In February 2024, hundreds of residents of privately and council-owned houses in Aberdeen began being moved out of their homes after around 500 homes were found to have been constructed using reinforced autoclaved aerated concrete (RAAC). RAAC is a lightweight, porous version of concrete commonly used between 1950 to 1990 that is vulnerable to water ingress, decay and collapse. This unenviable catastrophe has demanded a re-examination into what housing rights are and do, three aspects of which I explore.

Austerity kills: Policy versus rights

As a start, the crisis highlights that no neat line between government policy and human rights can—or indeed, should—be drawn. The provision of socio-economic entitlements such as housing is commonly treated as a non-justiciable policy decision within the exclusive decisional remit of the political branches of government. This, however, does not mean that human rights play no part.

Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), ratified by the UK in May 1976, recognises a right to adequate housing flowing from the right to an adequate standard of living. In its fourth General Comment (1991), the ESCR Committee defined “adequate housing” to encompass “habitability” which requires that the “physical safety of occupants be guaranteed” [8(d)]. With a lifespan of roughly 30 years, RAAC is too weak a foundation to satisfy this obligation.

The motive for using RAAC was cheaper costs. But austerity can cause lives to come crumbling down, emphasising that the content of rights must inform the execution of policies.

The interconnectedness of rights: A home versus a house

But human rights are do not exist in silos; they are interconnected. As such, the content of the right to housing must be informed by other rights.

Several of those being required to be rehoused—and whom are particularly anxious to—are women with childcare responsibilities living in council homes, and some of these women have children with disabilities. Therefore, considerations of equality and access to education require not only staying close to schools and support networks, but also understanding that major transitions can be especially destabilising and traumatic for some groups of people, such as Autistic children. This notwithstanding however, the truth is that people form memories and attachments to places that become home, and that to be moved abruptly is deeply unsettling. These concerns must be accounted for.

These factors underscore the duty under article 11 of ICESCR to meaningfully engage with affected persons and communities when there are proposals to evict or resettle them, to identify their unique needs, and to strategise collaboratively to fulfil these (General Comment 4 [8],[12]; General Comment 7 [13],[15]).

Temporary accommodation: Positive versus negative duties

Meaningful engagement is also important for what happens in the interim. An eviction for the purpose of resettlement is a breach of the state’s ‘negative duty’ not to interfere with one’s housing right (including access), yet the interference stems from carrying out the ‘positive duty’ to monitor implementation of the right (through which the danger was detected).

This gives rise to a further positive duty to provide those affected with temporary accommodation. In this regard, General Comment 7 is emphatic: “Evictions should not result in individuals being rendered homeless … the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing … is available” [16]. This duty has been highly contested (even if jurisprudentially cemented) in South Africa, where evictions are sought against persons without legal title. However, this duty can hardly be refuted in an instance where the state itself built and leased the homes under recognised lease agreements.

What this shows is that human rights are not themselves positive or negative in nature, but rather encompass a range of duties that co-exist, are successive, and are mutually reinforcing.

Conclusion

“The right to housing should be seen as the right to live somewhere in security, peace and dignity”: this quote—by the UN Committee on Economic, Social and Cultural Rights—appears front and centre on the Scottish Human Rights Commissions webpage. By positioning housing as a right, the Aberdeen RAAC crisis is a paradigmatic case of myth busting as to what the right to housing is (a policy goal versus a justiciable right), how people are affected (forming homes nested in houses), and how to achieve fulfilment of the right (through positive and negative duties).

International human rights law provides a compelling framework for how to assess and approach these crises. It would be wise for Scotland to have recourse to this framework as it continues to mitigate and manage the crisis.