Transitional Justice in Housing Injustice: The Case of Housing Rights Violations Within Settler Democracies.

• Author: Totry-Jubran, Manal

TABLE OF CONTENTS I. INTRODUCTION 796 II. SETTLER DEMOCRACIES 800 III. THE RIGHT TO (ADEQUATE) HOUSING 802 IV. PROTECTION AND VIOLATION OF HOUSING RIGHTS IN SETTLER 809 DEMOCRACIES A. Canada 810 B. Australia 813 C. The United States 816 D. Israel 821 V. TRANSITIONAL JUSTICE IN SETTLER DEMOCRACIES 826 A. Transitional Justice without Transition 829 B. Transitional Justice and Social Rights 830 VI. INCORPORATING TRANSITIONAL JUSTICE MECHANISMS IN HOUSING 831 POLICY A. Institutional Reform 833 B. Reparations and Restitution Programs 835 C. Participation as Political Constituencies 836 VII. CONCLUSION 838 I. INTRODUCTION

Housing is one of the necessities of life and fulfills a variety of critical functions in contemporary society. (1) It encompasses much more than a physical shelter and having a roof over one's head, (2) as it provides a sense of place, belonging, comfort, and security. (3) Where people live plays a crucial role in fixing their place in society and their interaction with others because it affects the level of education they acquire and their social and economic mobility. (4)

In acknowledging its importance, the right to housing has been recognized by international human rights treaties as an integral part of the right to an adequate standard of living. (5) Many states have ratified these treaties and incorporated protection of some aspects of housing rights into their constitutions (6) and domestic legislation. (7) Others have not enacted any legislation in recognition of housing rights (8) but provide some legal remedies for violations of housing rights. (9) Despite this, domestic and international reports indicate that housing rights are constantly being violated by states in differing levels and forms. Such violations include forced eviction, displacements, and discrimination in housing. (10)

This Article focuses on housing rights violations within "settler democracies," which are multicultural societies that consist of two groups: (1) settlers (emigrants) who came to reside in the country and (2) indigenous groups who are natives of the place. (11) Such countries have been built upon the political exclusion and the marginalization of indigenous ethnic groups, citizens of their countries, through various forms of dispossession of both land and the power of self-government. (12)

Settler democracies share common features of housing rights violations committed against marginalized groups, such as unequal distribution of land, forced evictions, massive expropriations, crowdedness, and housing demolitions within indigenous localities. (13) As a result, the victimized groups remain marginalized and without resources. (14) These violations are a result of structural and systematic discriminatory spatial and housing policies embedded in the legal and political systems. (15) Systemic discrimination refers to the existence of a general pattern of discrimination against a particular group of people. (16) The concept of systemic discrimination can be useful to identify relevant criteria for violations of economic, social, and cultural rights. (17)

United Nations (UN) reports indicate that addressing the root causes of conflict appears to be an important function in repairing past injustice. (18) Academics have also argued that addressing past wrongs can serve to lay the foundation of the new political order. (19) Based on this insight, this Article asserts that addressing the root causes of systematic housing rights violations is crucial for dealing with the housing crisis and housing rights violations of marginalized groups and for the creation of a just future and society. Accordingly, it argues that the most suitable theoretical and practical framework in this regard is the transitional justice theory and its mechanisms. (20)

Transitional justice has become the dominant international framework for redressing mass harm and structural injustices. (21) It is both a conceptual theory of justice and a full range of processes that provides practical mechanisms aimed at institutional changes. (22)

Transitional justice is characterized by legal responses that confront the wrongdoings of repressive predecessor regimes in periods of political influx. (23) It requires investigating the roots of systematic and continuous human rights violations to prevent them from reoccurring in the future. (24)

Although transitional justice theory was developed to deal with transitions of political regimes, scholars and UN committees have expanded its application to more diverse contexts of transitions, such as situations in which there are no ongoing political transitions but are ongoing social and economic transitions. (25) This Article joins the developing research on expanding transitional justice and calls for its application to social rights violations within nontransition settler democracies. This Article asserts that transitional justice is the best framework to address housing rights violations within settler democracies that fulfill two conditions. The first is that such states are committed to some extent to the protection and the promotion of human rights. The second is that these states have undergone some sort of transition in their attitude towards acknowledging past injustice. Such acknowledgment would provide the basis for an application of transitional justice mechanisms. (26)

The Article proceeds as follows: the next Part presents an overview of the concept of settler democracies. The third Part elaborates on the scope of the right to housing as defined by international treaties. The fourth Part identifies housing rights violations in four selected settler democracies that share common features: Canada, Australia, the United States, and Israel. The fifth Part introduces the transitional justice approach and makes the case that it is the most suitable theoretical and practical framework for addressing housing rights violations in settler democracies. The sixth Part provides an overview of transitional justice mechanisms that should be applied within housing policies of settler democracies. The Article concludes with a summary.

2. SETTLER DEMOCRACIES

   Settler states are multicultural societies that consist of emigrants, who came to reside in the country, and indigenous groups, who are the native group and became socially and economically marginalized. (27) These states are characterized by ethnic conflict and struggle over dispossession of land, legacies of human rights violations, and the exclusion of indigenous and marginalized groups. (28) The emigrant group usually seeks to replace the original population with a new society of settlers who are regarded as superior. (29) Therefore, in their formative periods settler democracies lead a strategy of ethnic migration and settlement, which creates the country's geographic and ethnic structure. (30)

   Settler states are characterized by patterns of segregation that refrain from mixing indigenous and marginalized groups with other groups in residential spaces and school systems. (31) Usually, land left for the indigenous groups is of poorer quality compared to that possessed by the settlers; it is often more crowded, underdeveloped, and located farther from the center of power. (32)

   The most troubling human rights violations are often those that occur in democratic settler states against indigenous ethnic groups that are citizens of the country. Such societies, which developed a liberal democratic system, are referred to as "settler democracies," and they are the focus of this Article. They include countries such as Canada, Australia, New Zealand, the United States, (33) and Israel. (34) These countries have progressive, liberal, and egalitarian legal systems, and they adhere to differing levels of legal protection of human rights. (35)

   Settler democracies are also characterized by ethnic hierarchies, and some of them are led by "ethnocratic" regimes, (36) which rely on ethnic criteria to ensure their continuing domination. (37) These regimes apply discriminatory land allocation policy that facilitates the domination of the hegemonic ethnic group (the settlers). This results in housing segregation between hegemonic and marginalized groups, such as ethnic minorities and indigenous groups. (38)

   Human rights violations within these states are usually embedded in a structural system of injustice. (39) These violations are troubling because they are wrapped in a complex system of allegedly neutral legal rules and enactments, which are in fact embedded in a long systemic institutional (public and legal) discriminatory spatial and housing policy. In some cases, they are committed under the auspice of the rule of law and legal doctrines, such as terra nullius, (40) and, therefore, are difficult to challenge before a court. (41) Accordingly, the law and courts play a crucial part in the institutionalization of these socio-spatial power structures. (42) However, the ethnocratic elements of each society differ from one country to another, depending heavily on the development of their respective legal-constitutional systems.

   Before presenting the joint characteristics of housing rights violations within these countries and the need for a transitional justice approach to deal with them, the following Part presents an overview of the scope and components of housing rights manifested in international treaties.

3. THE RIGHT TO (ADEQUATE) HOUSING

   Adequate housing encompasses much more than simple shelter (43) or "having a roof over one's head." (44) Housing meets some of the most fundamental human needs; it provides refuge from external physical threats and provides a material base from which to build a livelihood. (45) Housing rights are intrinsically connected with the possibility of realizing an adequate standard of living and impacts the potential for substantive human development. (46) Therefore, inadequate housing not only violates the right for housing but it also...