Housing and Problems of Municipalities

Cities can work together to provide local public services. But these 'inter-municipal cooperations' face major legal challenges: e.g. questions arise about their lack of democratic legitimacy and their preferential treatment (e.g. tax exemptions) vis-à-vis private companies pursuing the same activities. In the past, these forms of extended local government often involved loss-making activities like water distribution. Since the 1980s (European free market) they have evolved into economic and even competitive market players (e.g. in the energy, tech and health sector). This paper summarizes the conclusions of my doctoral research. The questions are answered 1) whether such market-oriented/competitive objectives still belong to the essence of local government, 2) what legal problems these activities cause, 3) and whether remedial legislative intervention is possible. Inter-municipal cooperation in Belgium is the starting point followed by comparative legal research with the Netherlands.

Housing—access and adequacy—has emerged in major cities around the world as a key issue of citizen and state concern. This is not surprising. Reference to variants of “the social question“ is often made in times marked by anxiety and conflict. While what Arendt termed “the social question“ is connected to notions of poverty, precariousness, and social vulnerability, this concept has been used to describe situations where such conditions threaten, not only individuals, but the social web of society as such. Indeed, all aspects of the social question focus critiques of twenty-first century capitalism and its organization of urban society and polity. The ability of either the state or the market to manage creation and distribution of housing is under question—providing a more particular example of a general loss of faith in traditional public and private institutions.

The European Convention on Human Rights, through its direct applicability, is at the forefront of the protection of fundamental rights. The obligations it encompasses have considerably expanded since 1953, notably thanks to the “living instrument“ theory. However, the European Court of Human Rights is still adamant on not granting a right to housing. The protection of asylum seekers could be an opening against this refusal. Since M.S.S v. Belgium and Greece, the Court has progressively recognized violations of the Convention because States did not provide asylum seekers with proper accommodations during their claims. Right to housing is thus starting to be included in the ECHR case-law, for this particular population, because of their dependency on public help. This contribution argues that the recognition of a right to housing through the ECHR is underway, in first assessing the development of such a protection for asylum seekers, to how it could impact other vulnerable populations.

This paper considers ways in which public law should respond to a growingly urban global order of blurred private and state power. Either in law or in practice, private entities are increasingly involved in various aspects of urban governance, ranging from essential service delivery to the governance of public health. Yet public-law accountability structures in most legal systems remain focused on state actors, thereby creating a democratic-accountability gap. This paper considers the operation of public law norms (including human rights, public participation and administrative-law principles) in relation to non-state actors embroiled in urban governance. It canvasses the shaping of urban autonomy through the devolution of state power, the legal positioning of urban decision-making fora vis public participation structures, the nature of legal instruments that implement governance decisions and the normative role of human rights law in upholding substantive ends of urban governance.