A/HRC/40/61 International Covenant on Economic, Social and Cultural Rights: to take steps “to the maximum of its available resources, with a view to achieving progressively the full realization of the [right to housing] by all appropriate means, including particularly the adoption of legislative measures”. 24. The adoption of the Optional Protocol resolved two critical issues that were debated during the drafting process. The adopted text established that claims submitted by individuals who have been affected by States’ failures to progressively realize Covenant rights are justiciable.23 And it also established that while there may be a range of policies or approaches through which States may comply with article 2 (1), the means chosen must comply with a standard of “reasonableness”. 24 25. The Committee on Economic, Social and Cultural Rights has identified a number of factors to consider in assessing reasonableness. Measures must be deliberate, concrete and targeted towards the fulfilment of the right; implemented within a reasonable time frame; allocate resources in accordance with international human rights standards; address the precarious situation of disadvantaged and marginalized individuals or groups; and ensure that decision-making is transparent and participatory. 25 26. The assessment of reasonableness relies on hearing from rights holders. It is a contextual analysis that takes as its starting point the dignity interests brought to light through access to justice. The text of article 8 (4) of the Optional Protocol drew directly from the decision of the Constitutional Court of South Africa in the Grootboom case, in which the reasonableness of housing policies was assessed in the context of the circumstances of Irene Grootboom and others living with their children under plastic sheets on a sports field, without water or sanitation. The Court emphasized that progressive realization is not simply about statistical progress. Adequate housing is recognized as a fundamental human right “because we value human beings … [E]veryone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.” 26 27. The standard for access to justice for the right to housing under international law, therefore, requires an assessment of measures taken to realize the right to housing, in the context of both the capacity of the State and of lived realities brought forward through the claiming of rights. It is a standard that accords flexibility as to the precise policy measures chosen but is firmly grounded in the obligation to fully realize the right to housing in the shortest possible time. Sandra Liebenberg explains that applying the reasonableness standard does not mean simply deferring to Government to make policy choices, but rather provides a critical space for rights claimants to participate in designing and implementing strategies and programmes. 27 28. Access to justice must also be ensured when States reduce the enjoyment of the right to housing through retrogressive measures. 28 Courts and other adjudicative bodies must require the State to prove that any such measures are fully justified on the basis of very strict criteria, and taking into account the maximum available resources and any alternatives available. Measures must be necessary and proportionate, remain in place only insofar as they are necessary, not result in discrimination and ensure that the rights of disadvantaged and marginalized individuals and groups are not disproportionately affected, and that the 23 24 25 26 27 28 8 Catarina de Albuquerque and Malcolm Langford, “The origins of the Optional Protocol” in The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary, Malcom Langford and others, eds. (Cape Town, Pretoria University Law Press, 2016). Article 8 (4) of the Optional Protocol. General comment No. 3 (1990) on the nature of States parties’ obligations, para. 2. Government of the Republic of South Africa and Others v. Grootboom and Others, para. 44. Sandra Liebenberg, “Participatory justice in social rights adjudication”, Human Rights Law Review, vol. 18, Issue 4 (December 2018), pp. 623–649. See Aoife Nolan, Nicholas J. Lusiani and Christian Courtis, “Two steps forward, no steps back? Evolving criteria on the prohibition of retrogression in economic and social rights”, in Economic and Social Rights After the Global Financial Crisis, Aoife Nolan, ed. (Cambridge University Press, 2014), pp. 128–129.