"…An equally basic essential to peace is a decent standard of living for all individual men and women and children in all nations. Freedom from fear is eternally linked with freedom from want….We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. Necessitous men are not freemen. People who are hungry and out of a job are the stuff of which dictatorships are made. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all -regardless of station, race, or creed. Among these are…the right of every family to a decent home".
– Franklin D. Roosevelt
- "Rich man took my home
- and drove me from my door
and I ain’t got no home
- in this world anymore…."
"In no economically advanced country–a sadly neglected matter–does the market system build houses the poor can afford".
– J.K. Galbraith
Contrary to what several governments actively involved in the Habitat II process would like people to believe, there is absolutely nothing new, innovative or radical about the term ‘the human right to adequate housing’. Some argue that Habitat II is not the proper forum for creating "new" human rights, such as the right to adequate housing — as if such a right did not exist and would only come into existence if recognized in Istanbul.
While numerous legal arguments could be put forward rejecting these anti-housing rights sentiments, it is useful at the outset to cite one of many recent pronouncements to the opposite effect. An Expert Group Meeting on the Human Right to Adequate Housing held from 18-18 January 1996 at the UN Offices in Geneva and co-organized by the UN Centre for Human Rights and the UN Centre on Human Settlements (Habitat) concluded that:
…a right to housing expressed in one formulation or another has been recognized, in addition to the International Covenant on Economic, Social and Cultural Rights (1966), in each of the following instruments: the Universal Declaration of Human Rights (1948, article 25); the International Convention on the Elimination of All Forms of Racial Discrimination (article 5(e)(iii)); the International Convention on the Elimination of All Forms of Discrimination Against Women (1979, article 14(2)(h)); the Convention on the Rights of the Child (1989, article 27(e); and the Convention Relating to the Status of Refugees (1951, article 21). (para. 3, Report of the Expert Group Meeting) 1
The International Covenant on Economic, Social and Cultural Rights (1966), which has now been ratified by 133 countries, provides perhaps the most significant international legal source of the right to adequate housing in article 11(1):
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. [emphasis added] 2
Neglecting to reaffirm this and other central housing rights provisions within the context of Habitat II will do little to strengthen faith in the seriousness with which governments or the United Nations take basic matters of human rights. The refusal by certain governments to accept and strengthen housing rights standards belittles and degrades the contents of a dynamic legal system these very same governments have long and arduously helped to build. Moreover, this retrograde approach effectively treats legal standards as if such norms were merely weak and pliable policy statements to be vanquished in accordance with prevailing economic winds. This is certainly not what human rights law, and the inherent dignity of the human person this legal regime is devoted to protecting, is all about.
To live in a place, and to have established one’s own personal or collective habitat with peace, security and dignity should neither be considered a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the imperative of adequate housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the community of nations to recognize adequate housing as a basic human right. And thus it remains an oddity that all references to this right in the draft Habitat Agenda are currently surrounded by brackets; an indication that at least as far as this document is concerned, some important decisions will be made during Habitat II on the human right to adequate housing.
The recognition and promotion of the human right to adequate housing by the United Nations effectively began immediately following the creation of the organization itself, during the drafting of the Universal Declaration on Human Rights. Since the adoption of the sacrosanct Universal Declaration in 1948, the human right to adequate housing has been subsequently reaffirmed and strengthened, with the United Nations placing considerably expanding attention to various measures designed to promote and protect these rights in recent years. In recognition of the indispensable importance of adequate housing for individuals to live a full life and to enjoy and benefit from all human rights, this right now finds legal substance within many international and national legal texts.
In addition to these, numerous resolutions recognizing and reaffirming the right to adequate housing have been adopted by the General Assembly (1986, 1987), the Economic and Social Council (1987), the Commission on Human Rights (1986,1987, 1988, 1993), the UN Commission on Human Settlements (1993, 1995) and the Sub-Commission on Prevention of Discrimination and Protection of Minorities (1990-1995), each of which have given added weight to the primacy of housing rights. 3
The right to adequate housing has also been extensively recognized in the framework of a wide range of international statements of law and policy in related fields, as distinct from human rights law and mechanisms. For instance, housing rights provisions are contained in Agenda 21 (1992), the UN Vancouver Declaration on Human Settlements (1976), the UN Global Strategy for Shelter to the Year 2000 (1988) and other texts.4
The UN Centre for Human Rights and the UN High Commissioner for Human Rights (Mr. JosŽ Ayala Lasso) have placed expanding attention on the promotion of the human right to adequate housing. 5 The UN Centre on Human Settlements (Habitat), and coordinating body of Habitat II, has recently initiated activities toward a Housing Rights Strategy, which could potentially yield enhanced international action on this right. 6
Within the human rights policy-making organs, a UN Special Rapporteur on Promoting the Right to Adequate Housing was appointed in 1993 to undertake a three year study on developing practical measures toward the realization of this human right. In pursuit of his mandate, the Special Rapporteur, Mr. Rajindar Sachar, prepared four detailed reports and concluded his work in August 1995. 7
Progress on housing rights continues, as well, at regional and national legislative levels. For instance, within the last month a right to housing has been formally established in article 31 of the revised European Social Charter and article 25 of the new South African Constitution. 8 Housing rights are clearly not an issue of the past as these recent examples show.
These norms and other activities revolving around housing rights have assisted in giving housing rights a prominent place within the global human rights agenda over the past decade. At the same time, however, these immense strides, while generating much attention and translucence, have certainly yet to transform governmental approaches towards solving the global housing crisis. An understanding of the actual legal nature of housing rights remains lacking, with much of the acrimonious debate built on a range of common misperceptions about this right.
2. Common Questions and Misperceptions About Housing Rights
The very existence of housing rights as human rights has been subject of controversy and dispute during the past year. This unfortunate effort hinges on several key arguments:
- The right to an adequate standard of living, including food, clothing and housing does exist under international law, however no ‘right to adequate housing’ exists as an independent right;
- There is nothing in domestic law which in any way guarantees an individual right to adequate housing. Therefore, no support should be given to international activities leading to the creation of "new human rights" such as housing rights;
- To include housing rights within the international system of human rights, would "weaken and dilute all human rights";
- Decent housing has always been a goal of policy makers, however, it is notand cannot be a human right; and
- Housing rights are inconsistent with the UN Global Strategy for Shelter to the Year 2000 (GSS).
These five points form the basis of the current United States-led campaign on the non-existence of the right to adequate housing. 9 Needless to say, these arguments are severely at odds with the prevailing situation regarding housing rights under long-established and consensus-built international legal and human rights standards.
Ideological or economic considerations aside, a partial explanation for such views may relate to issues of definition and terminology. Indeed, the terms of common parlance are as diverse as: housing rights; the right to adequate housing; the human right to adequate housing; the right to housing, the right to the city; livelihood rights and so forth. A phrase such as ‘the right to adequate housing’ could invoke connotations of the direct governmental provision of a house to all citizens invoking this right, or be taken at the most superficial level to imply that it is the State and only the State which bears any responsibility for securing adequate housing for a given population. From a semantic point of view, it is perhaps understandable that such perceptions have emerged.
A deeper knowledge of State practice, the contents of national and international legislation relating to housing and human rights, the current nature of housing and housing rights jurisprudence at all levels, activities by United Nations and other human rights bodies, the inherent housing-related elements possessed by other human rights norms and many other considerations reveal, however, much more complex and refined views concerning the existence, contents and obligations arising pursuant to the right to adequate housing.
Because the right to adequate housing encompasses a much broader range of concerns than simply the direct provision of a dwelling to the homeless by the State, or reductionist notions of housing constituting exclusively ‘four walls and a roof’, this right must be understood holistically as constituting both an independent right and a composite right comprising all relevant human rights matters linked in any way to the existence, protection and security of the home. For instance, constituent rights such as those to privacy, to non-discrimination, to equality of treatment, to personal security, to family life, to freedom of movement and to choose one’s residence must be incorporated into any analysis striving to provide clarity about the right to adequate housing. The enjoyment or denial of each of these permeable rights will have a significant bearing upon the enjoyment or denial of housing rights.
An accurate view of housing rights must also recognize not only the physical manifestations of a structure called ‘the home’, but must equally embrace the procedural, non-material aspects of housing rights which, in many respects, may be ultimately more fundamental than purely the issue of housing supply or availability. Some of the currently misguided notions about housing as a human right stem from limited perceptions of the term ‘housing’ itself. Thus it is not difficult to see that a literal interpretation of the phrase ‘a right to adequate housing’, in the absence of a more balanced comprehension of the true nature of housing, might lead to incorrect visions as to the actual contents of housing rights.
With a view to overcoming the misconceptions which lie behind arguments refuting the recognition of the human right to adequate housing, it may be useful to cursorily examine and rebut some of the central arguments against housing rights that have been put forth since April 1995, and in the process aim to answer at least some of the most frequent questions asked about these rights.
Housing Rights Are Too Vague To Be Defined
It is often argued that because of the extreme diversity of housing conditions, housing policies and laws, national wealth and other factors between and within nations, that housing rights cannot be defined in a universally relevant manner and thus cannot be universally recognized human rights. The final report of the UN Special Rapporteur on Housing Rights provides guidance into how the right to adequate housing should be approached by firmly stating that this right should not be taken to imply:
That the State is required to build housing for the entire population;
That housing is to be provided free of charge by the State to all who request it;
That the State must necessarily fulfill all aspects of this right immediately upon assuming duties to do so;
That the State should exclusively entrust either itself or the unregulated market to ensuring this right to all; or
That this right will manifest itself in precisely the same manner in all circumstances and locations.10
Conversely, in determining the legal implications of the right to adequate housing, the Special Rapporteur has noted that a recognition of this right must be seen and interpreted, in the most general sense, to imply:
- That once such obligations have been formally accepted, the State will endeavour by all appropriate means possible to ensure everyone has access to housing resources adequate for health, well-being and security, consistent with other human rights;
- That a claim or demand can be made upon society for the provision of or access to housing resources should a person be homeless, inadequately housed or generally incapable of acquiring the bundle of entitlements implicitly linked with housing rights; and
- That the State, directly upon assuming legal obligations, will undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspect of the right in question. 11
In 1991, the UN Committee on Economic, Social and Cultural Rights adopted ‘General Comment No. 4 on the Right to Adequate Housing’, which provides perhaps the most authoritative legal interpretation of the right to adequate housing under international law to date. 12 Far from simply equating this right with the duty of the State to provide a house to any citizen asking for one on demand, General Comment No. 4 indicates that the following seven components form the core contents of the human right to adequate housing: (a) legal security of tenure; (b) availability of services, materials, facilities and infrastructure; (c) location; (d) habitability; (e) affordability; (f) accessibility; and (g) cultural adequacy. 13 Each of these have been elaborated within General Comment No. 4. According to the Committee, the right to housing should not be interpreted in a narrow or restrictive sense which equates it with the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather the norm should be seen as the right to live somewhere in security, peace and dignity.14
In addition to such interpretive efforts, the Committee has, on occasion, declared States parties to the Covenant to have infringed the housing rights provisions of this treaty, due in particular to State support or tolerance of the practice of mass forced evictions.15 Moreover, this body now issues specific recommendations to States parties on legislative and other steps to be taken by States parties to ensure the full compliance with the housing rights norms of the Covenant and ensure the realization of these rights for the citizens to whom the State has a duty to respect, protect and fulfil.
Were the right to adequate housing not a distinct human right (fully capable of defining), it is hardly likely that it would be recognized using this terminology in a significant number of National Constitutions, that UN human rights bodies would have adopted such a substantial number of general comments, resolutions and other texts using the term ‘right to adequate housing’ or that civil society throughout the world would be basing housing claims on their legally recognized human rights.
Are States Obliged to Build Homes for Everyone?
Certain commentators have equated ‘the human right to adequate housing’ with the immediate duty of governments to substantively provide a house to anyone who requests it to do so. This literal translation of the term, however, reflects neither general State practice nor the interpretation given this right under international law. General Comment No. 4 attests:
"While the most appropriate means for achieving the full realization of the right to adequate housing will inevitably vary from one State party to another, the Covenant clearly requires that each State party take whatever steps are necessary for that purpose".(para.12)
"Measures designed to satisfy a State party’s obligations in respect of the right to adequate housing may reflect whatever mix of public and private sector measures considered appropriate. While in some States public financing of housing might most usefully be spent on direct construction of new housing, in most cases, experience has shown the inability of Governments to fully satisfy housing deficits with publically built housing".(para.14)
No State has ever or could ever hope to construct adequate housing for 100% of the population. Advocating such approaches verge on the absurd. No government, no United Nations institution, and no non-governmental organizations are advocating this approach to implementing housing rights. A much more nuanced perspective is required whereby a collective effort by all relevant actors leads as rapidly as possible to the enjoyment by all persons of an adequate home as a right. The UN Expert Group Meeting on the Human Right to Adequate Housing, held in January 1996, declared:
"Among the core areas of the State role in realizing the human right to adequate housing are provision of security of tenure, prevention (reduction) of discrimination in the housing sphere, prevention of illegal and mass evictions, elimination of homelessness and promotion of participatory processes for individuals and families in need of housing. In specific cases, the State may have to provide direct assistance, including provision of housing units, to people affected by disasters (natural and man-made) and to the most vulnerable groups in society".[emphasis added] 16
Thus, while it is generally not the case that the State is obliged to construct housing for everyone who requests it on demand, there are laws and jurisprudence in several States indicating that under certain circumstances, the State is legally required to provide particular persons or groups of persons with adequate housing in an expedient manner. To argue, therefore, that housing rights obligations never signify the substantive provision of a home by the State to those in particular need does not entirely correspond to practical realities.
Legislation in Finland, for instance, makes it mandatory for local government authorities to provide housing resources for the severely handicapped under certain circumstances (Art. 8(2) of Act No. 380/1987). Further laws, including the Child Welfare Act (No. 683/1983), require that local government must rectify inadequate housing conditions or, as the case may be, provide for housing when inadequate or nonexistent housing causes the need for special child welfare or constitutes a substantial hindrance to the rehabilitation of the child or the family. 17
In Sweden ‘the right to a home’ which is modern, peaceful, well maintained and easily accessible is contained in a ten year plan for housing renovation.18 The German government has stated unequivocally that "[I]n the case of homelessness, Article 1(1), in association with Articles 20(1) and 28(1) of the Basic Law on the principle of a social state based on the rule of law, gives rise to the homeless person’s subjective right to be allocated accommodation enabling him to lead a dignified existence. Furthermore, the said principle obligates the state to take into account the creation of sufficient living space when shaping the economic order and making provisions for the general good". 19 It has also been asserted that jurisprudential considerations can be construed to reveal a right to housing, although an independent right to housing is not established pursuant to the German Basic Law. 20
In the United Kingdom, the 1985 Housing Act legally requires local city councils to provide adequate accommodation to homeless families and persons in priority need. Section 63 of this law provides that "if the local housing authority have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries….". 21 A French law of 1990 asserts in article 1 that "the guarantee of a right to housing constitutes a duty of solidarity for the nation as a whole. Any person or family finding difficulties because of the inability of his resources to meet his needs has the right to collective assistance under conditions fixed by law that will ensure access to decent and independent housing where he can maintain himself". 22
Many other examples could be also be given, including some from the developing world, but the important point here is that the primary duty of the States holding relevant legal obligations is to create conditions (legislative, administrative, regulatory, economic, social, policy and so forth) such that all residents may benefit from and enjoy in full the entitlements connected with the right to housing, within the shortest possible time-frame.
The construction of homes for an entire national population by the State is neither the intent nor obligation of States recognizing the right to housing. It must be emphasized, however, that certain governments have accepted such obligations under specific circumstances.
Aren’t Housing Rights Only a Part of the Larger Right to an Adequate Standard of Living?
Another common argument made against the right to housing contends that while adequate housing may well constitute a basic human need, it falls far short from comprising a basic, independent human right. The artificiality of this distinction is most notably evident when examining the provisions found throughout international human rights law and relevant global agreements on housing and human settlements. The Universal Declaration on Human Rights and the International Covenant on Economic, Social and Cultural Rights each recognize housing rights as a distinct right, forming part of a larger right to an adequate standard of living. These formulations of housing rights have led some observers to assert that housing rights are only a part of the right to an adequate standard of living and thus do not exist as distinct norms in their own right. Such points of view, however, miss the mark.
To take one of dozens of examples, UNGA resolution 42/146 (1987) entitled ‘The Realization of the Right to Adequate Housing’ calls upon "all States and international organizations concerned to pay special attention to the realization of the right to adequate housing in carrying out measures to develop national shelter strategies and settlement improvement programmes within the framework of the Global Strategy for Shelter to the Year 2000".(emphasis added)
As far as the housing rights norms under the Covenant on Economic, Social and Cultural Rights are concerned none of the 133 States Parties to this treaty have issued reservations on the housing rights norms in article 11(1), nor have reservations been put forth under any of the other global human rights treaties recognizing housing rights to the detriment of these rights. Equally, no State Party to the Covenant has ever suggested that housing rights did not exist under this treaty, and most States have included detailed analyses of the position of this right within their countries in the States reports they submit to the UN every five years outlining the legislative and other measures taken to fulfil the rights established under the Covenant. No State party has ever refused to answer the 60 or so housing rights questions contained in the Committee on Economic, Social and Cultural Rights ‘guidelines for States reports’, nor denied the existence of housing rights. The contents of General Comment No. 4 have also never been refuted by States parties.
The many countries with constitutional or statutory housing rights provisions have not, of course, sought to oppose the existence of the right to adequate housing as an independent human right. It is indeed odd to oppose housing rights on the grounds that human rights law recognizes only a right to an adequate standard of living. For how could this larger right exist in the absence of housing rights? An adequate standard of living must, obviously, include enjoyment of housing-related guarantees. A homeless person with access to adequate food and adequate clothing could certainly not be considered to be enjoying a fully realized right to an adequate standard of living.
National Laws Do Not Recognize Housing Rights, So How Can International Law?
Perhaps one of the least convincing arguments opposing housing rights alleges that national laws do not recognize these rights, and therefore, neither can international law. Constitutional clauses from a cross-section of countries, however, provide an indication that national laws can and often do recognize and enshrine housing rights:
- Everyone has the right to enjoy a life in conformity with human dignity….These rights include, in particular, the right to adequate housing.(art. 23(3), Belgium)
All Hondurans have the right to decent housing. The State shall design and implement housing programmes of social interest. (art. 178, Honduras)
Every family has the right to enjoy decent and proper housing. The law shall establish the instruments and necessary supports to reach the said goal.(art. 4, Mexico)
Nicaraguans have the right to decent, comfortable and safe housing that guarantees familial privacy. The State shall promote the fulfillment of this right.(art. 64, Nicaragua)
Everyone shall have the right for himself and his family to a dwelling of adequate size satisfying standards of hygiene and comfort and preserving personal and family privacy.(art. 65(1), Portugal)
Each person has the right to housing. No one may be arbitrarily deprived of housing.(art. 40(1), Russia)
Everyone has the right to have access to adequate housing. The state must take reasonable progressive legislative and other measures to secure this right.(art. 26(1), South Africa)
The State shall by law, and for the common good, undertake, in co-operation with the private sector, a continuing programme of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas.(art. 13(9), Philippines)
All Spaniards have the right to enjoy decent and adequate housing.(art. 47, Spain)
Many other national Constitutions distinctly recognize the right to housing and/or the various obligations of the State within the housing sphere. In addition to those just mentioned, Ecuador, Guyana, Haiti, Iran, Lithuania, Mali, Panama, Paraguay, Peru, Sao Tome and Principe, Seychelles and Uruguay enshrine housing rights in national constitutions. Other constitutions suggest the general responsibility of the State, often phrased in terms of policy considerations, to ensure adequate housing and living conditions for all, in an environment of equality, based on the rule of law. Such formulations are found with respect to Bangladesh, Bolivia, Brazil, Burkina Faso, Colombia, Costa Rica, Dominican Republic, El Salvador, Finland, Guatemala, Korea (Rep. of), Nepal, Netherlands, Nigeria, Pakistan, Philippines, Poland, Romania, Sri Lanka, Sweden, Switzerland, Turkey, Venezuela, Viet Nam and others. 23
It should also be recognized that even though the phrase ‘human right to adequate housing’ may not be found within national legislation, a synthesis of national laws and judicial decisions may in fact provide ample protection of citizen rights in this respect. Indeed, the following types of legislation may have a direct bearing upon the enjoyment of housing rights at the national level: (a) housing acts; (b) rent and rent restriction legislation; (c) specific housing rights legislation, including homeless person acts; (d) landlord-tenant law; (e) urban reform laws; (f) security of tenure legislation; (g) civil & criminal codes; (h) land use, zoning and agrarian laws; (i) planning laws and regulations; (j) building codes and standards; (k) laws relating to inheritance rights for women; (l) land acquisition and expropriation acts; (m) non-discrimination; (n) equality rights; (o) eviction laws; (p) development laws; and (q) environmental standards.
Although often forgotten, every nation has developed what can be deemed ‘housing rights jurisprudence’; a collection of relevant laws and judicial and other decisions which can be viewed comprehensively as the legal state of housing rights within a given jurisdiction. In recognition of this point, the guidelines for States reports under article 11(1) of the Covenant on Economic, Social and Cultural Rights ask States Parties to provide specific information on eleven separate areas of legislation, each of which have a direct bearing upon the enjoyment of housing rights within these States. 24 The contents of these guidelines are indicative of what the Committee has called the "indispensable role" of national legislative activities in pursuit of the right to housing.
Are States Which Have International Legal Obligations on Housing Rights Required to Adopt ational Legislation?
Human rights law affords States some degree of discretion as far as the adoption of national legislation as a means of implementing international standards is concerned. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, a widely recognized tool for the interpretation of the Covenant, provide useful guidance as to whether national legislation is actually an obligation under the Covenant. 25 Limburg Principle 17 proclaims that article 2(1) of the Covenant requires States at the national level to use all appropriate means, including legislative, administrative, judicial, economic, social and educational measures, consistent with the nature of the rights in order to fulfill their obligations under the Covenant.
Governments are also obliged, under the Covenant, to take "whatever steps are necessary" for the purposes of the full realization of the right to adequate housing, including, but not only, the undertaking of legislative measures. General Comment No. 4 on the Right to Adequate Housing reiterates that "the role of legislative and administrative measures should not be underestimated". Therefore, although States might not be ipso facto obliged in all cases to adopt domestic legislation giving full effect to international legal obligations (as long as all other necessary steps are taken), an analysis of State practice and international legal perspectives on this issue suggest the necessity of a more subtle approach. There are certainly cases where the adoption of national legislation would be required under international human rights law. For example, in circumstances where existing laws are manifestly inconsistent with international human rights texts including housing rights, legislation must be enacted to repeal such legislation or to create new legal rules. The Final Report of the Special Rapporteur on Housing Rights addresses this issue in several of his recommendations, suggesting that "States should seek to fully integrate the contents of General Comment No. 4 on the right to adequate housing (art. 11(1) of the Covenant on Economic, Social and Cultural Rights) into relevant national legislative and policy domains". The Special Rapporteur also recommended to States to "duly alter any domestic laws clearly incompatible with the housing rights provisions of the Covenant, and should take it fully into account in adopting any new legislation". 26
The UN Secretary General, too, has noted that there is a compelling need to create new legislation and effective mechanisms geared to the prevention of forced evictions at national, regional and international levels, with a view to enforcing the implementation mechanisms of the right to adequate housing. 27 There are clearly advantages of pursuing housing issues through the process of housing rights and subsequently codifying this right within domestic legislation. The relative permanency of legislation as contrasted with policy decisions provides a valuable assurance that acceptance of housing as a human right will not be subject to the whims of differing political administrations. Enshrining housing rights standards in national legal frameworks may be the only manner of ensuring equitable access to adequate housing resources by disadvantaged groups and protecting the rights of economically marginalized populations.
The incorporation of housing rights provisions in law encourages governmental accountability to citizens and provides tangible substance to what are often in practice vague international commitments by a particular State. Housing rights legislation can be important incentives to ensuring equality of treatment throughout given societies, which in turn transcend purely moral or ethical claims to adequate housing by all people. It is on this basis that the Committee on Economic, Social and Cultural Rights has emphasized that "policies and legislation should not be designed to benefit already advantaged social groups at the expense of others". 28
Is the Adoption of National Legislation Sufficient for States to Comply with Their Legal Obligations?
The scale of housing deprivation and housing-related human rights violations throughout all corners of the world must clearly raise doubts as to the sufficiency or effectiveness of legislative strategies towards ensuring the enjoyment of the right to adequate housing by all sectors in any society. It is sometimes claimed that policy-based or socially-strategic approaches to the global housing crisis can allow more effective solutions to emerge, thereby implying that the pursuit of appropriate legal arrangements to secure the full enjoyment of housing rights will be invariably futile; at best protecting those with adequate housing, and doing desperately little for those without adequate housing. Such distinctions, however, obscure the positive role which can, under the right circumstances, be played by law in this area.
That legislative measures alone are not sufficient to fulfill all of the obligations arising from the Covenant is clear. The Limburg Principles reinforce this point unequivocally, adding that "article 2(1) would often require legislative action to be taken in cases where existing legislation is in violation of the obligations assumed under the Covenant" (Prin. 18). The existence of housing rights laws should neither be viewed as necessarily sufficient to ensuring compliance with international housing rights obligations, nor as evidence that a particular State has no obligations regarding relevant legislation whatsoever. Rather, such laws reveal that while much has already been accomplished at the national level, far more work will be required if internationally recognized housing rights norms are to be fully implemented and enforced at the national and local levels. It is important to recall that international customary law (eg. law binding on all States) clearly provides that governments cannot rely on domestic laws as a justification for failing to fulfil international obligations.
Housing Rights Cannot Be Violated in the Same Way as Other Human Rights
While the world’s media and governments may not react with the same horror as they do when violations of human rights resulting in the loss of life or horrible human deprivation occur housing rights can and are violated in much the same way as other human rights, with which these rights are indivisible and interdependent. Perhaps the most obvious active violation of the right to housing is the very widespread and often ruthless practice of forced evictions. 29
This practice has been repeatedly condemned as a violation of housing rights and in some instances, as a gross violation of human rights. Among many others, the United Nations Commission on Human Rights has asserted, for instance, in resolution 1993/77: "that the practice of forced evictions constitutes a gross violation of human rights, in particular the right to adequate housing". Such equations are by no means purely rhetorical. Since 1990 the UN’s Committee on Economic, Social and Cultural Rights has declared several countries as explicit violators of the housing rights provisions under the Covenant, including the Dominican Republic, Panama, the Philippines and others.
Housing rights violations, of course, are not isolated to forced evictions. For example, a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would violate internationally recognized housing rights standards. 30 Similarly, acts of racial or other forms of discrimination in the housing sphere, demolition or destruction of housing as a form of punishment, failing to reform or repeal legislation inconsistent with the contents of housing rights and a range of additional actions have been declared in principle, to constitute further violations of the right to adequate housing. 31
Housing Rights Are Not Justiciable
Housing rights opponents have also argued that housing rights are not justiciable; meaning that these rights cannot be subject to judicial scrutiny or consideration and, therefore, cannot be enforced. Claiming that housing rights are not justiciable, therefore, seeks to preclude the legal dimensions of these rights and to alter them into purely policy issues. Whether examined from a practical or theoretical angle, however, such views do not correspond with actuality. Not only are housing rights cases heard every day in the court rooms of the world, but an ‘international housing rights jurisprudence’ has emerged and been identified during the past decade–a compilation of relevant judicial and other decisions at all levels, which in one way or another, impinge upon the human rights dimensions of the home and housing. 32 While it may not be possible in many jurisdictions to successfully submit complaints requesting the substantive provision of a home, numerous other core elements of housing rights are fully cable of judicial consideration.
The UN Committee on Economic, Social and Cultural Rights "views many component elements of the right to adequate housing as being at least consistent with the provision of domestic legal remedies. Depending on the legal system, such areas might include, but are not limited to:
legal appeals aimed at preventing planned evictions or demolitions through the
issuance of court-ordered injunctions;
legal procedures seeking compensation following an illegal eviction;
complaints against illegal actions carried out or supported by landlords (whether
public or private) in relation to rent levels, dwelling maintenance, and racial or other
forms of discrimination;
allegations of any form of discrimination in the allocation and availability of access to
complaints against landlords concerning unhealthy or inadequate housing
conditions. In some legal systems, it would also be appropriate to explore the
possibility of facilitating class action suits in situations involving significantly increased
levels of homelessness". 33
At the European level, the new European Social Charter and its procedure for collective complaints clearly envisages complaints concerning, among others, article 31 (housing rights), whereas both the European Commission and Court on Human Rights and Fundamental Freedoms have issued numerous decisions on cases linked to housing matters.
Housing Rights Are Unaffordable
While solutions to the housing rights problem spearheaded by governments form only part of any overall solution, there can be no denying the fact that the public sector spends comparatively little in the housing sphere. According to the UN Special Rapporteur on Housing Rights: "It is important to bear in mind that according to UNCHS (Habitat), about US$ 75 billion are required to meet the needs in housing". 34 In terms of the global economy, this in not a great deal of money. Sachar reminds us that on the whole housing expenditure by governments of the developing world amounted to an average of 3.32 per cent in 1990, whereas by the same measurement health expenditures amounted to 6.42 per cent, with education allocations constituting nearly 15 per cent of public spending.
Securing housing rights for the most disadvantaged sectors of society will cost the State money. However, if public funds are spent wisely, efficiently and targeted to areas where deprivation is most severe, investments of this sort can achieve a great deal. Such spending need not bankrupt delicate economies. International law does not indicate that a particular sum or portion of public spending should be devoted to housing, but it does oblige governments to devote the ‘maximum of available resources’ towards securing economic, social and cultural rights, including housing rights. Clearly, few States have satisfied such duties.
Many of the core contents of housing rights are effectively cost-free and require few positive interventions by governments, other than a commitment to implementing human rights duties and the necessary political will. Examining housing rights obligations from the perspective of duties to respect, protect, promote and fulfil these rights, reveals that the majority of such legal requirements do not oblige States to devote substantial financial resources towards securing these rights in order to fulfil their legal obligations. The provision of security of tenure and land title, measures of land reform, revision of national legislation, instituting systems of tax credits, enforcing non-discrimination provisions, supporting appropriate incentives to the private sector, allowing community-based and non-governmental organizations to operate and organize freely and so forth will not stifle economic progress.
Above all, effective structures must be established combining positive State involvement within the housing sphere with patterns of policy, legislation and programmes fully consistent with housing rights obligations whereby funds are allocated consistent with housing demand. Even when ‘available resources’ are verifiably inadequate within countries, international law requires governments to ensure the widest possible enjoyment of the relevant rights under prevailing circumstances, and to demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, these minimum responsibilities. 35 Under the Covenant, all States possess a minimum core obligation to ensure the satisfaction of essential levels of each of the rights found in this decisive legal text.
States which have housing rights obligations must move as expeditiously and effectively as possible towards the goal of realizing fully the right to housing. As an obligation, this exists independently of any increase in available resources. Any deliberately retrogressive measures affecting housing or other rights can only be justified by reference to the totality of the rights provided for in the Covenant and in the context of the full utilization of a States maximum available resources. Above all, the maximum of available resources clause requires the effective and equitable use of combined resources immediately. 36
3. The Way Forward: Several Ways to Make Housing Rights Real
Although the global campaign for housing rights has covered substantial ground and advanced these rights markedly over the past ten years, there can be no doubting that without added measures designed specifically to ensure the enjoyment by everyone of housing rights as human rights, the year 2000 will be witness to perhaps more homeless and inadequately housed people than ever before. The challenge of housing rights will only become a global reality as a result of innumerable actions by many millions of people as the dream of housing rights for all unfolds into the future. A lot remains to be done before housing will be universally perceived as a human rights issue per se, let alone ensuring universal human dignity through guaranteeing access to an adequate home for everyone, everywhere. In this light, several measures may bring these aspirations a bit closer to fruition.
New International Standard-Setting
Although the human right to housing finds legal substance throughout global human rights texts, there is still no single instrument which elaborates this right to an adequate extent. To a certain degree, this lack of a separate housing rights treaty has assisted in the rancorous tone of the housing rights debate this past year. Although the standard-setting process is invariably long, arduous and potentially risky, much of the groundwo