The Right to Housing and the Growing Relevance of Economic and Social Human Rights

In 2015 the Committee on Economic and Social Rights issued its decision in the case of IDG v Spain (2/2014). This was one of the first decisions on individual communications made to it under the new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

The case concerned a woman in Spain who had defaulted on the mortgage for her owner-occupied property. The lending institution, in the midst of a serious economic crisis in Spain, called in the full amount of the loan and launched enforcement proceedings in the Spanish Courts with a view to auctioning her property. By order of the court four attempts were made to serve a notice of these proceedings on the complainant without success. After this no further attempts at serving a notification were made and the notice was then posted on the court noticeboard.

It was only after the court ordered that the property be auctioned that the complainant learned of the court proceedings and sought reconsideration by the courts. However, the Spanish Courts, including the Constitutional Court, dismissed her actions for reconsideration of the proceedings in the light of the lack of notice to her.

The Committee on Economic and Social Rights found that the irregularity of the notice procedure had a significant impact on the ability of the complainant to defend her right to housing and thus amounted to a violation of Art 11(1) of the International Covenant on Economic, Social and Cultural Rights.

On it face, the decision in IDG v Spain might seem to lack immediate relevance to Australians given that Australia has not yet agreed to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and the generally poor record of Australian governments in abiding by the decisions of other UN human rights committees. However, such a view would be short sighted.

In the past many have argued that economic and social rights by their nature cannot be protected by courts. The overwhelmingly most important aspect of this decision is the way its reasoning breaks down such views. By concentrating on familiar aspects of civil procedure it shows that some aspects of economic and social rights can be protected by courts just as easily and civil and political human rights can. As such the decision heralds a growing importance of economic and social rights jurisprudence in the future.

This is of great significance to the relevance of Human Rights in an era of growing income inequality and homelessness. In Australia, problems with accessing the housing market and homelessness are already significant political and social issues. In addition, there is a significant likelihood that in the future Australia will sign and ratify the Optional Protocol to the International Covenant on Economic and Social Rights. This would allow Australians to complain that their economic and social human rights are being violated.
In such an environment the growing jurisprudence of the Economic and Social Rights Committee may be of some assistance to Australians who believe that their economic and social human rights are not being upheld.

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