Deconstructing the Eviction Protections Under the Revised European Social Charter

This article analyses the eviction protections provided by the Revised European Social Charter by conducting a systematic content analysis of the European Committee on Social Rights’ (ECSR) Con-clusions and Decisions on Articles 16 and 31. The findings reveal that the ECSR has established nine consistent eviction protections throughout its jurisprudence. Additionally, this article examines how the ECSR considers the right to property within the context of evictions, revealing additional eviction protections inconsistently applied by the ECSR that addresses the conflict between the right to housing and property. To provide insight into how the ECSR could address the conflict more directly, this paper compares the ECSR’s approach with that adopted by the United Nations Committee on Economic, SocialandCulturalRights(UNCESCR).Ultimately,thisstudyconcludesthattheUNCESCRengages withtherighttopropertyinthecontextofevictionsmoredirectlythantheECSR.


INTRODUCTION
In the context of evictions (the involuntary loss of one's home), the right to housing and the right to property can be seen as both friends and foes.When residents own their homes (owneroccupiers), the right to property will strengthen the protection against eviction provided by the right to housing, thus acting as a friend. 1 In situations where residents do not own their homes and property right holders initiate evictions of residents who can 'only' rely on the right to housing, the right to property and the right to housing stand in opposition.In this context, the right to housing can limit how property owners can implement their right to property, thus acting as foes. 2 The right to housing protects many aspects of housing, including adequacy, affordability, accessibility and habitability. 3Moreover, it protects the security of tenure, which guarantees protection against the loss of homes through evictions. 4Elements of the right to housing are found in international and regional human rights treaties, such as Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 8 of the European Convention on Human Rights (ECHR) and Article 31 of the Revised European Social Charter (RESC).
The right to housing is closely intertwined with the right to property.Essential aspects of the right to property include the exclusive right to use (a piece of) property and the right to offer it for use or sale. 5Furthermore, a property owner can exclude others from their property and choose how it is used 'without seeking the permission of others'. 6The right to property is codified in various human rights instruments, such as Article 1 of the First Protocol to the ECHR and the African Charter on Human and Peoples' Rights (1981).The late André Van der Walt argued that the right to property often has the status of a trump right, meaning that in eviction cases, property rights are generally seen as more robust than other rights, including the right to housing. 7Hohmann suggests that both rights can conflict in certain circumstances. 8here has been considerable research into this issue. 9This research often considers the role of the international right to housing and the domestic right to property in domestic housing litigation. 10Fewer scholars have assessed the relationship between the right to housing and the right to property in an international or regional human rights context. 11Moreover, scholars analysing this relationship have mainly focused on the ICESCR and the ECHR. 12This research has yet to be mirrored in studies on the RESC.
The RESC contains a right to housing under Article 31. 13This Article contains three subsections that oblige States parties to (1) promote access to housing of an adequate standard, (2) prevent and reduce homelessness and (3) make the price of housing accessible to those without adequate resources.Additionally, Article 16 acts as a right to housing in disguise, by ensuring the State provides families with housing. 14The concept of forced eviction is identical under Articles 16 and 31. 15Moreover, the European Committee on Social Rights (ECSR) appears to 'import the requirements of Article 31' into Article 16 but focuses its assessment on families. 16n addition, the ECSR has examined eviction protections under Article 16 in relation to States that have not accepted Article 31. 17Articles 15, 19, 23 and 3018 may be relevant to the right to housing, and may briefly be mentioned to enrich the analysis in this paper.However, Articles 16 and 31 will be focused on as they contain substantial eviction protections.
Comprised of 15 independent experts, the ECSR assesses State compliance with the RESC in two ways. 19First, the ECSR examines the reports submitted by States and publish 'Conclusions', describing the States' compliance with the RESC.Second, the ECSR considers complaints under the Collective Complaints Procedure and issues 'Decisions' clarifying if a violation of the RESC occurred. 20Through the Conclusions and Decisions, the ECSR elaborates on eviction protections that States must enforce to conform with Articles 16 and 31. 21he academic literature that addresses the RESC primarily explores the doctrinal meaning of the RESC's articles. 22Other publications have compared the RESC and the ECHR. 23dditionally, publications on Article 31 deal predominantly with Decisions under the Collective Complaint Procedure. 24For example, Brillat concentrates on the Decisions with a cursory look at the Committee's Conclusions. 25Cullen discusses the Decisions' methods of interpretation. 26hile Sâmboan gives insight into the ECSR's strategies to legitimise and enforce its judgments, they do not offer insight into the Conclusions. 27Consequently, the ECSR's Conclusions on Articles 16 and 31 remain understudied.Akandji-Kombé identified the 'monopolising' of the Decisions in 2005. 28He argues that the Conclusions should be looked at more closely as they contain 'interpretative innovations' that later become important in the collective complaints procedure. 29An exception is Kenna and Jordan's study published nearly 10 years ago. 30They conducted an insightful investigation into the ECSR's right to housing by analysing Decisions and Conclusions, yet they did not focus on eviction protections.
This article fills these gaps by examining the ECSR's Articles 16 and 31 Decisions and Conclusions.It will combine doctrinal legal analysis with a systematic content analysis (SCA) of all available Conclusions and Decisions on Articles 16 and 31.This method is not widely used in legal research but is used in this article to offer new insights into the ECSR's eviction protections and the relationship between them and the right to property.To provide inspiration on how the ECSR could address this relationship to a greater extent, this article compares the ECSR's approach with that adopted by the United Nations Committee on Economic, Social and Cultural Rights (UN CESCR).
The objectives of this article are: (1) to provide a rich overview of Article 16 and 31 Conclusions and Decisions, (2) to explore what eviction protections the RESC (as interpreted by the ECSR) offers, (3) to analyse whether and how the ECSR conceptualises the right to property in its Articles 16 and 31 Decisions and Conclusions and (4) to compare the ECSR's approach with that adopted by the UN CESCR in balancing the right to housing and the right to property.
This article is divided into six sections.Section 2 describes the data and research methods.Section 3 presents an overview of the results and an analysis of the identified eviction protections.Section 4 discusses if and how the ECSR balances the right to housing and the right to property.Section 5 compares the ECSR's approach to balancing the right to housing and property with that of the UN CESCR.In the final section, a conclusion is presented.

A. Data
We conducted a SCA to study the RESC's eviction protections mentioned in Conclusions, relating to 30 countries. 35n the Conclusions, the ECSR examines States' reports on the implementation of and compliance with the RESC provisions. 36The ECSR can conclude that the State is in conformity with or not in conformity with the Charter.The ECSR can also defer the Conclusion, meaning no conclusion is reached, if the State Party did not provide sufficient information.The ECSR can also find that certain aspects of the country's laws conform with the RESC while other parts of the laws do not.For example, the ECSR concluded that Lithuania's eviction framework lacked essential elements as there was no reasonable notice period before evictions, nor was there compensation available in the event of illegal evictions. 37Still, the ECSR concluded that the existence of an appeal procedure for evictees and a proportionality assessment by domestic courts conformed with Article 31(2). 38The ECSR's Decisions are the outcomes of the Collective Complaints Procedure, an optional measure that States can adopt by signing the Additional Protocol.In March 2023, only 14 States had ratified the Additional Protocol. 39uesada notes that the Decisions impact even States that have not accepted the Protocol as the reasoning from the Decisions is often applied in the Conclusions. 40nder the Collective Complaints Procedure, only certain qualified bodies are entitled to lodge a complaint.These bodies include European social partners (such as the European Trade Union Confederation), specific international non-governmental organisations (such as the European Roma Rights Centre) and trade unions in the country concerned (such as Confédération Générale du Travail in France).During this procedure, the ECSR reviews the submissions to ascertain if the RESC has been violated, considering each alleged breach of the RESC's provisions individually. 41For example, in Médecins du Monde-International v France the ECSR considered the alleged violations of Article E in conjunction with Article 31(1), Article 31(2), Article 30 and Article 16 separately. 42According to Akandji-Kombé, the Decisions are formulated with a 'rigour that we normally considered reserved to courts of law'. 43uesada notes that the collective complaints procedure is becoming increasingly judicial. 44owever, unlike traditional legal judgments, the Decisions do not consider individual situations but examine the general legal situation in the State.
There is a total of 161 Decisions on Merits published in English on the HUDOC database between 9 September 1999 and 12 April 2023.Out of the total population of Decisions on Merits, 15 Decisions deal with the implementation of Article 31, concerning six countries: France, Greece, Italy, the Netherlands, Portugal and Slovenia.There are 24 Article 16 Decisions on Merits relating to 12 countries: Belgium, Bulgaria, Croatia, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Portugal and Slovenia.This article adopts two research methods: SCA and doctrinal legal research.SCA is a highly beneficial supplement to the traditional legal doctrinal method, offering researchers new insights into their sources. 45It is used to analyse texts in a systematic and replicative way.Hall and Wright distinguish four steps for conducting SCA: (1) collecting a set of documents, (2) systematically reading them, (3) recording consistent features and (4) drawing inferences about the features' use and meaning. 46In this article, step one involved collecting all Article 16 and 31 Conclusions and Decisions.During the collection stage, 119 Conclusions and 15 Decisions on Merits relating to Article 31, and 395 Conclusions and 24 Decisions on Merits relating to Article 16 were gathered.Decisions on admissibility were excluded from the analysis as they do not contain substantial eviction protections.Steps two and three involved a process known as coding.This involved carefully reading the texts and recording consistent features.Coding allows for the identification of patterns across many documents, offering more meaningful insights than a deeply reflective understanding of a single case. 47The coding involved selecting 'variables' based on the article's objectives.Examples of the variables are the type of eviction protection endorsed and the outcomes of the Conclusion or Decision.The variables were transcribed to a coding form which the coder used when analysing the documents.Once completed, the first drafts of the coding form and codebook were used on a pilot test of a third of Article 31 Conclusions (n = 38) and Decisions (n = 5).This was done to identify any issues with the coding form.The fourth and final step of the SCA involved drawing inferences about variables' use and meaning.For example, one variable gathered was whether the ECSR mentioned a proportionality analysis in eviction cases.The results of this variable were interpreted to analyse how the ECSR engages with proportionality and what interests they consider.
Besides the SCA, we applied the doctrinal legal method.This method aims to describe the law in a 'neutral, consistent and clear' manner. 48It also allows for the analysis of 'the relationship between rules, explains areas of difficulty and perhaps, predicts future developments." 49The doctrinal legal analysis was used to interpret the Article 16 and 31 eviction protections to analyse if and how the ECSR considers the right to property in eviction cases and to compare this with the UN CESCR's approach.

THE REVISED SOCIAL CHARTER'S PROTECTIONS AGAINST EVICTION: NUMBERS AND INTERPRETATION
This section presents the descriptive quantitative and doctrinal findings of the SCA.By analysing these, the Conclusions and Decisions, the scope and content of the eviction protections described are unravelled.This section argues that the practical effect of the right to housing may be hindered by the ECSR's vague exposition of these protections.
Figure 1 shows that 46 countries have signed the RESC, of which 42 have ratified the Charter.However, only 15 countries have accepted Article 31 obligations. 50 also shows that a significant number of Articles 16 and 31 Conclusions address evictions.In more than half of these Conclusions, the ECSR ruled that the State Party did not conform with the RESC.

A. Overview of the Data
Table 2 focuses on Article 16 and 31 Decisions.In Article 31 Decisions, the ECSR considers each subparagraph of the Article separately.However, this table illustrates the occasions in which at least one paragraph of Article 31 was found to be violated.Within the Article 16 Decisions, the ECSR often considers how Article 16 applies to a range of legal issues presented by the applicants.As such, within one Decision, a State can be found to have violated Article 16 in relation to one issue, but found in conformity in relation to another.This table presents the times in which Article 16 was found to be violated in relation to at least one issue in the Decision.This table reveals that evictions are discussed in 10 Article 31 Decisions and 10 Article 16 Decisions.The table also indicates the overlap between Article 16 and 31 as 10 Decisions concerning evictions refer to both articles.
To ensure that RESC rights are practically enforced in the domestic legal context, the ECSR has interpreted both Articles as offering safeguards against eviction. 53Through our analysis, we identified and revealed two distinct types of eviction protections existing under Articles 16 and 31: ex-ante and ex-post protections.This categorisation, inspired by Brems' analysis of the ECtHR's procedural protections,55 allows for a deeper understanding of the RESC framework.
In the context of the RESC, ex-ante pertains to the procedures leading up to eviction and expost is intended to mitigate the adverse effects of evictions when the ex-ante protections were not adhered to.We will examine these safeguards in the following subsections.

B. Ex-Ante Eviction Protections
The ECSR focuses its eviction protections on forced evictions, which it defines as 'the deprivation of housing which a person occupied due to insolvency or wrongful occupation'. 56This subsection concentrates on the ECSR's ex-ante eviction protections. 57To comply with the RESC, State parties must ensure that these protections are integrated into the domestic legal system. 58If only some of these protections are implemented, the ECSR deems the State noncompliant with the RESC. 59Our analysis reveals the ex-ante protections oblige States Parties to: (1) ensure that people threatened with evictions can access legal remedies and aid, (2) ensure a reasonable notice period before an eviction, (3) consult parties affected to find alternative solutions to evictions, (4) prohibit night and winter evictions and to (5) prohibit evictions from shelters.
Table 3 shows that the obligation to provide evictees with access to legal remedies and aid is mentioned 96 times.The ECSR states that this obligation means that occupiers and tenants must have access to 'affordable and impartial legal and non-legal remedies', 60 especially 'for those who cannot pay legal fees themselves'. 62This requirement entails evictees being sufficiently aware of their right to challenge an eviction notice and how to exercise this right. 63The ECSR seems satisfied when individuals can access legal aid based on their 'income, expenditures, wealth and maintenance liability'. 64However, in one Article 16 Decision, the situation whereby Travellers could only access free legal advice and representation from a charity was not sufficient to meet this requirement. 65In another Article 16 Decision, the ECSR found the State in violation of Article 16 partly because the legal remedies available in the country were not sufficiently accessible to Roma families threatened by eviction. 66The requirement to ensure a reasonable notice period before an eviction is mentioned in a total of 87 Conclusions and Decisions.The ECSR illustrated that a notice period of at least 2 months before an eviction is reasonable and acceptable, anything less is insufficient. 67he third ex-ante eviction protection deals with the obligation to consult parties to find alternative solutions to eviction and is mentioned in 77 Conclusions and Decisions.This protection aims to ensure everyone has a 'degree of security of tenure'. 68The Conclusions show that there should be a 'genuine consultation with those affected', particularly before mass forced evictions or community relocations. 69In one Decision, the ECSR found a violation of Article 16 because the legislation governing evictions did not contain all the necessary safeguards, including a prior consultation of affected parties. 70Genuine consultation consists of more than informing an occupant that an eviction will occur; it involves a dialogue with the evictee in which the exact time and date of the eviction are clear and information about the relocation site is provided (if applicable). 71One Conclusion suggests that the consultation process should also include a discussion of the relocated people's housing needs. 72In the Decisions, the ECSR elaborates on this protection by referencing the UN CESCR's General Comment No. 7. 73 This General Comment states that genuine consultation should attempt to avoid or minimise the need to use force in all evictions. 74Apart from this, neither the Decisions nor Conclusions offer guidance on how the consultation process ought to be conducted or what the desired outcome is.Additionally, the ECSR does not review the State parties' consultation practice to ascertain whether the evictees are sufficiently involved in the decision-making process.The limited information regarding this protection is noteworthy as it is mentioned in 77 Conclusions and Decisions, thus reaffirming its indispensable nature. 75he fourth ex-ante eviction protection is more straightforward and deals with the obligation to prohibit night and winter evictions.It seems to protect people from eviction during what is the coldest time of the day and the year. 76The ECSR has found States not in conformity with Article 16 if families can be evicted during winter. 77While this protective measure is mentioned in 49 Conclusions and Decisions, the ECSR does not give any additional information on this protection.The final ex-ante eviction protection prohibits evictions from shelters or emergency accommodations and is mentioned in 36 Conclusions and Decisions.The ECSR says it is vital to ban evictions from shelters or other basic emergency homeless accommodation as 'it would place the person concerned, particularly children, in a situation of extreme helplessness which is contrary to the respect for their human dignity'. 78Although the Conclusions make it clear that everyone within the State is entitled to this protection, 79 the ECSR's discussion in the Decisions has thus far concentrated solely on 'unlawfully present persons' within the State. 80Furthermore, The first protection deals with the provision of compensation after an illegal eviction and is discussed in 95 Conclusions and Decisions.In the Conclusions, the ECSR has approved of instances whereby domestic law ensures tenants receive compensation from their landlord for, what the CESCR characterises as 'inconvenience' or harm caused by the eviction. 84In one Conclusion, the ECSR refers to the UN CESCR's recommendation that compensation should be enough to enable the evictee to acquire adequate accommodation. 85However, the ECSR does not describe the amount of compensation or the threshold of inconvenience that must be reached before an evictee is entitled to compensation.The ECSR does not develop this protection in the Decisions. 86he two following ex-post eviction protections are closely related.They are concerned with the obligation to ensure that alternative accommodation is available for evicted persons and to adopt measures to re-house or financially assist the persons involved where an eviction is justified by public interest.The requirement to ensure that alternative accommodation is available after an eviction can be interpreted as both ex-ante and ex-post.In some Conclusions, it is interpreted as prohibiting an eviction if there is 'no possibility to access alternative accommodation'. 87Still, in most cases, it seems to primarily be an ex-post protection. 88n the Decisions, the ECSR sketches out what proposals for alternative accommodation should consist of. 89One Decision stated that offers of alternative accommodation must be 'sufficiently long-term' for evicted members of the Roma community. 90The alternative accommodation should not be such that Roma or Travellers are in danger of being excluded from access to services and amenities. 91Furthermore, proposals for alternative accommodation should be culturally appropriate for members of the Roma community. 92The ECSR has found Ireland in violation of Article 16 where there is no obligation on local authorities to provide alternative accommodation where Travellers are evicted from both local authority and non-local authority land. 93losely related to the above obligation is the requirement that 'even when an eviction is justified by the public interest, authorities must adopt measures to re-house or financially assist the persons concerned'. 94This statement of 'even when' suggests that the ECSR views it as a requirement in all evictions, including those not justified in the public interest.There is limited insight into what the ECSR mean by the public interest but they have stated that it may include situations where 'dwellings are unfit for habitation' or 'when they are being demolished, reconstructed or repurposed'. 95However, the ECSR does not comprehensively explain the public interests that may justify a forced eviction or the steps the domestic authorities should take to re-house or financially assist the affected person(s).
The fourth ex-post protection aims to ensure that when eviction is taking place, they are 'carried out under conditions which respect the dignity of the persons concerned'. 96This suggests that during eviction procedures, States must continuously monitor their behaviour to ensure they are respecting the dignity of the evictee throughout the process.In the Conclusions, the ECSR mentions the obligation to respect the person's rights separately from the person's dignity.However, in this section, we consider the person's rights and dignity together as they overlap significantly.States have been found not in conformity with Article 31 if their eviction procedures do not respect this requirement. 97In Italy's 2011 Conclusion, the destruction of the personal belongings of Roma and Sinti people during an eviction was said to disrespect the person's dignity. 98In some Conclusions, the ECSR suggests that the very existence of procedural safeguards ensures that evictions are carried out concerning the dignity of persons. 99or example, the ECSR stated that the prohibition of night and winter evictions protects 'the human dignity of the persons concerned'. 100he Decisions provide additional insight into the meaning of this protection. 101One Decision stated that evictions that occurred without consideration of the presence of children, pregnant women, elderly, sick or disabled persons, along with the destruction of possessions, were a breach of human dignity. 102However, the lack of clarity regarding what specific eviction measures respect a person's dignity and rights is striking, considering that the ECSR has regarded respect for human dignity as a 'fundamental value at the core of positive European human rights law'. 103

D. Flexibility and Inconsistencies in International Law
Our analysis has demonstrated that the ECSR has left room for interpretation regarding the content, scope and domestic implementation of the Article 16 and 31 eviction protections.This allows States to develop the protections to fit their legal system.This could be viewed as an intentional tactic to facilitate and mobilise 'the consent of states required to establish binding international law'. 104Petit writes that this flexibility is a positive feature of the RESC system because 'its effectiveness is based primarily on the principle of persuasion to achieve long-term aims'. 105Nevertheless, this approach allows for inconsistencies regarding eviction protections.However, it has been observed that inconsistency in international law is unavoidable and perhaps even necessary. 106On the one hand, Richemond suggests that 'given the present state of the international system, the codification of a precise norm may not be preferable to the ambiguous regime currently in place'. 107On the other hand, Crossley argues that 'inconsistent practice diminishes the prospects of the development of norms of protections and associated practices and institutions'. 108Particularly in relation to the right to housing, while the ECSR's flexibility allows States to define the content of the eviction protections, it is often unclear what States need to do in order to conform with their international obligations.Ultimately, the clarity, content and application of the right to housing are hindered by the ECSR's, often abstracted approach.

THE RIGHT TO HOUSING AND THE RIGHT TO PROPERTY IN THE REVISED EUROPEAN SOCIAL CHARTER
There is no right to property under the RESC. 109As a result, property rights are not usually expressly discussed in Articles 16 and 31 Decisions and Conclusions.The most extensive discussion occurred in one Article 16 Decision where the majority of ECSR members dismissed the idea that Article 16 contains a right to enjoy property, like that provided by Article 1 of the First Protocol to the ECHR. 110They stated that Article 16 guarantees an entitlement to housing 'which could, in certain cases, encompass elements of the right of property'. 111In the dissenting opinion, three ECSR members argued that the decision to dismiss the analogy between Article 16 and Article 1 of the First Protocol was ill-founded and undermined the indivisibility of all fundamental rights as limitations on property must conform to a relation of proportionality with the aim pursued. 112Beyond this, the discussion of the right to property in the Articles 16 and 31 jurisprudence is rather limited.The ex-ante and ex-post eviction protections discussed in Section 3 are frequently and consistently mentioned in the Decisions and Conclusions.They can be described as 'must have' protections, as States can be found in violation of Articles 16 and 31 if they are found not to have these protections in place.However, there are some protections against evictions which are infrequently mentioned.In contrast to the "must have" protections, there are some protections which the ECSR does not review in a consistent manner.These can be described as 'nice to have' protections as the ECSR does not find the State in violation of the RESC if these protections are not mentioned in the State report.Yet, in instances where these protections exist in domestic law, the ECSR notes their existence with approval but does not state that they are necessary in order to conform with the RESC.
Regarding the 'must have' protections, the right to property is not dealt with in a substantial manner.Instead, the right to property is acknowledged indirectly, as evidenced in their discussions on the distinctions between tenants' and property owners' rights, 113 domestic property rights provisions, 114 references to ECtHR's judgments on the right to property and housing, 115 references to domestic peak court decisions that discuss property Obligation to obtain a court order before an eviction 9 (53) 0 (0) 4 ( 24) 4 ( 24) 17 (100)   Limitations on evictions of illegal occupiers 0 (0) 6 ( 43) 5 ( 36) 3 ( 22) 14 (100)   rights, 116 and their summaries of the submissions made by the applicants or the government that reference property interests. 117he ECSR acknowledges the role of the right to property to a greater extent in the 'nice to have' protections.In examining these protections, the ECSR acknowledges the existence of a right to property and its clash with the right to housing, by referring to landlords' rights or by explaining that the rights of occupiers need to be considered.Table 5 presents the four 'nice to have' protections against evictions, which include (1) the obligation to carry out a proportionality analysis, (2) a tenant's right to appeal an eviction, (3) limitations on the evictions of illegal occupiers, and (4) the obligation to obtain a court order before an eviction.
In 25 Conclusions, the ECSR acknowledges the importance of a tenant's right to appeal an eviction order. 118Sometimes, the ECSR requests that State reports contain more information about this requirement. 119While the ECSR does not state it, this requirement could be viewed as curtailing a property owner's right to exclude tenants from the property. 120he ECSR has mentioned instances where a forced eviction is only possible if the landlord has obtained a court order. 121In an Article 16 Conclusion, the ECSR requested that the State provide more information about this requirement and noted that without this information, there would be 'nothing to establish that there are adequate safeguards against eviction for families'. 122gain, this measure presents an obstacle for property owners as they should apply to a court before getting an eviction order.
Furthermore, the ECSR noted that illegal occupation of a site or dwelling might justify the eviction of the occupants. 123Thus, it implicitly acknowledges that some other interests (such as property interests) may justify an eviction.However, they state that the criteria for illegal occupation must not be unduly wide. 124Again, by interpreting Articles 16 and 31 as protecting illegal occupiers' the right to housing, an owner's right to reclaim possession over their property may be restricted.
In 34 Conclusions and Decisions, the ECSR mentioned the requirement to conduct a proportionality analysis in eviction cases.The remainder of this section focuses on this protective measure for two reasons.Firstly, as it is the most mentioned measure, the data availability will lead to a rich analysis.Moreover, the proportionality analysis is often used to tackle conflicts of rights, which will provide beneficial insights into whether and how the ECSR has used or developed this concept to tackling conflicts between the right to housing and property in eviction cases.

A. Proportionality in Articles 16 and 31
The meaning, definition and use of proportionality in human rights law have been the subject of much academic literature. 125Sieckmann describes proportionality as a test which applies to conflicts of principles which protect rights. 126A proportionality analysis can help to determine whether a human rights interference is justified by looking at the reasons for and intensity of the interference. 127Young outlines that a proportionality analysis can consist of a set of 'sequential questions', beginning once a human right has been infringed. 128These questions can be summarised as follows: (1) Does the infringement further a legitimate aim?, (2) Is the measure causing the infringement necessary?, (3) Do the benefits outweigh the costs imposed on the rights-bearer? 129he ECSR stated that a 'proportionality principle' is required under the RESC, particularly in the context of Article E, the non-discrimination clause. 130However, in the context of evictions, the application of a proportionality analysis is inconsistent and unclear. 131There are limited direct references to a proportionality analysis in relation to Article 31.However, in discussing Article E in conjunction with Article 31, the ECSR stated that there must be a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'. 132nterestingly, this is similar to the ECtHR wording when discussing proportionality. 133In terms of establishing this relationship of proportionality, the ECSR merely states that Governments enjoy 'a margin of appreciation in determining ( . . . ) the balance to be struck between the general interest and the interests of a specific group'. 134On one occasion, ECtHR case law was cited to explain that the margin of appreciation will be narrower where the right at stake is crucial to the individual's enjoyment of intimate or critical rights. 135Nevertheless, the ECSR has only assessed if the State exceeded its margin of appreciation in one Decision. 136In one Article 16 Conclusion, the ECSR requested Spain to give examples from domestic case law on how the judicial review of evictions is carried out and if it includes a proportionality analysis. 137here has also been some insight into how a proportionality analysis regarding housing and evictions can be carried out in relation to Articles E and 19.While these statements do not directly apply to Article 16 or 31, the ECSR has stated that it 'is impossible to draw watertight divisions between the material scope of each article or paragraph' of the RESC. 138Hence, by examining the application of the proportionality principle in specific contexts, we can gain insight into its potential application to Articles 16 and 31.The ECSR explained that the unlawful occupation of private property can constitute a genuine and serious threat to the fundamental interests of society that could justify an eviction. 139However, in balancing the interests in this case, the ECSR did not consider that the unlawful occupation of private property poses a serious threat to the fundamental interests of society.This shows that the rights of the illegal occupiers must be balanced with other rights, including the rights of the property owners.
In conclusion, we see that the ECSR has been unclear about the necessity of a proportionality test in the context of evictions.They apply this test infrequently and in an inconsistent manner.In particular, insights into the proportionality analysis are scattered across Conclusions and Decisions of several articles, which makes it unclear how a proportionality test in eviction cases should be applied.

B. Balancing of Interests in Eviction Cases
A proportionality analysis often presupposes a balancing exercise. 140There is an intrinsic relation between proportionality and balancing: both are used to establish a priority relation between conflicting arguments and assigning relative importance or weight to the competing arguments. 141The priority assigned to these interests will depend on the facts of the case and the relative importance of the competing principles. 142In the context of evictions, the occupier's circumstances and interests and the property owner's interests can come into conflict.The ECSR has provided insight into the consideration of an individual's circumstances and the weight afforded to this aspect before an eviction occurs.The following circumstances have been considered relevant to the balancing of interests: the circumstances of the individual or family being evicted, 143 illness or other circumstances impacting the individual's ability to pay rent, 144 extreme social difficulties that hinder the tenant's ability to pay rent, 145 and exceptional circumstances, such as a death in the family or loss of employment, that may impact the tenant's ability to pay rent. 146In one Conclusion on Article 16, the State was advised to show how their judicial proportionality assessment considers the effects of the eviction on the persons concerned. 147he Decisions adopt a slightly different approach by focusing on particular vulnerabilities of specific minority groups.For example, ECSR found that France violated Article 31 as the 'specific differences of Travellers' were not considered when implementing the right to housing.Additionally, the ECSR found Bulgaria in violation of Article 16 because the domestic eviction legislation had a disproportionate effect on Roma people. 148Furthermore, in the European Roma and Travellers Forum v Czech Republic decision, the ECSR endorsed the ECtHR's proportionality assessment which stated that 'special consideration' should be given to Gypsies and Travellers vulnerable position when dealing with unlawful settlements and evictions. 149In other instances, the ECSR outlined how some States carry out proportionality analyses, but they do not state if this conforms with the RESC. 150he ECSR does not consider the landowner's right to property in the proportionality analysis in-depth.The ECSR has noted with approval a proportionality test prescribed by Estonian law, which considers the property owner's interests and other circumstances, including the debtor's family and economic situation. 151In an Article 31(2) Conclusion, the ECSR approvingly notes that both the tenant's and landlord's circumstances and interests are considered. 152In European Roma and Traveller Forum v France, the ECSR mentions balancing a specific group's interests but does not suggest ways to achieve this balance. 153Many Decisions deal with the evictions of illegal occupiers, but the ECSR does not discuss the ownership of the occupied land, even though some property interests must be involved to warrant an eviction. 154However, the acknowledgement of the necessity to balance the tenant's interests insinuates that there are some other interests (such as property interests) to weigh against.

C. The Necessity of Consideration of the Right to Property
The above analysis shows that Articles 16 and 31 Conclusions and Decisions fail to elaborate on how the right to housing and the right to property could be balanced.This is disappointing because to protect and develop Articles 16 and 31, clashes between the property owner's right to property and occupier's right to housing should be addressed.By ignoring this clash, States are left struggling to understand how these articles and the right to property can be harmonised in their legal systems.This is seen in State reports under the State Reporting Procedure. 155For example, in the 17th national report published by the French government, the French Declaration of the Rights of the Citizen is quoted as describing the right to property as an 'inviolable and sacred right' that 'no one can be deprived of'. 156The report refers to the limitations that this right places on the right to housing, particularly regarding evacuating illegal camps to 'put an end to an illegal infringement of property rights'. 157It remains unclear how this can be harmonised with the RESC's right to housing.
Besides that, the Applicants' and State Parties' submissions under the Collective Complaints Procedure illustrate that the clash between the right to housing and property is an important topic. 158For example, in Médicines du Monde v France, the Government notes that the evictions are intended to bring an end to unlawful occupation that infringes on the property owners' rights. 159astly, this issue is also seen in the State reports explaining why they have not accepted certain RESC provisions.Ireland's fourth report on the non-accepted RESC provisions stated that Article 31 could not be adopted due to existing provisions in Bunreacht na hÉireann (the Irish Constitution). 160While the report does not explicitly refer to the provision in question, it can be presumed it refers to Article 43, which protects the right to property. 161rause notes that property rights are closely connected with the 'social and economic policies of states, and thus there will always be a certain amount of reluctance towards international supervision of these rights'. 162Nevertheless, it is clear that the ECSR's lack of guidance on how the right to housing and property can be interpreted to make them compatible (through a proportionality analysis, for example) does not assist or encourage the State to develop the right to housing.The ECSR, as a body separated from domestic political pressures, are uniquely positioned to address this clash.By pretending this conflict between the right to property and housing does not occur or exist, the ECSR fails to strengthen the right to housing in Europe and ultimately limits its implementation in the domestic context.
The ECSR needs to elaborate more on how the interests involved in an eviction could be balanced to develop the right to housing.The main gateway to do so seems to be the proportionality analysis.Perhaps, the meaning and content of the proportionality analysis can be developed over time as more Articles 16 and 31 Conclusions and Decisions are published by the ECSR.This is likely because the ECSR has already endorsed instances whereby the occupiers' circumstances are considered before an eviction is issued.Furthermore, the ECSR's statement that States cannot enforce any sanction or measures against illegal occupiers due to the mere fact that they are illegally occupying land shows that the ECSR recognises that the landowner's right to property is an essential factor to consider.Yet, it is also clear that this right does not trump an illegal occupier's right to housing.It seems that the ECSR could, therefore, make a substantial challenge to the assumption that the right to housing and the right property are incompatible.

COMPARISON OF THE UNITED NATIONS COMMITTEE ON ECONOMIC SOCIAL AND CULTURAL RIGHTS' AND THE EUROPEAN COMMITTEE ON SOCIAL RIGHTS' APPROACHES A. The UN CESCR's Proportionality Analysis
To provide inspiration on how to address the conflict between the right to housing and the right to property, this section compares the ECSR's approach with the UN CESR's approach.
We outline the approach adopted by the UN and conclude that it engages with the different interests at play in eviction cases to a greater extent, in particular, the right to property.The ICESCR acknowledges a right to housing under Article 11 ICESCR but does not protect a right to property. 163Through General Comments and the individual complaint procedure, the UN CESCR has interpreted Article 11 as requiring States to ensure that a proportionality test is carried out before an eviction occurs.In-depth research into the individual complaint procedure has been published. 164This article contributes to this research by focusing on the UN CESCR's proportionality analysis and comparing this analysis to that of the ECSR. 165efore we examine the proportionality assessment, it is important to acknowledge that the UN CESCR's definition of forced eviction is different from that of the ECSR.The UN CESCR defines forced eviction as the 'permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection'. 166The UN CESCR requires that all evictions need to be carried out 'in accordance with general principles of reasonableness and proportionality'. 167If this requirement is not met, the eviction qualifies as a forced eviction under the ICESCR.The ECSR uses a much broader definition, explaining a forced eviction as 'the deprivation of housing which a person occupied due to insolvency or wrongful occupation'. 168wo studies have considered the role of property rights in the UN CESCR's eviction cases within the individual complaint procedure. 169Benito Sánchez notes that States are advised to ensure a framework is in place that 'allows judicial authorities to carry out a proportionality assessment having regard to the aim pursued by the eviction measure and its consequences for the evicted person'. 170He explains that the UN requires that the evictee's specific situation be balanced with the interests of private property owners during an eviction procedure. 171owever, Casla claims that the UN CESCR has not sufficiently addressed the right to property and whether it should be restricted in the name of economic, social and cultural rights. 172He points out that property 'is of huge significance when dealing with housing, particularly in eviction disputes and therefore it is necessary to acknowledge the role of property to develop the right to housing. 173Casla concludes that this could be done by weighing or balancing the interests based on proportionality. 174he proportionality requirement stemming from Article 11 ICESCR is developed through the individual complaint procedure. 175When explaining how to determine the proportionality of an eviction, the UN CESCR has recognised that the right to property is a domestic factor that State parties need to engage with when deciding on the proportionality of an eviction.An example of this can be found in the complaint of López Albán. 176In this case, a single mother and her five dependent children were evicted from a bank-owned property she was illegally occupying. 177The UN CESCR stated that while 'the right to property is not a Covenant right', the 'State party has a legitimate interest in ensuring protection for all rights established in its legal system so long as it does not conflict with the rights contained in the Covenant'. 178In particular, they noted that the State party has a valid reason for evicting illegal occupants, as failing to do so would 'constitute a violation of the owner's right to property under national law'. 179In this proportionality assessment, the UN CESCR explicitly recognises both the consequences of the eviction on the evictee and the owner's need to recover possession of the property. 180In the Ben Djazia case, the UN CESCR insisted that the State party demonstrate that the case's specific circumstances were considered before an eviction was ordered. 181The circumstances that should be considered include: (1) the possible consequences the eviction would have for the applicant; 182 (2) if assurance was given to the evictee that they would not be left homeless or exposed to other human rights violations following the evictions and (3) to take into account the availability of alternative accommodation and the evictee's financial ability to obtain private rental accommodation. 183nother example of the proportionality analysis is seen in the case of Fátima El Ayoubi. 184Again, the right to private property was considered a legitimate interest that should be protected insofar as it does not conflict with ICESCR rights. 185It was noted that allowing illegal occupiers to remain on a property where the owner has contested their right to occupy the premises, could violate the owner's right to property. 186To ascertain if the eviction was proportionate to the aim pursued, the UN CESCR stated that the applicant's circumstances needed to be considered, including their 'vulnerable economic situation', relevant health issues, their lack of alternative accommodation and the fact that the competent authorities did not find a solution to the family's situation. 187Yet, these circumstances need to be balanced with 'the owner's need to recover possession of the property'. 188As the State had failed to carry out this proportionality analysis, a violation of Article 11 ICESCR was found. 189imilarly, in Hakima El Gourmari and Ahmed Tidli, the UN CESCR noted that the right to property and the non-payment of rent are legitimate reasons for a property owner to seek an eviction order. 190But these property interests need to be balanced with the consequences for the evicted persons. 191However, in the Soraya Moreno Romero case, the UN CESCR noted that State parties enjoy a degree of discretion when regulating unlawful occupation of property, but that this discretion must be compatible with the ICESCR. 192Again, they repeated that a proportionality test should consider the aim of the eviction and the impact on the consequences for the evicted person. 193The State was found in conformity with Article 11 because the State had taken all steps to protect the rights of the author, including offers of alternative accommodation which were declined by the applicant. 194

B. Comparison with the ECSR and Concluding Remarks
In this section, we conduct a comparative analysis of the approaches taken by the UN CESCR and the ECSR regarding the balancing of the right to housing and the right to property.Our focus will be on identifying the three most relevant similarities and the two most striking differences between the two bodies.The aim of this comparison is not to provide an exhaustive comparison of all differences between both systems.Instead, we aim to compare the manner in which both bodies deal with conflicts of the right to property and housing in the context of evictions and to demonstrate how the UN CESCR might serve as an inspiration to the ECSR in this regard.
The first similarity is that, in general, neither bodies carries out a direct proportionality analysis.Instead, they require (in the case of the UN CESCR) or advise (in the case of the ECSR) contracting parties to ensure one is included in their eviction procedure.However, in some recent cases, such as L.J.W v Belgium, the UN CESCR seem to carry out the proportionality by considering the impact on the applicant. 195The second similarity is that both bodies outline the individual circumstances that should be taken into account when carrying out a proportionality analysis.Most notably both bodies necessitate that the impact of the eviction on the evicted person be considered, for example, the availability and accessibility of alternative accommodation.The third similarity is that both bodies agree that the right to housing should apply to instances of illegal occupancy, establishing that the right to housing is not reserved for those with legal tenancy agreements.However, there are some clear differences in both approaches.First, the UN CESCR provides in-depth information regarding their eviction protections.For example, in relation to the obligation to provide alternative housing to evicted persons who need it, the UN CESCR explain in-depth what this should consist of and outline that if the Applicant refused these offers, they must demonstrate why this offer was unacceptable. 196This is unlike the ECSR, who offer less information in relation to this requirement.
proportionality in eviction cases, this article shows that the ECSR provides some guidance regarding the relevant circumstances to consider when balancing interests.Yet, the right to property is not discussed to a sufficient degree in order to understand how it can be balanced with the right to housing.
This article highlights the presence of both flexibility and inconsistencies in the development and application of the international right to housing.Through our analysis, we demonstrate that the RESC system allows for significant flexibility in the domestic implementation of eviction protections.This can be viewed as both a positive and negative attribute.On one hand, this flexibility allows States to adapt the protections to their specific contexts.On the other hand, it can also create confusion due to the lack of clear guidance on the content of the protections, making it difficult for States to conform to the RESC's standards.Furthermore, our study finds that the flexibility in the RESC system has resulted in some inconsistencies in the ECSR's approach towards proportionality.While the ECSR acknowledges the existence of a proportionality principle under the RESC, it is unclear how this principle should be applied to evictions.This article sheds light on these issues, highlighting the need for guidance to improve the consistency and effectiveness of the right to housing.
The comparison between the ECSR and the UN CESCR highlighted significant differences in their approaches to balancing the right to housing with the right to property.The UN directly acknowledges the role and importance of the right to property when assessing the proportionality of evictions, while the ECSR only indirectly addresses the right to property.In the context of the RESC, the property interests at stake in eviction cases are not dealt with in-depth.This lack of attention to all of the relevant interests, including the occupier's right to housing and the landowner's right to property, is concerning because it can weaken the practical impact of the international right to housing.State parties may use concepts, such as bindingness, enforceability and hierarchy between different human rights instruments to shield themselves from responsibility. 199Bakiritzi suggests that engaging in more dialogue between the ECSR and the UN CESCR could lead to the development of human rights by aligning the two systems within a global network of human rights protection. 200This alignment could reduce the risk of conflicting approaches and increase the effectiveness of the right to housing.Moreover, this dialogue could provide guidance on the development of the RESC's eviction protections, strengthening the protection of the right to housing.
Figure 1 illustrates the different paragraphs of Article 31 that States have accepted.

Figure 2
Figure 2 shows that a total of 37 States have accepted Article 16, either as part of the European Social Charter 1961 or the RESC.Of these 37 States, 12 States that have also accepted Article 31.Furthermore, five countries have signed the RESC but have not accepted Article 16.
Articles 16 and 31 Conclusions and Decisions.While the provisions of the RESC are binding, the Conclusions and Decisions are not. 31Still, they carry considerable weight for domestic judges and policymakers, leading to significant changes in the legal systems of State parties. 32In total, 26,199 Conclusions are published in English on the HUDOC-ESC database between 31 May 1969 and 12 April 2023.Out of the total population of Conclusions, 119 concern State compliance with Article 31 relating to 14 countries. 33Spain accepted Article 31 in 2021 and has yet to receive an Article 31 Conclusion. 34There are considerably more Article 16 Conclusions.There were 395 Article 16

Table 1 presents the number of Conclusions on Articles 16 and 31. It shows that most Conclu- sions concern Article 16. The State was found in conformity with Article 16 in 42 per cent of the Conclusions. The ECSR publishes Conclusions on each subsection of Article 31 separately
. Table1depicts that most of the Article 31 Conclusions address paragraph 2. In half of the Conclusions on Article 31, the State did not conform with the provision.The ECSR found that the State conformed with Article 31 in only 24 per cent of the Conclusions.The ECSR deferred issuing a Conclusion, meaning they did not decide on the State's compliance, on 107 occasions because the State Party did not provide sufficient information.This Table