Human Rights YIMBYism

TLDR: I attempt to articulate a Human Rights YIMBYism, rooted in supporting (and sometimes balancing) a set of key human rights and freedoms (housing, movement, association, property) within the city. While both push back against NIMBYism, broad Human Rights YIMBYism offers a different, and I argue more successful and ethical guide to action and coalition building than narrower Property YIMBYism.

There are many YIMBY (Yes In My BackYard) movements springing up across North America, as well as many detractors. YIMBYism positions itself directly in response to NIMBY (Not in My BackYard) activism, of course, with the latter aimed at preventing new construction, especially adding housing. NIMBYism occurs largely within municipal settings, where unequal participation in housing decisions and arcane regulatory contexts (including, but not limited to zoning) often tend to work against construction of new housing. Here I wanted to briefly set out a grounding of YIMBYism within a Human Rights framework. I’ll ground this discussion within Canadian (and at times specifically BC) Human Rights, as well as broader United Nations frameworks. Key qualifer: I’m not a lawyer! I only play one while blogging. By all means send me corrections where my interpretations fail the bar.

So how do we situate YIMBYisms within a Human Rights framework? Let’s consider the following key articulated human rights, recognized to some extent in most jurisdictions, but varying widely in terms of their legal entrenchment:

  • Right to Housing
  • Freedom of Movement
  • Freedom of Association
  • Property Rights

What I’ll argue is that what Human Rights YIMBYism brings to the table, and to cities, is an attempt to fulfill these (and other) human rights. In some cases this involves making decisions about balancing between these rights. But recognition of multiple rights is key to Human Rights YIMBYism, and grounds discussions between potential allies in shared commitments as well as specific legal tools and reasoning. At the same time, a Human Rights framework helps distinguish this form of YIMBYism from more narrow and less supported Property YIMBYism as well as from NIMBY approaches (and some related spin-offs and intermediaries). Below I elaborate on how each Right relates to YIMBYism.

The Right to Housing

The Right to Housing is the most obvious YIMBY-relevant right. Within Canada, the Right to Housing has long been recognized by UN treaty (1976) (ICESCR see article 11) and more recently made its way into official act (2019), included in Bill C-97, division 19‘s National Housing Strategy Act. But the actual language governing rights is limited, leaving UN comments (4 and 7) codified within a UN fact sheet (no. 21) and a Canadian Parliamentary Primer (van den Berg 2019) attempting to spell out and clarify actual obligations.

The UN Fact Sheet distinguishes between Freedoms and Entitlements arguing both apply to the Right to Adequate Housing, and also lays out a set of criteria describing what Adequate Housing includes, which I’ll screenshot here in full:

Support for YIMBYism is most obvious as a freedom in “The right to choose one’s residence” (which also speaks to Freedom of Movement). Granting people a choice over where to live necessarily entails building enough housing in places where people want to live to make choices available. Human Rights YIMBYism also appears as an entitlement in “Equal and non-discriminatory access to adequate housing,” which explicitly includes protection against segregation (including by property as well as by ethnicity and related categories) and “Participation in housing-related decision-making,” which effectively is what YIMBY activism attempts to achieve. Clear Human Rights YIMBYism also shows up in the definition of adequacy as containing a Location component, providing for access to “employment opportunities, etc.” For all of these reasons, I’d suggest YIMBYism should root itself within Human Rights. Realizing a Right to Housing entails making lots more housing available in places people want to be, striking directly against exclusionary segregation, pushing for broader participation in housing decisions, and insuring that housing is built near employment, various services, and transit centres. Good stuff.

But there’s more! In particular, while the Right to Housing, as articulated by the UN, explicitly denies that States have an obligation to build housing for their entire populations, they require States to effectively meet needs left unmet by private means of housing provision (e.g., those reliant upon private property). In short, the Right to Housing can be read to support and indeed mandate the addition of plentiful Non-market Housing where people cannot secure adequate housing without state intervention. In addition, “freedom from forced eviction” and “security of tenure” tie Human Rights YIMBYism to tenant rights. As stated multiple times in UN guidelines, these are not understood to be absolute rights, but rather reflect the necessity of various protective frameworks (e.g. rent control and the banning of “no cause” evictions) and access to courts in protesting evictions. In effect, according to UN interpretation the Right to Housing must protect tenants, but must also be situated within obligations to respect other existing rights (including the Right to Property, to which I’ll return), as well as support for state capacity to build – and legally expropriate – for the public good.

We can already see UN attentiveness to nestling a Right to Housing within other rights, both directly (in terms of movement, property, and arguably privacy – see freedom from arbitrary interference) and also indirectly (as with affordability considered in relation to peoples’ ability to secure all other rights). But so far this is all at the UN. As argued in the Canadian Primer, treaty obligations don’t fully translate into specific rights to housing. Yet as (finally) realized through Bill C-97, treaties obligate Canada to “further the progressive realization of the right to adequate housing as recognized in the International Covenant on Economic, Social and Cultural Rights.” Interestingly, they also inform and roughly map onto what the courts within Canada have distinguished as “negative rights” (where states avoid interfering with freedoms) and “positive rights” (where states provide entitlements). Prior to Bill C-97, Canada’s courts – especially in BC – have often protected the right to shelter as a freedom (or negative right) as it relates to “Security of Person” (s. 7 of Charter), for instance, protecting against forced evictions from homeless camps when no alternative shelter space has been made available (see Victoria (City) v. Adams in 2008; Abbottsford (City) v. Shantz in 2015; and British Columbia v. Adamson in 2016). But courts have been wary of supporting a positive right as an entitlement. There remains lots of room for Human Rights YIMBYism to advocate in support of recognizing housing as a positive Right to Housing within Canada, addressing all of the above. But also further room for Human Rights YIMBYism to push for a negative right, insofar as municipal processes are interfering with peoples’ Right to Housing.

Freedom of Movement

Like the Right to Housing, the Freedom of Movement is an internationally recognized right. In addition to being included within the Right to Housing, it also has an older and independent grounding, in this case, within article 13 of the Universal Declaration of Human Rights (1948). To whit, “Everyone has the right to freedom of movement and residence within the borders of each State.” For Canada, these rights have also been more directly included within the Canadian Charter (s. 6) since 1982. Specifically, “Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province.” While Charter rights explicitly refer to inter-provincial mobility, I think there’s a strong case for extending them to inter-municipal mobility on multiple grounds. First, since municipalities cover most parts of provinces where people might desire to take up residence, the collection of municipal restrictions upon housing can effectively work to prevent freedom of inter-provincial mobility. Second, since municipalities – as echoed in the words of BC’s attorney general in a recent Supreme Court filing – are “creatures of provincial governments with no constitutional status,” then provinces have a special duty to prevent their creatures from hampering freedom of movement. This duty would appear to be further heightened for the key municipalities at the heart of “gateway” metropolises, through which most inter-provincial migrants would be likely to arrive (e.g. Vancouver). Finally, of course, a more expansive reading of Freedom of Movement within the Charter to include inter- and intra-municipal mobility would better match international recognition of the right.

To be sure, valid questions remain about the scope of this freedom. Does a full enactment of Freedom of Movement and Residence entail a positive right to live by the beach near downtown Vancouver? Probably not. But a Human Rights YIMBYism should press upon governments their obligation to work against exclusivity in choice of residence, whereby neighbourhoods and municipalities actively prevent equal access. Perhaps Vancouver’s OneCity party puts it best with their slogan: “Every Neighbourhood for Everyone.”

freedom of association

Within sociology and urban studies, people often refer to a Right to the City, linked explicitly (in a sprawling sort of way) to French sociologist and intellectual Henri Lefebvre. Unfortunately, the Right to the City is not well recognized (or even well explained by Lefebvre), but we do have Freedom of Association, which might be considered as accomplishing something similar. Freedom of Association is directly protected in section 20 of the Universal Declaration of Human Rights, as well as (indirectly) a number of other sections. Like Freedom of Movement, Freedom of Association also carries over into the Canadian Constitution via the Charter of Rights and Freedoms, s. 2(d). Mostly Freedom of Association has been interpreted (and fought over) as protecting things like rights to unionization. But as outlined by the Canadian Department of Justice, its purpose is far more encompassing.

Freedom of association is intended to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of their ends (Mounted Police Association of Ontario v. Canada, 2015 SCC 1 (“ MPAO”) at paragraph 54). It protects the collective action of individuals in pursuit of their common goals (Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 at 253). It functions to protect individuals against more powerful entities, thus empowering vulnerable groups and helping them work to right imbalances in society (MPAO, supra, at paragraph 58). It allows the achievement of individual potential through interpersonal relationships and collective action (Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 at paragraph 17).

As I read it, for many people Freedom of Association necessarily entails a Right to the City. This is especially the case for those who would otherwise be isolated in the pursuit of their ends, or in pursuit of common goals, as often occurs for minorities outside of cities. For instance, GLBTQ folk have been drawn to cities as the best places to gather and pursue their collective rights. By virtue of the density and diversity of people on offer, cities hold out the best prospect for realizing Freedom of Association across a broad range of interest and identities. Indeed, it is only in protecting access to density and diversity that the Freedom of Association within cities inevitability generates new interests and identities, and in turn protects the potential to translate these into collective action and the empowerment of vulnerable groups.

Where municipalities restrict the addition of housing, they also restrict this Freedom of Association. Taken together with the duty to prevent discrimination, codified within the BC Human Rights Code as targeting “race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age,” this suggests a Human Rights YIMBYism paying special attention to how cities work toward guaranteeing the Human Rights of a wide – and increasingly diverse – set of minorities. More specifically, a Human Rights YIMBYism should take care to support urban neighbourhoods that meaningfully offer minorities access to Freedom of Association in forms unavailable elsewhere. In other words, care should be taken to support majority-minority neighbourhoods (e.g. Chinatowns, Gaybourhoods, etc.) and other neighbourhoods of difference as a fundamental expression of supporting the Freedom of Association, especially as they tie back to “empowering vulnerable groups and helping them work to right imbalances in society.” Returning to a theme, this duty of care should be clearly situated within a balanced framework of support for other rights and freedoms.

Property RIGHTS

Finally we come to property! A Right to Property is laid out within the UN’s 1948 Declaration of Human Rights (article 17), and also makes an appearance in Canada’s 1960 Bill of Rights (Article 1a). But interestingly, neither the UN, nor the government of Canada have enshrined a specific right to property in more recent key documents, including the UN’s ICESCR Treaty (1976) and the Canadian Charter of Rights and Freedoms (1982). Indeed, there’s a whole Government of Canada explainer on the history of why a Right to Property failed to make its way into the Canadian Charter (mostly due to confederation and party politics). Of note, one argument forwarded by the Primer against enshrining property rights within the Charter is that they might “affect municipal zoning rules.” Regardless, as also explained by the Primer, Canada’s Property Rights are protected by its common law traditions, even if not specifically entrenched within its Constitution.

A Right to Property does not fully describe the content of Property Rights. The discussion of what is included in Property Rights in Canada is vast, and I won’t be able to take it on in its entirety here. But I want to lay out, in brief, the key argument that Property Rights extend from state delegation of sovereignty to owners (as per Cohen 1927). Initially, this delegation of sovereignty provided all manner of legal powers to real property owners (entitled as if they were literally landed lords), especially in terms of setting the future agenda for their properties and building upon them as they would, enabling them to build and lease out, say, big rooming houses. But powers to set the future agenda for properties were gradually rolled back – or re-delegated – to municipalities. This handy piece by Sarah Hamill (2015) lays out some further basic conceptions of Property Rights in light of their typical reception by courts in Canada now. In effect, property owners are now mostly granted rights to exclude others from their properties and to continue to use them as they have been primarily used (or be compensated for their loss). But property owners no longer get to determine different future uses, nor can they rely upon calculations based on potential future uses to argue for appropriate compensation when potential uses are changed (as established, once again, by a local BC court case involving the Railway, and detailed by UBC’s Douglas Harris 2012).

I find this stuff fascinating, and I’m only scratching the surface of it here. Property Rights are interesting for all sorts of additional reasons, including both how they’re often (correctly) treated skeptically by many working for broader social justice aims, and how they’ve also often been overlooked as a protective force (e.g. for minorities at risk of state mistreatment or those working toward the restoration of indigenous sovereignty). But overall, it’s clear that the Canadian interpretation of Property Rights remains limited relative to municipal regulations curtailing the addition of housing – especially zoning powers. While it’s possible this interpretation could change, and indeed this was raised as a potential objection to enshrining property rights within the Charter, so far Property Rights, by themselves, provide only limited grounding for YIMBY activism.

human rights typologies of yimby & nimby

I argue this sets up an interesting disjuncture, creating two streams of YIMBY activism: narrow Property YIMBYism and broader Human Rights YIMBYism. These can be contrasted with one another as well as with various streams of NIMBYism on the basis of the Human Rights framework discussed above.

Property YIMBYism might be best understood as pushing for a maximalist interpretation of Property Rights, stripping delegation of the right to build and set future agendas for properties away from municipal governance and returning delegation to property owners. This remains a real stream of broader YIMBYism, reflecting what’s also been called a “market urbanist” approach. But while markets may be understood as the means by which a restoration of more complete agenda-setting powers to owners will achieve YIMBY aims of adding more housing, it’s worth noting that Property YIMBYism doesn’t by itself require market distribution. Indeed, Property YIMBYism, all by itself, could benefit property owners looking to build social housing as well as property owners looking to build market rentals or construct condos (subdividing and selling off ownership claims). Still, Property YIMBYism runs the risk of entrenching Rights to and in Property at the cost of broader Human Rights. Such entrenchment could ultimately work against the construction of more housing and the broader Right to Housing as well as other fundamental human rights, for instance to the extent local property owners attempted to benefit from monopolizing access to land and excluding others from it.

Human Rights YIMBYism embraces a the broad constellation of rights described above. As such, it advocates for Property Rights to be reconfigured vis-a-vis municipalities primarily in support of the related Right to Housing, Freedom of Movement, and Freedom of Assembly. Where Property Rights interfere with the Right to Housing, as with protections against evictions, tenant protections like rent control, and rights to non-discrimination, different Human Rights YIMBYs will take differing positions, but all will recognize the need to either defer to the Right to Housing or seek a reasonable balance, rather than seeking to maximize Property Rights. Similarly Property Rights should not enable owners to prevent Freedom of Movement and Freedom of Association in ways that might replicate the effects of housing shortages currently enforced by municipal agenda-setting. For that matter, a Human Rights YIMBYism need not be hostile to delegating agenda-setting powers for properties to municipal governance. But to legitimately exercise these powers, a Human Rights YIMBYism pushes municipal governments to recognize, internalize, and work to further key rights and freedoms. In particular, municipalities must incorporate commitments to a Right to Housing, Freedom of Movement, and Freedom of Association within their planning and legal structures, insuring enough housing is built to welcome those who wish to join.

NIMBYisms will persist. But a clear commitment to a broad set of Human Rights offers clarification for debates with NIMBY activists. Which key human rights and freedoms would they dispense with, and by what rationale? For those content with their current residence, Freedom of Movement seems dispensable, as it has also often been deemed expendable by certain Marxist inspired theorists and governments. Others remain happy to toss Freedom of Association to the extent it evokes tall towers or smacks of urbanism and hipster innovation. Still others focus only on the protections against displacement required by a Right to Housing without also recognizing what’s required in order to enact the freedom to choose one’s residence when moving. Generally speaking, when shifted to the context of human rights, many NIMBY objections fail to persuade. And rights arguments necessarily carry weight with governments. How do municipal obligations toward aesthetic character weigh against their obligations to support – or at least not actively oppress – human rights and freedoms? How do provinces insure their creatures are respecting constitutional law?

As I’ve argued in the past, it appears that most YIMBY identified folks are Human Rights YIMBYs. We see this, for instance, in the wide support more Inclusive Urbanist parties and platforms receive relative to narrower “Market Urbanist” Property YIMBYs (see my analysis of Vancouver’s 2018 election here), as well as the success of justice-oriented YIMBY alliances across the USA. Human Rights YIMBYs also have more tools at their disposal in being able to speak to more than (often abstract) economic reasoning in support of their positions.

Returning to provincial, state, and federal governments, a Human Rights YIMBYism should press here to affirm that these have both a positive duty to provide housing (Right to Housing) for those otherwise unable to secure it in places they want to live (Freedom of Movement ; Freedom of Association) and – at minimum – a negative duty to prevent their municipal creatures from undue interference with those exercising their Property Rights in ways to further Rights to Housing, Freedom of Movement, and Freedom of Association for others.

Finally, its worth circling back to the simple point that Human Rights YIMBYism offers perhaps the most firm grounding for forging enduring alliances. Housing politics are notoriously fractious (and don’t get me started on housing twitter). It’s valuable to start with agreement on common principles like basic Human Rights. It makes it easier to work through and set aside strategic differences and legitimate disagreements over how competing rights should be balanced without burning bridges. In short, Human Rights YIMBYism offers the kind of sturdy foundation you need to build a lot of new homes.

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