were found in documents defining and supporting housing policies concerning people affected by evictions.170 Moreover, no references to the right to housing nor the eviction protections were identified in the government’s housing action plan, which guides the State’s housing approach until 2030.171
We identified government regulations and plans articulating eviction protections in a manner consistent with the international right to housing, evidencing indirect influence (indicator 8). The creation of the Cost Rental tenancies in 2022 was a government initiative to provide secure and long-term rentals to tenants, whereby eviction would only be allowed on limited grounds.172 While the direct influence of the international right to housing on this scheme cannot be detected, we see that the government’s actions were oriented towards strengthening the security of tenure for residents, which aligns with the aspirations of the international right to housing.173 Another scheme, Abhaile, aims to help mortgage holders in arrears to keep their homes.174 By availing of this scheme, homeowners can access a range of state-funded supports, including expert advisors, to help them solve their financial difficulties. Again, while there is no evident influence of the international right to housing, this measure is oriented towards providing residents with security of tenure. Moreover, the Mortgage to Rent Scheme allows people in severe mortgage arrears to voluntarily give up home ownership, allowing an Approved Housing Body175 to buy the property, who then rents it to the previous owner at an affordable rent.176 This scheme aims to keep people in their homes and provide homeowners with tenure security during times of financial difficulties. In the Government’s 2021 report to the UN cescr, they mentioned this scheme when discussing policies that are in line with Article 11.177 Moreover, the government has defended the Abhaile scheme before the ecsr, claiming that it supports the realisation of Article 16 resc in Ireland.178 This illustrates that the executive believes they are interpreting domestic law in a manner consistent with the right to housing.
Finally, we did not find traces of influence in government representatives’ statements discussing the right to housing and evictions (indicator 9). However, the Taoiseach at the period of analysis of this research, Leo Varadkar, discussed the right to housing in the context of the Constitution. He acknowledges that the argument that constitutional property rights pose a barrier to the realisation of a right to housing has been “overstated” in the past.179 According to Varadkar, property rights may be limited in favour of policies for the common good, such as rent pressure zones.
The commissioning of agencies and scientific events by the Irish Government aimed at understanding the international right to housing also constitutes evidence of indirect influence (indicator 10). Notably, the Housing Commission was tasked by the Department of Housing to explore options for the wording of a constitutional right to housing. They hosted a conference on this topic in which they discussed international sources of the right to housing.180 Despite this, there have been delays in setting a date for the housing referendum. However, the wording of the referendum has been proposed by the Housing Commission.181
5.1.3 Judiciary
We focused our study on two peak courts in Ireland: the High Court, which hears all appeals except in criminal cases and the Irish Supreme Court (isc), which hears appeals from the High Court and Court of Appeal only if it is in the interest of justice (Article 34.5.4 of Bunreacht na hEireann) or involves a matter of general public importance.182 We found evidence of both direct and indirect influence of the international right to housing on the Irish judiciary.
Direct references to the international sources (indicator 11) were found in the Irish peak courts case law, but only in relation to the echr. By incorporating the echr into Irish legislation, the legislature allows the isc to interpret and apply Article 8. A notable example of the direct influence of the international right to housing can be seen in Clare County Council v McDonagh.183 In this case, the isc noted the direct influence of Article 8 on eviction protections in Ireland and seemed to have “integrated Article 8 jurisprudence on the right to respect for home” with the constitutional right protecting the “inviolability of the dwelling”.184 However, the isc reaffirmed that the Constitution is the “principal source” of rights protection in Ireland, that the Constitutional right is of greater importance than rights under the echr Act and that in the absence of a constitutional amendment, the echr cannot be treated as a shadow or substitute for the Constitution.185 The isc further noted that the constitutional provision may provide more protection than Article 8 as there is no requirement for close and continuous links with a specific place, unlike as required in the ECtHR case of Winterstein v France.186 It seems that Article 40.5 of the Constitution and the Article 8 echr proportionality analyses apply both in the Irish private and public rental sector regulation.
The isc’s proportionality assessment of the eviction under Article 8 also illustrates the direct influence of the international right to housing.187 The isc considered factors such as the nature of the human rights violation, the conduct of the infringer, reasons for the infringement, attitude of the planning authority, public interest in upholding the planning and development system, conduct and personal circumstances of the applicant, personal circumstances of the respondent, and consequences of the order.188 This approach closely aligns with the ECtHR and the ecsr’s procedures. The isc found the eviction disproportionate as due to the applicant’s marginalised status and the fact that there was no alternative housing, the effects of the eviction would be “catastrophic.”189 Moreover, while the Court does not discuss a “housing right” directly, we see there is an obligation on the state to provide accommodation when evicting someone from county council land.
Likewise, based on the cjeu’s decision Aziz, Irish Courts have accepted the obligation to carry out “own motion” assessments for unfair terms in mortgage contracts. Although as Kenna and Sadlier have outlined, this has not been applied in all mortgage possession cases.190 The application of the Directive (93/12/eec) on unfair contract terms “is recognized as poor in Ireland.”191
Indirect influence can also be identified when the Courts have turned to international sources to apply the unenumerated rights doctrine, which allows for the identification of rights not already codified in the Constitution (indicator 12).192 Rooney highlights the role that international human rights law has played in several cases concerning housing and the unenumerated rights doctrine.193 For example, in Duniyva v Residential Tenancies Board,194 High Court judge Barrett J discussed the possibility of an unenumerated constitutional right to housing. He argued this right might occur by reference to the ECtHR case law. In another case, Barrett J suggests the echr, resc and the icescr are potentially influential in recognising a “qualified (…) un-enumerated right pertaining to housing in the Constitution.”195
In conclusion, the direct influence of the international right to housing can be identified, but in a limited sense. The echr, through its adoption into Irish legislation, has been interpreted as providing protections against evictions. While the isc has shown that Article 8 is essential, it is lower in rank than constitutional rights. Moreover, while the international right to housing sources may be important in the future for interpreting a constitutional right to housing, this has not yet been carried out.
5.1.4 Civil Society Organisations
Civil society organisations operating in Ireland have increasingly promoted, advocated, and mobilised people towards protecting a right to housing. These organisations range from student organisations protesting extortionate student accommodation rents196 to tenant or property owners’ unions. In our analysis, we did not carry out an exhaustive investigation into all civil society actors but attempted to focus on actors who address housing rights more generally and groups which also address housing rights for particular groups.
We found varying examples of direct influence of the international right to housing on civil society organisations through indicator 13. It seems that the groups that focus on tenants more generally do not tend to send reports to the international human rights state reporting bodies, nor do they lodge complaints under international complaint mechanisms. For example, Raise the Roof is a trade union-led campaign network comprised of civil society actors and political parties working to radically change housing policy to ensure affordable homes for all. While they have not engaged with the international human rights bodies regarding shadow reports to the cescr or cases brought under the complaints procedures, human rights discourse has been at the forefront of their campaign. catu, a union for renters, social housing tenants, mortgage holders and those in emergency and precarious living situations, have not engaged with human rights bodies.197 However, this can be contrasted with groups such as The Irish Traveller Movement and Pavee Point, who campaign for the right to housing for Irish Traveller groups. These groups frequently engage with the right to housing bodies198 and publish reports on the right to housing.199
We did not see strong evidence of litigation commenced by civil society organisations (indicator 14). However, there is no route for class action lawsuits in Ireland. Moreover, Ireland has not signed all the complaints mechanisms under international law (such as the UN individual complaints procedure), which may spark these organisations to assist individuals in bringing cases. Nor do these organisations fall under the definitions of organisations entitled to lodge collective complaints under the resc system.200
We also observed examples of references to the international right to housing in the analysed Irish organisations’ banners, manifestos, reports and social media statements (indicator 15). Raise the Roof argues that a Right to Housing should be inserted into Bunreacht na hEireann and states this would ensure the State meets its obligations under the icescr and the resc.201 In addition, they have referenced Leilani Farha, former UN Special Rapporteur, on the Right to Housing.202 Pavee Point extensively references binding international right to housing provisions, particularly Art 8, in one of their reports.203
We also found instances of indirect influence through indicator 16. In Raise the Roof’s explanations of evictions and eviction bans, while they do not directly reference international law; we see that they advocate for domestic law to adopt elements that we argue are consistent with elements of the international right to housing.204 For example, they demand an end to no-fault evictions and state that the government need to ensure there are protections in place to prevent people from being forced into homelessness.205 This seems to be a consistent interpretation of the right to housing as interpreted by the UN cescr. These assertions seem to illustrate a link to the international right to housing. Moreover, their numerous protests may have placed political pressure on the legislature and government to agree to hold a referendum on the right to housing, which is also an aspiration of the international right to housing.206 catu have also called for an end to all evictions.207 They state that many evictions being carried out are violent, and they argue that people need to be kept safe.208 catu organises meetings to stop evictions from being carried out.209 While they do not refer directly to the international right to housing, they argue for eviction protections, which are aligned with the international right to housing standards.210 For example, they refer to the fact that the tenants were not consulted before an eviction and were “left in the dark.”211 In social media posts, they also refer to the fact that evictions “into homelessness” occur.212 In other tweets, they also use the term “forced evictions,” which is not commonly used in Irish law but is widely used by international human rights bodies.213 catu also stress that evictions should not occur in winter.214 They also refer to concepts such as “adequate alternative housing” and consultation with the tenant and landlord to find alternatives to evictions, which are protections discussed frequently in the international right to housing.215
However, the indirect influence of the international right to housing in the discussion of eviction protections by both Raise the Roof and catu illustrates that there has been some minor influence. We may see a rise in the interactions of these organisations with international human bodies following the referendum on the right to housing in Ireland.
5.2 Influence in Spain
The right to housing is recognised in Art. 47 of the Spanish Constitution and several regional Statutes of Autonomy, but its realisation has been historically overlooked. Nevertheless, the housing crisis following the burst of the 2008 financial bubble prompted normative changes aligning with international human rights law. Over the last decade, significant regulatory and case law developments have responded to social activists’ calls for effective compliance with Spain’s international obligations concerning eviction protections. Two factors are to be considered in examining this process.
Firstly, Spain is a monist state.216 Hence, the international human rights law instruments are legally effective from the moment they are approved in the official gazette. Secondly, Spain is a decentralised or quasi-federal State.217 Competencies on housing are devolved to the sub-state units (Autonomous Communities), but the central State also holds competencies on civil, economic, and financial matters of great relevance to the sector (i.e., regulation of the financial sector, private rental contracts, public expenditure, etc.).218 This demands an analysis of the law of the Autonomous Communities (ac) and the central State.
5.2.1 Legislature
Over the past decade, significant legislative changes in Spain have aimed to increase eviction protections. Direct influence at the legislative level is evidenced by the progressive adoption of international instruments (indicator 1). Spain ratified the icescr and the echr in the 1970s. However, recently, it has significantly expanded its commitments. Under parliamentary authorisation, in 2013, Spain ratified the Optional Protocol to the icescr,219 which introduced the individual complaints mechanism. Similarily, in 2021, Spain also ratified the resc,220 and the following year, the Additional Protocol to the Charter221 which introduced the collective complaints mechanism. As a member of the EU, Spain is also bound by the direct effect of its Directives. In response to a series of cjeu decisions, the central-State legislator reformed the civil procedure between 2013 and 2018, increasing the possibility of debtors to oppose repossessions.222
Direct influence is also evidenced by indicator 2 in the regional legislative momentum of the past decade. The year 2013 saw the beginning of a process of regional housing reforms that sought to increase the protection of vulnerable social groups facing evictions.223 Direct references to the cescr’s General Comments, the icescr and the echr case law are found in the explanatory memoranda of the laws concerning evictions enacted by several ac s’ parliaments.224 The recent central-State Ley 12/2023225 has consolidated this momentum, incorporating references to the same international sources in its explanatory memoranda. Interestingly, Art. 1 established, as one of the aims of the reform, “to comply with the provisions of international instruments ratified by Spain.”226 This should be read as a referral to guide the interpretation of the statutory provisions.
These direct references also provide context to interpret evidence of indirect influence in regional and central-state legislation, as defined by indicator 3. In this regard, we can refer to the obligation to re-house vulnerable social groups in the event of eviction contained in the Catalan Llei 24/2015.227 Similarly, we can also refer to the Valencian Llei 2/2017,228 which introduced measures to provide legal advice and facilitate mediation in eviction cases for vulnerable social groups,229 aligning with the core eviction protections identified in this paper. An obligation to provide alternative housing in instances of evictions of vulnerable groups by large landowners was also established in the Valencian legislation.230 It is also interesting to note the central-State Ley 12/2023,231 reforming the civil procedure to require eviction decisions to be based on a “considered and proportional assessment of the specific case, taking into account situations of vulnerability.” This change seems in line with the proportionality check laid out in the recommendations of the cescr, ecsr, cjeu and ECtHR.
Indirect influence is also evidenced by express mentions to international sources in the decision-making process of the recent central-State Ley 12/2023232 (indicator 4). During the parliamentary debate, one of the representatives argued that by adopting the law, not only would the “constitutional mandate” be fulfilled but also the goals of “the udhr, the European Social Charter, and the Resolution of the European Parliament of January 2021.”233 However, we found no evidence that the analysed legislatures had commissioned agencies or research groups aimed at understanding the international right to housing and eviction protections (indicator 5).
5.2.2 Executive
The influence of international law on executive action in Spain is mostly concentrated at the regional level. There are significant differences between the ac s’ executives and the central government. Some regional governments have been open to innovation to accommodate the international mandates concerning eviction protections. The central-State has remained particularly refractory to such changes, although it has progressively become more receptive in the last few years.
Direct influence in the central-State government is evidenced by the reports to the international human rights monitoring bodies (indicator 6). The central government’s fluctuating relationship with international law is reflected in its interactions with these bodies. The ecsr has acknowledged in its latest Conclusions on the implementation of Art. 16 resc the introduction of specific measures to address evictions in the Spanish housing plan. However, the Committee is still critical of the lack of social housing to attend to the needs of vulnerable people and the situation of certain minorities.234 The UN cescr, in its conclusions on Spain’s sixth periodic report has also acknowledged the positive impact of the latest housing plans but it reiterates its recommendations for regulatory improvement concerning evictions. Particularly, the need to articulate a protocol to coordinate the courts with social services.235
However, no direct references to international sources are traced in the executive’s plans and regulations (indicator 7). Indirect influence, evidenced by government produced norms consistent with international mandates (indicator 8), has also been scarce and concentrated in the last five years. The first reference to evictions is found in the 2013–2016 Plan, which merely declared it a “priority sector” without further discussion.236 Resources addressing people affected by evictions were allocated for the first time in the 2018–2021 Plan.237 In continuation of this strategy, the 2022–2025 Plan introduced a program to “facilitate an immediate housing solution”238 and a “programme of assistance to tenants in a situation of supervening vulnerability.”239
Regional executives have proven more open to the influence of the international right to housing. Direct references to international sources are found in some regional executive produced norms (indicator 7), like the Aragonese Decreto-Ley 3/2015,240 referring to Art. 25 udhr and the icescr in its explanatory memorandum. This Aragonese Decree introduced a “suspension of evictions” affecting people in a situation of particular vulnerability “until the administration offers a housing alternative.” To define these situations, the Aragonese executive considered “circumstances affecting human rights” and other variables such as gender, health and economic factors. Indirect influence is also evidenced by indicator 8 across regional legislation allocating human and material resources through schemes for mortgage debtors241 and establishing advice and mediation services.242 However, the influence of international law was not found in all the ac’s executives. Certain governments, like Madrid have opted for a minimal intervention approach during the housing crisis and has barely promoted policy reforms addressing evictions.243 In this regard, it is worth noting that many of the treaty monitoring bodies’ decisions finding Spain in breach of international human rights law are concerned with the Autonomous Community of Madrid.244
There is some evidence of the indirect influence of the international right to housing in the Spanish central-State and regional executives. However, instances of evidence are limited in relation to the two analysed indicators (9 and 10). On the one hand, mentions of the international right to housing in the public statements of regional and central-State government representatives are scarce (indicator 9). The central-State government’s most recent public statements picked up by the media regarding the debate of the central-State Ley 12/2023, advocate conceptualising housing as “a right and not a problem”, but without explicit reference to international human rights sources.245 In their social media profiles, only the vicepresident Yolanda Díaz has made express reference to international law.246 Interestingly, however, some of the central-State and regional government representatives made references to international sources of the right to housing before being in office.247 On the other hand, evidence of research agencies, publications and scientific events aimed at investigating the international right to housing is unclear (indicator 10). Many regional governments have bodies dedicated to statistical recording information on the field of housing.248 Some regional governments have also participated in the constitution of Chairs aimed at researching the right to housing, albeit without specifically addressing the international right to housing.249 The only outputs commissioned by public administrations where we identified express mentions to the international right to housing are publications or scientific events.250 However, these seem aimed at the dissemination of knowledge or to fall within the framework of broader agendas to promote strategic lines of research.
5.2.3 Judiciary
The Spanish courts show diverging approaches towards the international right to housing. The Spanish Constitutional Court (scc) has generally proven reluctant to incorporate international human rights law developments, including the right to housing. By contrast, the Spanish Supreme Court (ssc) has pushed for a broader interpretation of this right in connection with the international human rights bodies’ eviction protections.
The scc has the exclusive power to oversee the constitutionality of legislation.251 As such, it has decided on the constitutionality of regional and central State housing reforms. It has historically interpreted Art. 47 of the Spanish Constitution establishing the “right to decent and adequate housing” as a “guiding principle of the economic and social policy” with limited legal effectiveness.252 No evidence of the influence of international human rights law is found in the scc decisions interpreting the right to housing, despite central-state and ac s representatives alleging this connection in the proceedings.253 The absence of references to international law has been explained in previous research as a purely economistic approach to housing issues over a rights-based approach.254
This interpretation contrasts significantly with the ssc’s views. The ssc heads the judicial system with jurisdiction over the whole Spanish State.255 Direct and indirect influence on its case law is evidenced by indicators 11 and 12. It has repeatedly recognised the value of the right to housing and its connection to international law in deciding on eviction cases involving minors and people in vulnerable situations.256 Particularly interesting is the sts 1797/2017,257 which examines the authorisation of an eviction carried out in the face of the illegal occupation of a public building. The ssc notes the need for a proportionality check in eviction proceedings, applying the ECtHR case law in Yordanova258 and Winsterstein.259 Following this rationale, the Court annulled the eviction order on the grounds that the proportionality check had not been carried out.260 The ssc has remained cautious in admitting appeals grounded on an abstract infringement of a general “right to housing.”261 These interpretations could also be read in the context of the cjeu decisions jn the cases Aziz, Sánchez Morcillo I and Sánchez Morcillo ii guiding the interpretation of unfair terms in mortgage contracts which have directly concerned Spain.262 These decisions are in line with the cjeu case law that has connected EU law affecting housing matters with a fundamental right to housing.263
Although recognising the legal value of the constitutional and international provisions, the ssc requires a clear statement of reasons for the appeal, which must detail the particular provisions in which it is grounded and explain in which ways it was infringed.264 Spanish law does not allow for a general claim based on the right to housing as recognised in the Spanish Constitution or treaty provisions. But, it has acknowledged the possibility of holding the administration accountable for non-compliance with the decisions of international committees.265
5.2.4 Civil Society Organisations
Civil society organisations concerned with housing issues emerged in Spain after the bursting of the financial bubble and have grown exponentially over the last decade. During this period, mortgagors and tenants have shaped the legal and political debate with campaigns, demonstrations, legislative initiatives, and litigation. This section analyses the international right to housing’s influence on the Plataforma de Afectados por la Hipoteca (pah), a Spanish association in defence of mortgagors, tenants, and evictees which acts throughout the whole Spanish State.
The pah was founded in 2009. Although they have not officially engaged with the reporting procedures, they have engaged with treaty monitoring bodies through other means. For instance, the UN Special Rapporteur on the right to adequate housing met with pah representatives during their country visit to Spain in 2012 (indicator 13).266 Their actions have included assisting in litigation before domestic courts, litigating before international human rights bodies (indicator 14), advocating for normative reforms, and organising “disobedience to stop evictions.”267 For the past three years, they have been pushing for a housing law complying with “the icescr and the rulings of the United Nations and the European Courts.”268 The organisation website also provides with various forms to file lawsuits. These include an “escr eviction kit”269 and a writ to request the annulment of pending proceedings based on cjeu case law.270 Direct references to international law are frequent in pah communications and campaigns (indicator 15).271
The emergence of neighbourhood assemblies and grassroots movements in Spain laid out “the foundations for discourses appealing to the right to housing.”272 The direct actions of civil society organisations, such as pah, were conceived as an “alternative political praxis” seeking to “recover the social function of housing.”273 These groups have prompted important legal changes, participating in local governments and proposing Bills in regional parliaments.274 Their campaigns could also be associated with case law interpretative changes, identified by some voices as judicial activism.275
The organisation’s direct actions also show some evidence of indirect influence (indicator 16) insofar as they aim to guarantee some of the core eviction protections, such as the proportionality of the eviction and the provision of adequate alternative housing. pah has organised various disobedience campaigns such as STOP desahucios (stop evictions) and Obra social (social work). The former consists of sit-ins and demonstrations aimed at preventing the execution of an eviction.276 The latter consists of the occupation of empty homes in bank-owned properties to ensure “alternative housing” to people affected by evictions.277
6 Comparision of the Influence of the Right to Housing in Ireland and Spain
In this section, we conduct a comparative analysis of the influence of the international right to housing in Ireland and Spain using our indicators as a framework. This comparison aims not to provide an exhaustive comparative assessment of the Irish and Spanish legal systems. Instead, we explore the relationship between international eviction protections and domestic practice to analyse the main differences and similarities in both countries’ practices or interpretations of the international right to housing.
We have identified more evidence of direct influence in regards to the Spanish legislature than the Irish one. Spain has significantly expanded its commitments to international human rights law by ratifying different instruments related to eviction protections, such as the Optional Protocol to the icescr and the resc. Moreover, various sources – hard law (i.e., treaties and the echr case law) and soft law (i.e., the UN General Comments and the UN Special Rapporteur reports) are evident in Spanish legislation. Added to this are several instances of consistent interpretation of international human rights law (indicator 3) and references to international sources in parliamentary debates (indicator 4). Instances of direct influence on the Irish legislature are not observed beyond the incorporation of the echr into domestic law. However, through indicators 3, 4 and 5 we found evidence of several instances of indirect influence. This illustrates that perhaps the international right to housing has inspired the development of domestic protections behind the scenes.
There are two possible explanations for this difference. The first explanation may be due to an asymmetry between agenda setters in Ireland and Spain. On the one hand, in Spain, there are seventeen regional parliaments that have the capacity and autonomy to legislate on housing matters and design their own housing model. This implies a greater number of actors susceptible to the influence of the international right to housing. In a context of “horizontal competition” between regions, international human rights law can be instrumentalised by some of these actors to be perceived as more active than others.278 On the other hand, some of the Spanish regions allow interest groups to present legislative initiatives to debate and vote. In this way, civil society organisations such as pah have stimulated legislative developments in Spanish regions. However, as Ireland is a highly centralised state, the Dáil decides national and regional housing agendas. Thus, there are fewer opportunities for the international right to housing to influence domestic actors. Besides, the Irish parliamentary system does not facilitate the participation of interest groups, meaning the number of legislative agenda setters is reduced.
The second explanation is related to the extent to which the eviction protections legislation is articulated by establishing obligations on property rights holders such as landlords and creditors. In Spain, many legislative initiatives to develop eviction protections were advanced by imposing obligations on property owners, following a broad interpretation of the social function of property. For instance, Valencia and Catalonia obliged certain creditors and landlords to provide affordable alternative housing for vulnerable tenants or debtors in case of eviction. The references to international law can be read as an attempt to legitimise this intervention on private property. In contrast, in Ireland, many of the protective measures developed in recent years have imposed fewer obligations on property owners and have been mainly at the expense of public spending. Thus, arguably, the necessity to legitimise the intervention on the right to property by reference to the international right to housing is lower.
There are some noticeable differences between the influence of the international right to housing on the Irish and Spanish executives. The analysis of indicator 6 reveals that both countries regularly observe their formal international reporting obligations. However, we found no mentions or referrals to the international right to housing (indicator 7) in the Irish and Spanish housing regulations or plans. Only certain direct references were found in some regional regulations in Spain. Both Irish and Spanish executives developed measures aimed at increasing the security of tenure aligned with core eviction protections (indicator 8), but only in Spain did we find public government representatives’ statements regarding the international right to housing (indicator 9). Although in both countries the heads of government publicly discussed housing as a right, we did not find significant evidence to link those statements to international sources. Some Spanish government representatives had been vocal about the international right to housing through their social media profiles before becoming president and vicepresidents of central-State and regional governments. The silence on these matters during their time in office may suggest a conscious communicative strategy. Finally, we also identified differences in the commission of research agencies publications and scientific events to investigate the right to housing in connection with international human rights law between Ireland and Spain (indicator 10). While in Spain this seems to be embedded in general research agendas, in Ireland those outputs were openly commissioned to supporting governmental action, such is the case of the calling of a referendum.
The lack of evidence of direct influence on the Irish and Spanish executives could be explained by reference to the concept of trias politica, as the executives’ margin of interpretation of international human rights law is limited by the legal framework defined by parliaments. It may help to explain, for instance, the Irish executive’s disinclination to reference sources of the international right to housing which have not previously been incorporated into domestic law by the legislature. Likewise, it may be argued that the political ideology of governing parties could also play a significant role, as some may be less inclined to support far-reaching eviction protections. In Spain, certain political cleavages (i.e., left-wing/right-wing or centralisation/decentralisation) have proven to influence the development of housing rights.279 This may partially explain the resistance to making references and referrals to international sources under conservative governments in Spain and Ireland.
International law may have had both direct and indirect influence on the judiciary in both jurisdictions. This is firstly evidenced by indicator 11, as direct references to the echr were found in the Irish and Spanish peak courts decisions. They cite Article 8 echr and relevant ECtHR cases. This contrasts with the Spanish Constitutional Court’s active resistance to addressing the international right to housing. It is also noteworthy to mention the massive influence that EU law had on both jurisdictions particularly in relation to Directive 93/13/eec on unfair terms in consumer contracts, which aims to secure certain minimum procedural safeguards for mortgagors in the event of an eviction. Instances of the indirect influence of the echr in Ireland and Spain are also evidenced by indicator 12. These could be interpreted as a form of judicial activism, pushing for the realisation of the right to housing before other more resistant domestic actors (i.e., the executive).
Gelter and Siems have observed that whether citations of “foreign law by supreme courts” take place and in what quantity “depend[s] on the particular legal culture and its relationship to others.” Their study shows that Irish peak courts “seem to be particularly receptive to foreign influence.”280 Beyond this, the openness to international sources of eviction protections could also be explained by judges justifying their interpretation of a particular right. In Spain, it can also be explained because of the interaction of courts with civil society organisations. Interest groups in Spain contributed to bringing arguments inspired by international human rights law into eviction proceedings. This may have facilitated the reception of innovative developments and interpretations among the judiciary, reaching the Supreme Court. The position of the Spanish Constitutional Court, which is more resistant to such interpretations, could be read as a negative response to this openness.
The influence of both EU law and the echr in the judiciary’s practice could be explained due to their respective strong status and the enforceability of the ECtHR and cjeu case law in the domestic jurisdictions.281 It is expected that national judges will cite these judgments and decisions. Particularly in Ireland, as EU law and echr are the only sources of international law concerning housing that form part of domestic law. Besides, the ECtHR’s more cautious and mainly procedural approach in the interpretation of the international right to housing282 could arguably be more attractive to the States than the reasonings developed by other bodies (i.e., cescr, escr).
Finally, there is also significant evidence of both direct and indirect influence in Ireland and Spain when looking at civil society organisations. Many of the analysed groups actively engage with the human rights bodies (indicator 13). Evidence of these organisations engaging in litigation (indicator 14) is limited in Ireland, as the country has not ratified the UN individual complaints procedure. Direct influence of human rights law is also observed in many of their manifestos and social media, which include references to treaties and monitoring bodies’ decisions concerning eviction protections (indicator 15). Moreover, evidence of indirect influence is found through indicator 16 in catu and pah campaigns and direct actions (i.e, “stop evictions” campaign and organised squatting) aimed at keeping people in their homes and providing adequate alternative housing to those evicted. These actions could be read as intended to circumvent the domestic institutions (parliament, executive or judiciary) in implementing the positive obligations defined in international law. These groups have pushed for a change in the understanding and conceptualisation of the right to housing which is deeply rooted in international human rights law.
The high number of instances of direct and indirect influence on civil society organisations could be explained due to their unique position outside of the institutional domain. Van der Walt explains how legal systems have a natural tendency to preserve the status quo, which stops the implementation of innovations which may contravene it.283 As such, normative and policy innovations would be unlikely to be successful insofar as they have not been “translated into the supposedly objective, neutral or scientific language that fits the doctrinal logic that most judges, practitioners and academics feel comfortable with.”284 Thus, political or normative reform could be “obscured by trite doctrinal positions that have been reified into seemingly immovable or uncontested rules and practices, with the result that judicial (or even legislative and executive) decision makers might find it difficult or impossible to see or imagine alternative outcomes.”285 As existing beyond this institutional paradigm, civil society organisations are in a position that allows for creativity and innovation. As Jordan points out, civil society actors often conceptualise rights “quite differently to dominant institutional rights conceptions,”286 in “expansive political terms.”287 In doing so, they aim to “challenge various forms of housing inequalities and bring about a more egalitarian housing system”288 and thus influence the other domestic actors in their implementation of the right to housing. This means that the organisations are more open to developments in the international sphere which may take longer to influence other institutions.
7 Conclusion
This paper is a novel contribution to existing research on the international right to housing. Firstly, we offer a comprehensive overview of the core evictions protections that are developed in a variety of international human rights law documents. Secondly, we have developed a method, which combines a qualitative analysis based on indicators and the functional comparative method, to investigate how the international right to housing has influenced key domestic actors in Ireland and Spain. We present a set of 16 indicators designed to identify evidence of the direct and indirect influence of the international right to housing on three branches of the state (legislative, executive and judiciary) and civil society organisations. The results of applying these indicators highlights the relevance of qualitative methods in analysing the relationship between international and domestic law. We were able to identify direct links to the international right to housing, as well as evidence of connections where the links are not so apparent. Nevertheless, adopting a purely qualitative approach also has some drawbacks. It is important not to assume a causal inference or to ignore wider trends when investigating the indirect influence of international law. Further research into these elements, through a multimethod approach, may prove fruitful to understand these sources of influence or its intensity. Future research can employ these indicators to examine the impact of various human rights on domestic legal systems, both directly and indirectly.
Through our comparative analysis we have reached three main conclusions. Firstly, despite both countries being rooted in different legal traditions, this does not seem to have substantially shaped how the international right to housing has influenced the domestic actors. Slight differences are evident in the legislatures, perhaps linked to the effect of the dualist and monist approaches to international law. Moreover, the decentralised nature of the political system in Spain may also have had some effect on the way the international right to housing influenced the legislative branches of the State. The existence of a plurality of agenda setters in a context of horizontal competition may have facilitated innovative legislative approaches in connection with international human rights law. There are no reasons, however, to believe that the centralised nature of Ireland had a negative effect in this regard. Likewise, we did not find evidence that these factors played a role with the other analysed actors.
Secondly, evidence of indirect influence is more common than direct influence. This could be view as a disappointing result for the international right to housing as some international sources have not been incorporated or referenced in domestic law. However, it also suggests that the international right to housing may be acting behind the scenes as a source of inspiration in the development of eviction protections. Our analysis demonstrates that the international right to housing may function as conscious or unconscious source of inspiration in the development of eviction protections. As Cassel notes, the strengthening of rights is often the result of a “complex interweaving of mutually reinforcing processes.”289 The main value of international human rights is its ability to work with other frameworks, such as “law, politics, technology, economics, or consciousness”, to strengthen rights in a country.290 This comparative analysis shows that even in instances where it does not seem that the right to housing was the main rationale for developing a particular eviction protection, this does not mean that the right to housing had no role to play.
Thirdly, this paper also shows that the influence of international law on actors within domestic legal systems can be shaped by their interactions with other actors. They may hinder or oppose the reception of innovations. This is the case with the legislature limiting the executive’s margin of action. But sometimes, they also challenge each other to promote a more advanced right to housing. In this sense, it is interesting to note how civil society organisations may indirectly challenge the domestic status quo from outside the traditional legal structure as they have actively engaged in the political debate in both countries and have fostered legal reform in Spain.
At times, the international right to housing could be perceived as a mere aspiration since high numbers of evictions persist in both countries. The ratification of treaties and other human rights protocols may not necessarily translate into increased protections for people affected by evictions. However, this research suggests that a stronger influence of the international right to housing could facilitate legal changes contributing to an improvement of material conditions. In this sense, the international right to housing could be seen as a driving force influencing domestic legal settings towards its effective realisation.
Acknowledgments
This research was completed as part of the evict project funded by the European Research Council. Research Grant under grant agreement No. 949316 (https://doi.org/10.3030/949316). Special acknowledgements to Prof Michel Vols, Prof Bjorn Hoops, Dr Michelle Bruijn and Iris Schepers for their helpful comments, suggestions and support.
Biographical notes
Emma N. Nic Shuibhne is a PhD candidate at the Department of Legal Methods at the University of Groningen, The Netherlands. She is a member of the evict project (www.eviction.eu) funded by the European Research Council (No. 949316) and lead by Prof. Dr. Michel Vols. Her main research areas refer to international housing rights, evictions and comparative law. Among her latest published works is the journal article title “Deconstructing the Eviction Protections Under the Revised European Social Charter: A Systematic Content Analysis of the Interplay Between the Right to Housing and the Right to Property” (2023) Human Rights Law Review (doi: 10.1093/hrlr/ngad022).
Andrei Quintiá Pastrana is a postdoctoral researcher at the Department of Legal Methods at the University of Groningen, The Netherlands. His main research fields are public law, housing and property law and urban planning. Quintiá is a member of the evict project (www.eviction.eu) funded by the European Research Council (No. 949316) and lead by Prof. Dr. Michel Vols and regularly participates in international conferences on those topics, such as the European Network of Housing Research. Among his most recent publications is the article “The regionalisation of housing policies in Spain: an analysis of territorial differences” (2022) Housing Studies (doi: 10.1080/02673037.2022.2146064).
This research was completed as part of the evict project (www.eviction.eu) funded by the European Research Council Research Grant under grant agreement No 949316. Special acknowledgements to Prof Michel Vols, Prof Bjorn Hoops and Dr Michelle Bruijn for their helpful comments and suggestions on earlier drafts of this paper.
Also commonly known as the right to adequate housing, but we have adopted a shorter description in this paper.
See, for example, the UN International Convention on Economic, Social and Cultural Rights, Revised European Social Charter and the European Convention on Human Rights.
B. Acharya, D. Bhatta, and C. Dhakal, “The Risk of Eviction and the Mental Health Outcomes among US adults”, Prev Med Rep (2022). https://doi.org/10.1016/j.pmedr.2022.101981; B.https://doi.org/10.1016/j.pmedr.2022.101981; B. Munoz et al, “La salud de las personas adultas afectadas por un proceso de desahucio”, Gac Sanit. https://doi.org/10.1016/j.pmedr.2022.101981; B. Munoz et al, “La salud de las personas adultas afectadas por un proceso de desahucio”, Gac Sanit 30(1) (2016); R. Collinson and D. Reed, “The Effects of Evictions on Low-Income Households” (2018).
W. Damon et al, “Residential eviction predicts initiation of or relapse into crystal methamphetamine use among people who inject drugs: a prospective cohort study”, Journal of Public Health 41(1) (2018) 36–45.
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M. Desmond and R. Tolbert Kimbro, “Eviction’s Fallout: Housing, Hardship and Health”, Social Forces 94(1) (2015) 295–324.
J. Hohmann, The Right to Housing: Law, Concepts, Possibilities (London: Bloomsbury, 2013); N. Moons, The Right to Housing in Law and Society (London: Routledge, 2018); E.N. Nic Shuibhne, L.M. Bruijn, & M. Vols, “Deconstructing the Eviction Protections under the Revised European Social Charter: A Systematic Content Analysis of the Interplay between the Right to Housing and the Right to Property”, hrlr (2023).
J. Hohmann supra note 8 and N. Moons supra note 8; A. Kucs, Z. Sedlova and L. Pierhurovica, “The Right to Housing: International, European and National Perspectives”, Cuadernos constitucionales de la Cátedra Fadrique Furió Ceriol (2008) 112.
J.C. Benito Sánchez, “The UN Committee on Economic, Social and Cultural Rights Decision in López Albán v Spain: The Need for a Proportionality Assessment in Eviction Proceedings”, Lex Social 10 (2020), 372; F. Coomans and M. Ruiz Díaz‐Reixa, “Effectiveness of the icescr Complaint Mechanism‐ An Analysis and Discussion of the Spanish Housing Rights Cases”, in: C. Boost et al (eds.), Myth or Lived Reality: On the (In)Effectiveness of Human Rights (New York: Springer, 2021), p. 20; D. Gailiute, “Right to Housing in the Jurisprudence of the European Committee of Social Rights”, Societal Studies 4 (2012).
L Hawthorne, “The Right to Access to Adequate Housing – Curtailment of Eviction” De Jure 34 584 (2001), M. Vols, “European law and private evictions: property, proportionality and vulnerable people”, European Review of Private Law (2019); P. Kenna et al. (eds), Loss of home and evictions across Europe (Cheltenham: Edward Elgar 2018); P. Kenna, “Housing Rights: Positive Duties and Enforceable Rights at the European Court of Human Rights”, ehrlr 13 (2008).
P. Kenna, “Can housing rights be applied to modern housing systems? International Journal of Law in the Built Environment 2(2) (2010) 110; J. Ponce-Solé, “Affordable Housing, Zoning and the International Covenant on Economic, Social and Cultural Rights: Some Lessons from the Spanish and South African Experiences”, Journal of Comparative Urban Law & Policy (1) (2017) 95; M. Vols, “Het recht op huisvesting en de Nederlandse Grondwet: Een analyse van artikel 22lid 2 Grondwet: het recht op voldoende woongelegenheid”, njcm Bulletin Nederlands Tijdschrift voor de Mensenrechten 47(2) (2022).
M. Vols and E. Dyah Kusumawati, “The International Right to Housing, Evictions and the Obligation to Provide Alternative Accommodation”, Asia Pacific Journal on Human Rights and the Law 21(2) (2020) 238; A. Nogueira López “Vulnerabilidad administrativa: Los obstáculos administrativos en el acceso a los programas de vivienda”, in: N. Paleo Mosquera (ed.), Políticas y derecho a la vivienda: gente sin casa y casas sin gente (Valencia: Tirant lo Blanch, 2020) pp. 213–244.
For example, V. Lima, “The political frame of a housing crisis: Campaigning for the right to housing in Ireland”, Journal of Civil Society 19(1) (2023); M. Foscarinis, B. Paul, B.Porter & A.Scherer, ‘The Human Right toHousing: Making the Case in U.S. Advocacy’ 38 (97) Clearinghouse Rev (2004); Claire Levy-Vroelant, ‘The Right to Housing in France: Still a Long Way to Go from Intention to Implementation’ 24 jl & Soc Pol’y (2015); K. Casla, ‘The rights we live in: protecting the right to housing in Spain through fair trial, private and family life and non-retrogressive measures’ The International Journal of Human Rights. 20 (3) (2016) 285–297.
S. Fick and M. Vols, “Best Protection Against Eviction? A Comparative Analysis of Protection Against Evictions in the European Convention on Human Rights and the South African Constitution”, ejcl 3 (2016) 40–69 https://doi.org.//10.1163/22134514-00301002; M. Vols “The Optional Protocol to the icescr, Homelessness and Moral Hazard: The Alternative Adequate Housing Requirement in the cescr’s Jurisprudence – an Incentive Not to Pay for Housing?”, International Human Rights Law Review 12(1) (2023) 1–25 https://doi.org/10.1163/22131035-12010001; P. Kenna supra note 12; S. Nasarre Aznar, M. Olinda García, K. Xerri, “¿Puede ser el alquiler una alternativa real al dominio como forma de acceso a la vivienda? Una comparativa legal Portugal-España-Malta”, Teoría y Derecho. Revista de pensamiento jurídico 16 (2014) 188–215; J. Ponce-Solé supra note 12.
K. Olds, “The Role of Courts in Making the Right to Housing a Reality throughout Europe: Lessons from France and the Netherlands”, Wisconsin. International Journal 28(1) (2010) 170; M. Loison, “The Implementation of an Enforceable Right to Housing in France”, European Journal of Homelessness (1) (2007).
See, for example, M. Jordan, “Contesting Housing Inequality: Housing Rights and Social Movements”, The Modern Law Review (2023) 20.
Comparative research has been carried out on these two countries to examine other topics such as the financialisation of housing and mortgage law. See M. Byrne, “Generation rent and the finanicalisation of housing: a comparative exploration of the growth of the private rental sector in Ireland, the UK and Spain”, Housing Studies 35(4) (2020) 744; K. Lynch-Shally, “Comparing Mortgage Law in Ireland and Spain”, in: Kenna (eds), Contemporary Housing Issues in a Globalised World (Routledge, 2014).
P. Kenna. & L. Lynch-Shally, “Comparing Mortgage Law in England and Ireland”, The Conveyancer and Property Lawyer (2014) 294–316; E. Watts, The Impact of Legal Rights to Housing for Homeless People: A Normative Comparison of Scotland and Ireland. PhD thesis, University of York (2013); W. Disch, P. Egan, E. Kenny, K McQuinn, “Contrasting housing supply in Ireland, Northern Ireland and the rest of the United Kingdom” Research Series, No. 175, The Economic and Social Research Institute (esri), Dublin (2024) https://doi.org/10.26504/rs175; B. Watts, “Rights, Needs and Stigma: A Comparison of Homelessness Policy in Scotland and Ireland”, European Journal of Homelessness 7(1) (2013) 41–68.
S. Nasarre Aznar, M. Olinda Garcia & K. Xerri,“¿Puede ser el alquiler una alternativa real al dominio como forma de acceso a la vivienda? Una comparativa legal Portugal-España-Malta”, Teoría & Derecho: Revista de pensamiento jurídico 16 (2014) 188; C. Mialot & J. Ponce Solé, “Ten Years of the French dalo and the Catalan Right to Housing Act: European Innovation in the Fields of Land Use Planning and Housing”, Journal of Comparative Urban Law and Policy 2(1) (2017) 101.
M. Ginebra et al., L’evolució dels desnonaments 2008–2019: de l’emergencia a la consolidación d’una crisi habitacional (Barcelona: Observatori desc, 2020), p. 11. Retrieved 20 January 2024 https://observatoridesc.org/sites/default/files/publication/files/informe-desnonaments-3.pdf.
Central Bank of Ireland, Statistical Release: Residential Mortgag Arrears & Repossessions Statistics- Q 1 2023 (2023). Retrieved 26 February 2024 https://www.centralbank.ie/docs/default-source/statistics/data-and-analysis/credit-and-banking-statistics/mortgage-arrears/2023q1_ie_mortgage_arrears_statistics.pdf?sfvrsn=d9dd9e1d_3.
Residental Tenancies Board, Notices of Termination (NoTs) received by the rtb, Q3 2022 – Q1 2023. Retrieved 26 June 2023 https://www.rtb.ie/data-hub/notices-of-termination-received-by-the-rtb-from-q3-2022.
Instituto Nacional de Estadística, Encuesta a personas sin hogar, 2022. Retrieved 1 February 2024 https://www.ine.es/prensa/epsh_2022.pdf; Focus Ireland, Number of people who are homeless and replying on emergency homeless accommodation. Retrieved 1 February 2024 https://www.focusireland.ie/knowledge-hub/latest-figures/.
M. Siems, Comparative Law (Cambridge: Cambridge University Press, 2022), pp. 41–70.
D. Maxwell, “Broadening the human rights discourse, realizing socio-economic rights, and balancing rights to property: Moving beyond the rhetoric of socio-economic rights and Scottish land reform”, Public Law 1 (2019) 121–145; C. Queiroz, Direitos fundamentais sociais. funçoes, âmbito, conteúdo, questões interpretativas e problemas de justiciabilidade (Coimbra: Petrony, 2020) pp. 48–50; A Quintiá Pastrana, Derecho a la vivienda y vulnerabilidad. Las medidas públicas del protección frente a la emergencia social (Cizur Menor: Aranzadi, 2022) pp. 33–58.
F. Coomans and M. Ruiz Díaz‐Reixa supra note 10, p. 20; Jordan supra note 17.
G. D’Adda, “Urban mobilizations and municipal policies to un-make housing precarity: The Barcelona experiments”, City 25 (2021) 740–763.
U. Kischel, Comparative Law (oup, 2019).
Ibid.
M. Siems supra note 25.
Kischel supra note 29, pp. 4 and 8.
Ibid.
M. Siems supra note 25, p. 26.
M. Vols, Legal Research (The Hague: Eleven, 2021), p. 166.
In Ireland, legislation was secured using: https://www.irishstatutebook.ie. In Spain, both state and regional legislation was secured using https://boe.es.
In Ireland, these sources were accessed using: https://www.oireachtas.ie. In Spain those sources were accessed consulting the official website of the Spanish parliament (https://www.congreso.es), as well as the website of the regional parliaments with legislative initiative in housing matters, such as Andalusia (https://parlamentodeandalucia.es), Balearic Islands (https://parlamentib.es), Basque Country (https://www.legebiltzarra.eus), Canary Islands (https://parcan.es), Catalonia (https://parlament.cat), Galicia (https://parlamentodegalicia.gal), Navarre (https://parlamentodenavarra.es) and Valencia (https://cortsvalencianas.es).
In Ireland, we used the government’s database, https://www.gov.ie to access these documents. In Spain, data on both state and regional governments was collected accessing: https://boe.es.
Vols et al, “The Right to Adequate Housing & brics: An Exploratory Comparative Analysis of Brazil, China and Russia”, European Journal of Comparative Law and Governance (2023).
This search was conducted through the search engines of the respective platforms. For the social media we examined the verified twitter accounts of the heads of government and coalition leaders’ for the analysed period. An exhaustive search was conducted using key terms related to housing (“housing”, “accommodation”, “evictions”) and international law (“international”, “human rights”, “united nations” and “European”) both in English and the official languages of Spain (Basque, Catalan, Galician and Spanish). Searches were also conducted through the search engines of a selection of relevant newspapers for Ireland and Spain using the same keywords.
A. Roberts, “Comparative International Law? The role of national courts in creating and enforcing international law”, The International and Comparative Law Quarterly 57 (2011) 73; J. D’Aspremont, “The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order”, in: O. Kristian Fauchald, A. Nollkaemper (eds), The Practice of International and National Courts and the (De-)Fragmentation of International Law (London: Bloomsbury, 2012), p 143.
We accessed Irish caselaw using https://courts.ie. We accessed Spanish caselaw using https://www.poderjudicial.es.
M. Jordan supra note 17; V. Lima supra note 14; G. D’Adda, L. Delgado and E. Sala,”Responding to the Precarization of Housing: A Case Study of pah Barcelona”, in: H. Carr, B. Edgeworth and C. Hunter (eds), Law and The Precarious Home:Socio-Legal Perspectives on the Home in Insecure Times (London: Bloomsbury, 2018).
D. Cassel, “Does International Human Rights Law Make a Difference”, Chicago Journal of International Law 2(1) (2001) 122.
We acknowledge that the relationship between domestic and international law is not a one-way street. While we recognise that national law and practice can have a great influence on international law, we do not address this issue in this study.
F. Coomans and M. Ruiz Díaz‐Reixa, supra note 10, p. 20; J. Krommendijk The domestic impact and effectiveness of the process of state reporting under UN human rights treaties in the Netherlands, New Zealand and Finland: Paper-pushing or policy prompting? (Doctoral Thesis, Maastricht University: Intersentia, 2014) p. 59 https://doi.org/10.26481/dis.20140703jk, p. 26; C. Heyns and F. Viljoen, “The Impact of the United Nations Human Rights Treaties on the Domestic Level”, Human Rights Quarterly (2001) 484; N. Moons supra note 8, p. 97.
S. Egan, “The (In) Effectiveness of Human Rights: Mapping Existing Research-An Introduction”, in: Boost et al supra note 10, p. 3; Krommendijk supra note 46, p. 26; B. Kleine Deters “Does the Right to Education Lead to Better Primary Education Outcomes”, in: C. Boost et al supra note 10, p. 74.
A. von Staden, “Implementation and Compliance”, in: Murrary and Long (eds), Implementation of Human Rights in Practice (Cheltenham: Edward Elgar, 2022), p. 17.
K. Tomasevski, “Indicators”, in: A. Eide et al (eds), Economic, Social and Cultural Rights: A Textbook (Leiden: Brill, 2001), p. 532; Office of the High Commissioner for Human Rights, Monitoring housing rights. Developing a set of indicators to monitor the full and progressive realisation of the human right to adequate housing, Background paper for the 2003 expert group meeting on housing rights monitoring, Working paper No. 1 (2003), p. 47 https://unhabitat.org/sites/default/files/2020/09/monitoring-housing-rights.pdf
J. Krommendijk supra note 46, p. 26.
F. Coomans and M. Ruiz Díaz‐Reixa supra note 10, p. 19.
F. Coomans and M. Ruiz Díaz‐Reixa supra note 10, p.19.
N. A. Papadopoulos, “Paving the Way for Effective Socio-economic Rights? The Domestic Enforcement of the European Social Charter System in Light of Recent Judicial Practice”, in: C. Boost, supra note 10, p. 101.
A. Von Staden supra note 48, p. 28.
S. Kalantry, J. E. Getgen and S. A. Koh, “Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A Focus on the Right to Education in the icescr”, Human Rights Quarterly 32 (2010) 258.
UN Special Rapporteur on adequate housing, “Guidelines for the Implementation on the Right to Adequate Housing” a/hrc/43/43 (2019).
A. Von Staden supra note 48, p. 22.
Ibid, p. 30.
F. Coomans and M. Ruiz Díaz‐Reix supra note 10, p. 20.
C. Heyns and F. Viljoen, “The Impact of the United Nations Human Rights Treaties on the Domestic Level”, Human Rights Quarterly (2001) 484.
Coomans and Ruiz Díaz‐Reix supra note 10, p. 19.
Ibid, p. 20; Krommendijk supra note 46, p. 25.
N. Moons supra note 8, p. 97.
C. Heyns and F. Viljoen, “The Impact of the United Nations Human Rights Treaties on the Domestic Level”, Human Rights Quarterly (2001) 484.
I.J. Sand, “The International of Society, Politics and Law: The Legal and Communcative Theories of Haberman, Luhmann and Tueber”, in: C. Thornhill (ed), Luhmann and Law (London: Routledge, 2017), p. 49.
D. Cassel supra note 44, p. 122.
Krommendijk supra note 46, p 25.
D. Shelton, “Compliance with International Human Rights Soft Law”, Studies in Transnational Legal Policy 119(29) (1997) 132.
This manner of using international law has been also recognised in Oomen, B., Baumgärtel, M., & Durmus, E. (2021). Accelerating Cities, Constitutional Brakes? Local Authorities Between Global Challenges and Domestic Law. In E. H. Ballin, G. van der Schyff, M. Stremler, & M. De Visser (Eds.), European Yearbook of Constitutional Law 2020: The City in Constitutional Law (1 ed., pp. 249–272), 253.
M. Green, “What we talk about when we talk about indicators: current approaches to human rights measurement”, Human Rights Quarterly (2001) 1065.
Ibid, p. 1086.
Office of the High Commissioner for Human Rights, Monitoring housing rights. Developing a set of indicators to monitor the full and progressive realisation of the human right to adequate housing, Background paper for the 2003 expert group meeting on housing rights monitoring, Working paper No. 1 (2003) p 47, https://unhabitat.org/sites/default/files/2020/09/monitoring-housing-rights.pdf; K. Tomasevski, “Indicators”, in: A Eide et al supra note 49, p. 532; A. Eide, “The Use of Indicators in the Practice of the Committee on Economic, Social and Cultural Rights”, in: supra note 49, p. 545.
B. Kleine Deters, supra note 47.
J. Krommendijk, supra note 46.
S. Kalantry et al supra note 55, p 284.
Ireland and Spain are bound to various instruments concerning the right to housing adopted within the United Nations, including art. 25 of the Universal Declaration of Human Rights (udhr) and art. 11 of the International Covenant on Economic, Social and Cultural Rights (icescr). At a regional level, both countries have also ratified the European Convention on Human Rights (echr), which contains the right to respect for private and family life, home and correspondence, and articles 16 and 31 of the Revised European Social Charter (resc). Besides, Ireland and Spain are also bound to art. 7 of the Charter of Fundamental Rights of the European Union (cfreu) and the Court of Justice of the European Union (cjeu) on this matter.
Due to the scope of this paper, we have chosen to focus on the leading global and European human rights monitoring bodies.
A.C. Buyse, Post-Conflict Housing Restitution. The European Human Rights Perspective with a Case Study on Bosnia and Herzegovina (Cambridge: Intersentia, 2008); S. Fick & M. Vols supra note 15; P. Kenna supra note 11 pp. 193–208; S. Nield, “Clash of the titans: Article 8, occupiers and their home”, in: S. Bright (Ed.), Modern Studies in Property Law 6 (Oxford: Hart, 2011) pp. 101–129; A. Remiche, “Yordanova and Others v Bulgaria: The influence of the social right to adequate housing on the interpretation of the civil right to respect for one’s home”, Human Rights Law Review (2012) pp. 787–800.
See Council of Europe, “Collective Compliants Procedure”. Retrieved 7 March 2024 https://coe.int/en/web/european-social-charter/collective-complaints-procedure1; D. Gailiūtė, “Right to Housing in the Jurisprudence of the European Committee of Social Rights”, Socialinių mokslų studijos Societal Studies 4 (2012) 1606–1622; P. Kenna and M. Jordan, ‘Housing Rights in Europe: The Council of Europe Leads the Way’ in Kenna (ed) Contemporary Housing Issues in a Globalised World Ashgate (2014) p. 115; E. Nic Shuibhne et al supra note 8.
See J. C. Benito Sánchez supra note 10; M. Vols supra note 15.
This case law has been laid out in the decisions on the Aziz (cjeu, 14 March 2013, C-415/11), Sánchez Morcillo I (cjeu, 17 July 2014, C-169/14), and Sánchez Morcillo ii (cjeu, 16 July 2015, C-539/14) cases addressing the lack of formal protections for creditors within the Spanish procedural order.
P. Kenna & H. Simón-Moreno, “Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights”, European Law Journal: Review of European Law in Context, 25(6) (2019) 608–622 https:/doi.org/10.1111/eulj.12348; I. Domurath, “Housing as a ‘Double irritant’ in EU law: Towards an sgei between markets and local needs”, Yearbook of European Law, 38(1) (2019), 400–447.
I. Domurath,“Mortgage debt and the social function of contract”, European Law Journal: Review of European Law in Context, 22(6) (2016), 758–771 https:/doi.org/10.1111/eulj.12213.
J. Ponce Solé, El derecho de la Unión Europea y la vivienda. (Madrid: McGraw-Hill, 2019).
cjeu, Kušionová vs. Smart Capital, 10 September 2014, C-34/13.
J. Ponce Solé, supra note 84.
See UN Special Rapporteur on the right to adequate housing country visits. Retrieved 7 March 2024 https://www.ohchr.org/en/special-procedures/sr-housing/country-visits.
J. Hohmann, “Principle, Politics and Practice: The role of UN Special Rapporteurs on the Right to Adequate Housing in the development of the Right to housing in International law”, in A Nolan, R Freedman & T Murphy (Eds.), The United Nations Special Procedures System (Leiden: Brill, 2015) pp. 271–296.
J. Hohmann supra note 8.
J. C. Benito Sánchez, “The UN Committee on Economic, Social and Cultural Rights’ Decision in I.D.G. v Spain: The Right to Housing and Mortgage Foreclosures”, Journal Européen des Droits de l’homme (Edward Elgar 2016), p. 320; S. Wilson, “The Right to Adequate Housing”, in: J. Dugard et al (eds.), Research Handbook on Economic, Social And Cultural Rights as Human Rights (Cheltenham: Edward Elgar, 2020), pp. 190–193; B. Saul, D. Kinley & J. Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford: Oxford University Press, 2014); M. Vols and E. Dyah Kusumawati supra note 13; M. Vols supra note 15; J. Benito Sánchez,“The UN Committee on Economic, Social and Cultural Rights Decision in López Albán v Spain: The Need for a Proportionality Assessment in Eviction Proceedings”, Lex Social 10 (2020), 372.
P. Kenna & H. Simón-Moreno supra note 82; I. Domurath supra note 82; I. Domurath, supra note 82.
E. Nic Shuibhne et al supra note 8, p. 24.
Ibid.
European Committee on Social Rights, Article 16 Conclusion on Estonia (2019).
UN cescr, General Comment No.7, para. 15.; UN Special Rapporteur, Forced Evictions, Fact Sheet No. 25. Rev 1. Retrieved 30 July 2023 https://www.ohchr.org/sites/default/files/Documents/Publications/FS25.Rev.1.pdf.
echr, Buckley v United Kingdom, app no. 20348/92, para. 76; echr, Faulkner & McDonagh v Ireland, app nos. 30391/18 and 30416/18, para. 60.
UN cescr supra note 95, p. 15; UN Special Rapporteur supra note 95, p. 30.
UN Special Rapporteur on adequate housing, “Annex 1 Basic Principles and Guidelines on Development-based evictions and displacement” (2007) a/hrc/4/18, para. 49. Also see UN Special Rapporteur supra note 95, p.6.
UN Committee on Economic, Social and Cultural Rights, General Comment No. 4, p 8.
UN Special Rapporteur, “Forced Evictions” p. 30. Retrieved 19 September 2023 https://www.ohchr.org/sites/default/files/Documents/Publications/FS25.Rev.1.pdf.
European Committee on Social Rights, Article 31(2) Conclusion on Slovenia (2011).
ECtHR, Yordanova and others v. Bulgaria, app no. no. 25446/06, pp 73–83.
UN cescr supra note 95, para. 15.
Directive 93/13/cee of 5 April 1993, on unfair terms in consumer contracts.
Directive 2014/17/EU of 4 February 2014, on credit agreements for consumers relating to residential immovable property.
cjeu, Kušionová vs. Smart Capital, 10 September 2014, C-34/13.
UN cescr supra note 95, p. 15.
UN Special Rapporteur on adequate housing, “Annex 1 Basic Principles and Guidelines on Development-based evictions and displacement” (2007) a/hrc/4/18, p. 59.
See for example, European Committee on Social Rights, Médecins du Monde – International v. France, Collective Complaint No. 67/2011 pp 75 and European Committee on Social Rights, ‘Article 31 Conclusions on Greece’ (2019).
UN cescr supra note 95, pp. 13 & 15.
echr, Connors v. the United Kingdom, app no. 66746/01.
UN Committee on Economic, Social and Cultural Rights, General Comment No 7, pp 14. & ehcr, fjm v UK app no. 76202/16, para 45.
echr, Winterstein v France app no 27013/07.
Ibid.
echr, fjm supra note 112, p. 121.
UN cescr, Ben Djazia et al v Spain, E/C.12/61/D/5/2015.
E. Nic Shuibhne et al supra note 8.
In the field of housing, for example, the Court assessed the proportionality of public housing policies aimed at maintaining the “viability of the city centre” or “combating land pressure” and housing shortages in regards to interests deriving from the freedom of establishment protected in Directive 2006/123/ce. See cjeu, Cali Apartments v Ville de Paris, 22nd September 2020, C-724/18 y C-727/18; cje, Appingedam, 30th January 2018, C‑360/15 and C‑31/16.
European Committee on Social Rights, Article 31(2) Conclusions on Finland (2011) and Lithuania (2019) and Article 16 Conclusions on Romania (2019), Latvia (2019), Hungary (2011).
Ibid.
United Nations Human Rights Office of the High Commissioner, ‘Forced Evictions’ Fact Sheet No. 25/Rev 1 (2014). Retrieved 3 July 2023 https://www.ohchr.org/sites/default/files/Documents/Publications/FS25.Rev.1.pdf
Ibid.
United Nations Committee on Economic, Social and Cultural Rights, Concluding observations regarding Greece, 9 October 2015, p. 34.
echr, Rousk v. Sweden, application no. 27183/04, p. 150.
Ibid, p. 153.
feantsa & Foundation Abbe Pierre (2017) Second overview of housing exclusion in Europe, p. 102.
ECtHR, Faulkner & McDonagh v Ireland supra note 96, p 112.
See M. Vols and Kusumawati supra note 13; UN cescr supra note 95, para 16.
ECtHR, Fedeyeva v. Russia, app no. 55723/00, 2005, p. 133.
M. Vols supra note 15.
UN cescr, supra note 123, p. 15.3.
M. Vols supra note 15.
UN cescr, López Albán vs. España, núm. 37/2018, para. 9.3.
M. Vols supra note 15.
European Committee on Social Rights, Article 31(2) Conclusions Portugal (2019).
European Committee on Social Rights, Article 31(2) Conclusions Slovenia (2015).
UN Special Rapporteur on adequate housing, Annex 1 Basic Principles and Guidelines on Development-based evictions and displacement (2007).
Article 29.6, Bunreacht na hÉireann (1937).
Eleventh Amendment to Bunreacht na hÉireann, 1992.
Organisation of Economic Co-operation and Development, Profile on Ireland. Retrieved 01 July 2023 https://www.oecd.org/regional/regional-policy/profile-Ireland.pdf
European Convention on Human Rights Act 2003 (echr Act 2003).
Ibid, Art. 3.
Council of Europe, Signatures and Ratifications. Retrieved 13 February 2024 https://www.coe.int/en/web/european-social-charter/signatures-ratifications & Council of Europe, Ireland country profile- table of accepted provisions by Ireland. Retrieved 13 February 2024 https://www.coe.int/en/web/european-social-charter/ireland
European Social Charter (revised), ets No. 163, Article 16 and 31 and the European Social Charter: Table of Accepted Provisions. Retrieved 7 March 2024 https://www.coe.int/en/web/european-social-charter/ireland-and-the-european-social-charter.
United Nations, Ratification status by country. Retrieved 12 February 2024 https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=83&Lang=EN
The Residential Tenancies Acts 2004 to 2022, the Housing (Miscellaneous Provisions) Act 2014, and the Land and Conveyancing Law Reform Act did not contain direct references to international sources of the right to housing.
Land and Conveyancing Law Reform (Amendment) Act 2019, Section 3, 2A (3) (a) and Section 3, 2A (3) (d) (ii).
Residential Tenancies Act 2004 REVISED Updated up to 30 November 2023, Part 5 Chapter 3 Period of notice to be given & Part 6 Dispute Resolution.
Residential Tenancies (Amendment) Act 2021, section 5.
Residential Tenancies (Deferment Of Termination Dates Of Certain Tenancies) Act 2022.
Residential Tenancies (Greater Security of Tenure and Rent Certainty) Bill 2018. Retrieved 30 January 2024 https://data.oireachtas.ie/ie/oireachtas/bill/2018/35/eng/initiated/b3518d.pdfhttps://data.oireachtas.ie/ie/oireachtas/bill/2018/35/eng/initiated/b3518d.pdf and Residential Tenancies (Amendment) Bill 2021. Retrieved 30 January 2024 https://data.oireachtas.ie/ie/oireachtas/bill/2021/70/eng/initiated/b7021s.pdf. Retrieved 30 January 2024 available at https://data.oireachtas.ie/ie/oireachtas/bill/2021/70/eng/initiated/b7021s.pdfhttps://data.oireachtas.ie/ie/oireachtas/bill/2021/70/eng/initiated/b7021s.pdf.
Residential Tenancies (Amendment) (Extension of Notice Periods) Bill 2021. Retrieved 30 January 2024 https://data.oireachtas.ie/ie/oireachtas/bill/2021/159/eng/initiated/b15921d.pdf.
Residential Tenancies (Prevention of Family Homelessness) Bill 2018. Retrieved 29 January 2024 https://data.oireachtas.ie/ie/oireachtas/bill/2018/110/eng/initiated/b11018d.pdf.
The Houses of the Oireachtas, Joint Committee on Housing, Local Government and Heritage, debate on 5th July 2022.
The Houses of the Oireachtas, Joint Committee on Housing, Planning and Local Government debate on 12th June 2018.
Senator Mary Fitzpatrick, Seanad Éireann debate, 4th June 2021, Vol. 276 No. 10.
Ibid.
Seanad Eireann debate, 2nd March 2022, Vol. 283 No.5.
Seanad Eireann debate, 24 October 2017, Vol. 253 No.15.
Thirty-seventh Amendment of the Constitution (Economic, Social and Cultural Rights) Bill 2018.
See comments by Deputy Mick Barry in Dáil Éireann debate - Wednesday, 27 Jan 2021, Vol. 1003 No. 5.
See comments by Deputy Peadar Toibin in Dáil Éireann debate supra note 161.
Oireachtas Library and Research Services, Spotlight: Traveller Accommodation: The challenges of implementation (2018).
See reports to the escr. Retrieved 5 February 2024 https://www.coe.int/en/web/european-social-charter/ireland. See reports to the UN cescr. Retrieved 5 February 2024 https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/countries.aspx?CountryCode=IRL&Lang=EN.
escr, Conclusions of the European Committee of Social Rights 2019, para. 31.
UN cescr, Concluding Observations on the third periodic report of Ireland (2015), p. 8.
UN cescr, List of issues in relation to the fourth periodic report of Ireland, 31 March 2022, p. 2.
Ibid, p. 5.
cescr, “Replies of Ireland to the list of issues in relation to its fourth periodic report” 25th October 2023, p. 14.
See the measures listed in the Government of Ireland Policy portal. Retrieved 12 January 2024 https://www.gov.ie/en/policy/aa076a-housing/latest/?q=%22right+to+housing%22&sort_by=published_date.
Government of Ireland, ‘Housing for All: A New Housing Plan for Ireland’ (2021). Retrieved 11 January 2024 https://www.gov.ie/en/publication/ef5ec-housing-for-all-a-new-housing-plan-for-ireland/.
Oireachtas, Affordable Housing Act 2021. Retrieved https://www.irishstatutebook.ie/eli/2021/act/25/enacted/en/html.
Government of Ireland, Department of Housing, Local Government and Heritage, Affordable Housing Act 2021 (Cost Rental Letting and Eligibility) Regulations 2021. Retrieved 12 January 2024 https://www.gov.ie/en/service/32911-cost-rental-homes/.
Government of Ireland, Abhaile service for insolvent borrowers in mortgage arrears (2016).
Approved Housing Bodies are not-for-profit organisations that have been “approved” under the Housing (Miscellaneous Provisions) Act 1992. (Retrieved 10 January 2024 https://www.irishstatutebook.ie/eli/1992/act/18/section/6/enacted/en/html). Often with the assistance of local authorities, they provide affordable rented housing for those who cannot afford to rent on the private rental market.
Government of Ireland, Department of Housing, Local Government and Heritage, Mortgage to Rent scheme (2012). Retrieved 12 January 2024 https://www.gov.ie/en/service/32911-cost-rental-homes/.
Irish State Report to the Committee on Economic, Social and Cultural Rights, Fourth periodic report submitted by Ireland under articles 16 and 17 of the Covenant (2021), p. 242.
Reply by the Irish Government to the comments made by Community Action Network (can) and Centre for Housing Law, Rights and Policy Research, nui Galway on the 16th National Report on the implementation of the European Social Charter. Retrieved 18 September 2023 https://rm.coe.int/reply-by-the-irish-government-to-the-comments-made-by-can-and-centre-f/1680965f33.
Dáil Éireann debate, 12 July 2023, Vol. 1042 No. 1.
The Housing Commission, Referendum Report of the Housing Commission (July 2023), 34. Retrieved 29 October 2024 https://www.gov.ie/en/publication/f3551-report-of-the-housing-commission/.
Irish Courts website. Retrieved 1 March 2024 https://www.courts.ie/supreme-court.
Irish Supreme Court, Clare County Council v McDonagh & Anor [2022] iesc 2; P. Kenna, “Clare CC v. Bernard and Helen McDonagh and ihrec” Irish Supreme Court Review 5(1)10–20, 10.
Ibid, p. 10.
Irish Supreme Court, Clare County Council v McDonagh & Anor supra note 183, p. 52.
Ibid, p. 57. See also C Crummey, “Unconstitutional Evictions”, Irish Judicial Studies Journal, (Forthcoming), p. 8. Retrieved 27 February 2024 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4505634.
Clare County Council v McDonagh & Anor [2022] iesc 2, p. 73.
Ibid, p. 75.
Ibid, p. 98 and p. 4.
P. Kenna and J. Sadlier, “EU Law and Mortgage Possession Cases - What Is It All About?”, Irish Judicial Studies Journal 3 (2019), 126.
Ibid, p. 131.
See O. Doyle and T. Hickey, Constitutional Law: Text, Cases and Materials (Dublin: Clarus Press, 2022), pp. 3–01.
J. Rooney, “International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law”, Dublin University Law Journal, 41(2), (2018) 144.
High Court of Ireland, Duniyva v Residential Tenancies Board [2017] iehc 578. See also J. Rooney supra note 193.
High Court of Ireland, ebs v Kenehan [2017] iehc 604, The High Court No.196CA, pp 13. See also Rooney supra note 193.
J. Casey, “tcd students block access to Book of Kells in protest over rent hikes”, The Irish Examiner, 13 September 2023. Retrieved 9 February 2024 https://www.irishexaminer.com/news/arid-41225449.html.
catu Ireland website. Retrieved 1 November 2023 https://catuireland.org/about/.
The Irish Traveller Movement, Comments on the 18th National Report of Ireland on the implementation of the European Social Charter (2021). Retrieved 13 November 2023 https://itmtrav.ie/wp-content/uploads/2021/08/Irish-Traveller-Movement-COE-European-Social-Charter-Submission-1.pdf and Pavee Point, National Traveller Women’s Forum, Galway Traveller Movement, Donegal Travellers Project, Minceirs Whiden. Joint submission to the UN cescr on Irelands iv Reporting Cycle to the Committee, 23 December 2021.
The Irish Traveller Movement, A Home as a Constitutional Right (2018). Retrieved 8 January 2024 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjEqt6w_M2DAxVKTEEAHU3fCrAQFnoECBsQAQ&url=https%3A%2F%2Fitmtrav.ie%2Fwp-content%2Fuploads%2F2018%2F11%2FAsk-Final-Housing-as-a-Constitutional-Right-For-Print.docx&usg=AOvVaw3L2Iv8bi4ShTe5ZkV6MXWp&opi=89978449 and Pavee Point, The Traveller Community and Homelessness (2021). Retrieved 8 January 2024 https://www.paveepoint.ie/wp-content/uploads/2015/04/Pavee-Point-Traveller-Homelessness-Advocacy-Paper-Oct2021.pdf.
Council of Europe. The Collective Complaints Procedure. Retrieved 20 November 2023 https://www.coe.int/en/web/european-social-charter/collective-complaints-procedure1.
Irish Congress of Trade Unions, “Raise the Roof”. Retrieved 1 November 2023 https://www.ictu.ie/campaigns/raise-roof.
Raise the Roof website. Retrieved 1 November 2023 https://www.raisetheroof.ie/press-quote?rq=farha.
An Coimisiún um Chearta Duine, Travellers Cultural Rights. The Right to Respect for Traveller Culture and Way of Life. Retrieved 15 November 2023 https://www.paveepoint.ie/wp-content/uploads/2015/04/Travellers-Cultural-Rights.pdf.
Raise the Roof, Calls on td s to Restore the Eviction Ban, 15 March 2023. Retrieved 1 November 2023 https://ictu.ie/publications/raise-roof-calls-tds-restore-eviction-ban.
Raise the Roof, “Manifesto: A New Deal for Housing” (2022), p. 2. Retrieved 14 November 2023 https://www.ictu.ie/sites/default/files/publications/2022/RTRManifestoNov2022.pdf.
Discussions on the influence that these Irish activists have had on the legislature and executive can be found in V. Lima, 2021 “The rise and rise of housing activism in Ireland” RTÉ, 30 August. Retrieved 21 November 2023 https://www.rte.ie/brainstorm/2021/0830/1243595-housing-crisis-activism-ireland-raise-the-roof-catu-take-back-the-city-home-sweet-home/ and R. Hearn, 2022, “2023 – Time for Ireland to take a new direction in housing” The Journal, 26 December Retrieved 21 November 2023 https://www.thejournal.ie/readme/irelands-housing-crisis-5951541-Dec2022/.
catu Ireland, “No Evictions Campaign Statement - Protests The McGrath Group on December 12th”. Retrieved 2 October 2023 https://catuireland.org/catu-no-evictions-campaign-starement-protest-the-mcgrath-group-on-dec-12th/.
Ibid.
catu Ireland, “Eviction Alert! Stop the Vulture Fund”. Retrieved 1 October 2023 https://catuireland.org/stop-the-vulture-eviction/.
Ibid.
Ibid.
catu Ireland, Twiter, 19 January 2023. Retrieved 1 October 2023 https://twitter.comCatuIreland/status/1616046946820423683.
catu Ireland, Twitter, 28 March 2023. Retrieved 1 November 2023 available at: https://twitter.com/CATULimerick/status/1640737505141051393?t=n3_mVHfz7LOoWhMBnAH7BA&s=19.
catu Ireland, Twitter, 21 December 2021. Retrieved 1 October 2023 https://twitter.com/CatuIreland/status/1473328124960161801?s=20.
catu Ireland, Twitter, 1 February 2022 https://twitter.com/CPhibsnevin/status/1488479674640576512?s=20.
C. Fernández de Casadevante Romani, “La ratificación de los tratados internacionales, una perspectiva de derecho comparado”, (eprs) Servicio de Estudios del Parlamento Europeo, (2021) p. 19, Retrieved 13 January 2024 https://www.europarl.europa.eu/RegData/etudes/STUD/2021/698044/EPRS_STU(2021)698044_ES.pdf.
L. Moreno, “El futuro de la federalización en España”, en Navajas Zubeldia, Carlos (Coord.) Actas del ii Simposio de Historia Actual: Logroño, 26–28 de noviembre de 1998 (Logroño: Instituto de Estudios Riojanos, 2000), pp. 211–238.
A. Nogueira López & A. Quintiá Pastrana, “The spanish housing crisis: between autonomic social action and neoliberal recentralization”, in: M. Vols & C. Schmid (Eds.) Homes, houses and the law (The Hague: Eleven, 2019).
Instrumento de Ratificación del Protocolo Facultativo del Pacto Internacional de Derechos Económicos, Sociales y Culturales, hecho en Nueva York el 10 de diciembre de 2008 (Ref. boe-a-2013-2081).
Instrumento de Ratificación de la Carta Social Europea (revisada), hecha en Estrasburgo el 3 de mayo de 1996 (Ref. boe-a-2021-9719).
Instrumento de ratificación del Protocolo Adicional a la Carta Social Europea en el que se establece un sistema de reclamaciones colectivas, hecho en Estrasburgo el 9 de noviembre de 1995 (Ref. boe-a-2022-17976).
C. Jerez Delgado, “Reacciones del legislador español como consecuencia de la jurisprudencia del tjue. En particular, la reforma procesal tras el Caso aziz”, Baden-Baden: nomos (2019) 39–63; K. Casla supra note 14.
N. Paleo Mosquera & A. Quintiá Pastrana, “The regionalization of housing policies in Spain: an analysis of territorial differences”, Housing Studies (2022) https://doi.org/10.1080/02673037.2022.2146064.
Ley 6/2015, de 24 de marzo, de la Vivienda (Murcia); Ley 3/2015, de 18 de junio, de vivienda (Basque Country); Ley 24/2015, de 29 de julio, de medidas urgentes para afrontar la emergencia en el ámbito de la vivienda y la pobreza energética (Catalonia); Ley 4/2016, de 23 de diciembre, de medidas de protección del derecho a la vivienda de las personas en riesgo de exclusión residencial (Catalonia); Ley 2/2017, de 3 de febrero, por la función social de la vivienda (Valencia); Ley 1/2018, de 26 de abril, por la que se establece el derecho de tanteo y retracto en desahucios de viviendas (Andalusia); Ley 5/2018, de 19 de junio, de la vivienda (Balearic Islands); Ley 11/2019, de 11 de abril, de promoción y acceso a la vivienda (Extremadura).
Spanish Parliament, Ley 12/2023, 24 May of 2023 (Ref. boe-a-2023-12203).
Ibid.
Catalan Parliament, Llei 24/2015, 29 July 2015 (Ref. boe-a-2015-9725.
Valencian Parliament, Llei 2/2017, 3 February 2017 (Ref. boe-a-2017-2421).
Ibid, Art. 26.
Ibid, Art. 12.
Spanish Parliament supra note 225.
Spanish Parliament supra note 225.
Diario de sesiones del Congreso de los Diputados Pleno y Diputación Permanente, No. 265, 27 April 2023, p. 32. Retrieved 15 January 2024 https://www.congreso.es/public_oficiales/L14/CONG/DS/PL/DSCD-14-PL-265.PDF.
ecsr, xix-4 Conclusions. Spain (xxi-4/def/esp/16/en).
cescr, Concluding observations on the 6th periodic report of Spain (e/c.12/esp/6).
Spanish Government, Real Decreto 233/2013, 5 April 2013 (Ref. boe-a-2013-3780).
Spanish Government, Real Decreto 106/2018, 9 March 2018 (Ref. boe-a-2018-3358), Art. 18.
Spanish Government Real Decreto 42/2022, 18 January 2022 (Ref. boe-a-2022-802), Art. 35–42.
Ibid., Art. 43–50.
Aragon Government, Decreto-Ley 3/2015, 15th December 2015, (Ref. boa-d-2015-90619).
Valencian Governement, Resolució de concessió d’ajudes del Programa d’ajudes a les persones víctimes de violència de gènere, persones que han patit desnonament del seu habitatge habitual, persones sense llar i altres persones especialment vulnerables a través de les entitats locals. Retrieved 4 January 2024 https://dogv.gva.es/datos/2021/08/12/pdf/2021_8609.pdf.
Catalan Government, Decret 98/2014, of 8 July 2014.
N. Paleo Mosquera & A. Quintiá Pastrana supra note 223, K. Casla supra note 14, 290–293.
See UN cescr, supra note 123; cescr; cescr, López Albán vs. España, núm. 37/2018; cescr, El Ayoubi et al v. Spain, núm. 54/2018; Decision on admissibility and immediate measures: Defence for Children International (dci) and Others v. Spain, Complaint No. 206/2022.
Agencias, “Sánchez asegura que la nueva ley hará de la vivienda “un derecho” mientras Feijóo habla de “ley antivivienda”, Eldiario, 15th April 2023. Retrieved 5 January 2024 https://www.eldiario.es/politica/sanchez-asegura-nueva-ley-hara-vivienda-sea-derecho-no-problema_1_10122439.html.
Yolanda Díaz, Twitter, Retrieved 15 March 2024 https://x.com/Yolanda_Diaz_/status/1610724420355506176?s=20.
Pedro Sánchez, Twitter, Retrieved 15 March 2024 https://x.com/sanchezcastejon/status/312324188138512384?s=20; Yolanda Díaz, Twitter, Retrieved 15 March 2024 https://x.com/Yolanda_Diaz_/status/1189818514376450048?s=20; Pere Aragonés Retrieved 15 March 2024 https://x.com/perearagones/status/407948226738675712?s=20.
See the Oservatorio da Vivenda de Galicia funded by the Galician Government. Retrieved 5 March 2024 https://www.observatoriodavivenda.gal.
See the participation of the Catalan Government in the Catedra Barcelona Estudis Habitatge. Retrieved 5 March 2024 https://cbeh.cat/sobre-cbeh/ and the Valencian Government in the Càtedra d’habitatge i dret a la Ciutat. Retrieved 5 March 2024 https://catedrahabitatge.es/es/la-catedra/.
The Catalan Government has commissioned publications addressing the international right to housing, for instance N. Riba Renom, “El dret a l’habitatge” in Materials de pau i drets humans (Barcelona: Genralitat de Catalunya. Oficina de Promoció de la Pau i dels Drets Humans, 2010). Retrieved 3 March 2024 https://www.gencat.cat/governacio/pub/sum/dgrip/MPDH_15_cat.pdf.
Spanish Constitution, Art. 153 & Art. 161.
stc 93/2015, 14th May 2015, ecli:es:tc:2015:93.
stc 97/2018, of 19th September, ecli:es:tc:2018:97, facts, para. no. 6; stc 32/2018, of 12 April, ecli:es:tc:2018:32, facts, para. no. 6.
A. Quintiá Pastrana, “Más allá del art. 47 ce: Derechos fundamentales y legislación autonómica para la protección del derecho a la vivienda de grupos sociales vulnerables”, Teoría y Método. Revista de Derecho Público 6 (2022) 137–138.
Excluding regional law when its ultimately interpreted and applied by the corresponding High Courts.
sts 194/2021, of 15 February 2021 (Appeal No. 7291/2019) ecli:es:ts:2021:548; sts 158/2019, of 14 March (Appeal No. 2233/2016), ecli:es:ts:2019:773; sts 1581/2020, 23 November (Appeal no. 4507/2019), ecli:es:ts:2020:3894.
sts 1797/2017, of 23rd November 2017 (Appeal No. 270/2016) ecli:es:ts:2017:4211.
Supra note 102.
Supra note 113.
sts 1797/2017, of 23 November, (Complaint No. 270/2016), ecli:es:ts:2017:4211.
ats 5282/2023, of 26 April, (Complaint No. 7700/2022), ecli:es:ts:2023:5282A.
Supra note 81.
Supra note 85.
sts 3873/2021, of 25 october, (Complaint No. 741/2021), ecli:es:ts:2021:3873.
sts, 1263/2018, of 17 July, (Complaint No. 1002/2017), ecli:es:ts:2018:2747.
J. França, 2019, “Una década de la pah: cronología de la lucha por la vivienda”, Eldiario, 21 February. Retrieved 20 November 2023 https://www.eldiario.es/catalunya/decada-pah-cronologia-lucha-vivienda_1_1687074.html.
Ibid.
pah, 2021, “Manifiesto de la Iniciativa por una Ley que garantice el Derecho a la Vivienda”, pah Blog, 18 February. Retrieved 18 November 2023 https://afectadosporlahipoteca.com/2021/02/18/manifiesto-por-una-ley-que-garantice-el-derecho-a-la-vivienda/.
pah, Kit Dictamen desc, Retrieved 18 November 2023 https://afectadosporlahipoteca.com/wp-content/uploads/2018/01/KIT-DICTAMEN-DESC-alegaciones-13ENE18.docx.
pah, Modelo escrito para solicitar individualmente al Juez decanato la nulidad de los procedimientos en trámite en base a las sentencias del tjue. Retrieved 18 November 2023 https://afectadosporlahipoteca.com/documentos-utiles/#sentencia-ue.
pah, 2020, “Sin las medidas urgentes de la pah, miles de personas se quedan atrás”, pah Blog, 10 June. Retrieved 18 November 2023 https://afectadosporlahipoteca.com/2020/06/10/medidas-urgentes-de-la-pah-para-no-dejar-a-nadie-atras/; pah, 2021, “La futura Ley de Vivienda debe, ante todo, garantizar la vivienda como Derecho fundamental”, pah Blog, 10 March. Retrieved 18 November 2023 https://afectadosporlahipoteca.com/2021/03/10/la-ley-de-vivienda-debe-garantizar-la-vivienda-como-derecho-fundamental/; pah, 2023, “[Comunicado] Concentración contra el Gobierno para que incluya puntos claves a la Ley por el Derecho a la Vivienda”, pah Blog, 24 January. Retrieved 18 November 2023 https://afectadosporlahipoteca.com/2023/01/24/comunicado-concentracion-contra-el-gobierno-para-que-incluya-puntos-claves-a-la-ley-por-el-derecho-a-la-vivienda/.
M. Janoschk & F. Mota, “New municipalism in action or urban neoliberalisation reloaded? An analysis of governance change, stability and path dependence in Madrid (2015–2019)”, Urban Studies 58(13) (2020) 2814–2830, https://doi.org/10.1177/0042098020925345; M. García-Lamarca, “From occupying plazas to recuperating housing: Insurgent practices in Spain”, International Journal of Urban and Regional Research 41(1) (2017) 37–53, https://doi.org/10.1111/1468-2427.12386.
Ibid.
On the political process and the participation of the pah in local and regional politics see V. Rubio-Pueyo, Municipalism in Spain: From Barcelona to Madrid and Beyond (New York: Rosa-Luxemburg-Foundation, 2017) and G. D’Adda supra note 28. A more critical view of the context in which these normative changes have taken place can be found in R.M. Garcia Teruel & S. Nasarre Aznar, “Quince años sin solución para la vivienda. La innovación legal y la ciencia de datos en política de vivienda”, Revista Crítica de Derecho Inmobiliario 789 (2022) 183–224.
S. Nasarre Aznar, Los años de la crisis de la vivienda. De las hipotecas subprime a la vivienda colaborativa. (Valencia: Tirant lo Blanch, 2020).
pah, STOP desahucios. Retrieved 19 November 2023 https://afectadosporlahipoteca.com/stop-desalojos/.
pah, Obra social la pah. Retrieved 19 November 2023 https://afectadosporlahipoteca.com/obra-social-pah/.
K. Banting, “The Welfare State as Statescraft: Territorial Politics and Canadian Social Policy”, in: S. Liebfried, P. Pierson (eds.), European Social Policy: Between Fragmentation and Integration (Washington DC: Brookings Institution, 1995) pp. 269–300; G. Bonoli, M. Natili & P. Trein, “A federalist’s dilemma: Trade-offs between social legitimacy and budget responsibility in multi-tiered welfare states”, Journal of European Social Policy 29(1) (2019) 56–69, https://doi.org/10.1177/0958928718781294; H. Obinger, S. Leibfried, & F. G. Castles, Federalism and the welfare state (Cambridge: Cambridge University Press, 2005).
N. Paleo Mosquera & A. Quintiá Pastrana supra note 223.
M. Gelter & M. M. Siems, “Language, Legal Origins, and Culture Before the Courts: Cross-Citations Between Supreme Courts of Europe”, Supreme Court Economic Review 21 (2013) https://doi.org/10.1086/675270.
H. Keller & A. Stone Sweet, “Assessing the impact of the echr on national legal systems”, in: H Keller and Stone Sweet (eds), A Europe of rights: the impact of the echr on national legal systems (Oxford: Oxford University Press, 2008), pp. 677–712. https://doi.org/10.1093/acprof:oso/9780199535262.001.0001.
E. Polgari, “European Consensus: A Conservative and a Dynamic Force in European Human Rights Jurisprudence”, icl Journal 12(1) (2018) 59–84. https://doi.org/10.1515/icl-2017-0091https://doi.org/10.1515/icl-2017-0091.
A. J. Van der Walt, Property in the margins (Bloomsbury, 2009).
Ibid, p. 18.
Ibid, p. 17.
M. Jordan supra note 17, p. 71.
Ibid, p. 72.
Ibid, p. 75.
D. Cassel supra note 44, p. 123.
Ibid, p. 123.
