In her
first report to the Human Rights Council (A/HRC/28/62), the Special Rapporteur
on adequate housing, Ms Leilani Farha, focuses on the role and obligations of
subnational governments with respect to the implementation of the right to
housing.
The
report discusses challenges and opportunities for local and subnational levels
of government as they engage with housing through administrative, programmatic,
judicial and policy channels.
The Special Rapporteur
underlines the fundamental responsibilities subnational and local governments
have for implementing human rights. This is especially true when it comes to
the right to adequate housing. Local governments have increasingly critical
responsibilities not only with respect to the prevention of evictions but also
for the implementation of positive measures required for the progressive
realization of the right to adequate housing, including infrastructure
development, land-use planning, upgrading of informal settlements, development
and administration of housing and social programmes, market regulation and
resource allocation.
Under international human rights law, human rights
obligations extend to all levels of government. This means government
authorities at all levels must exercise their authority consistently with the
right to adequate housing. Local government is closest to community needs and
therefore can play a central role in bringing to light the most critical
housing needs and ensuring effective responses by all levels of government.
Context and challenges
The general trend since the
1990s has been toward decentralization of responsibilities especially with
respect to housing. Decentralization has been promoted on the basis of
‘subsidiarity’, which asserts that public responsibilities should be exercised
by the elected authorities who are closest to the people. In regards to
housing, decentralization has been encouraged as a way to enhance participatory
democracy, transparency and to allow for local innovation. However, the Special
Rapporteur notes that this process has often focused on economic and political
efforts, excluding human rights in the discussion and without ensuring that the
right to adequate housing is embedded in the way policies and programmes are
delegated.
At the same time, common challenges facing local governments
charged with implementing housing rights include: lack of financial and
human/technical resources; lack of human rights knowledge; limited
administrative capacity; overlapping/unclear responsibilities; discriminatory
practices against community “outsiders”. Those most affected when local
governments are unable to meet their obligations are the most vulnerable
including people living in poverty, living in informal settlements, or homeless
people, persons with disabilities, migrants, minority groups, and others.
The need for more accountability at international and
national levels
International human rights
mechanisms engage in direct dialogue with national level governments and tend
to overlook key responsibilities of subnational bodies. The Special Rapporteur has
learned that subnational governments often only indirectly experience treaty
body monitoring review processes or are often not made aware of the conclusions
or recommendations that could be essential for their own actions to ensure the
implementation of the right to housing. Although the adequate housing mandate
receives many allegations involving subnational governments, State responses
rarely show whether communications have been shared with local authorities.
Engagement of subnational level government is, however, feasible within the
international system. Some States have engaged subnational governments during
the Universal Periodic Review process, and special procedures have several
opportunities to directly engage with regional and local governments.
The right to adequate housing has been implemented at the
domestic level through policy measures and legislation as well as through
constitutional recognition. Domestic courts are playing an increasingly
important role in clarifying the obligations of sub-national governments. For
example, in the well-known Grootbroom case and subsequent cases, the
Constitutional Court of South Africa has recognized that local governments,
along with other levels of government, have obligations to progressively realize
the right to adequate housing and to secure and allocate the resources
necessary to fulfil their respective obligations. Extensive jurisprudence has
also emerged in other courts, which often consider housing rights claims in
relation to municipal and other sub-national levels of government. The Special
Rapporteur is concerned, however, that despite these advances, many domestic
courts have not applied domestic law consistently with the right to adequate
housing, and even when courts have ordered appropriate remedies, some
subnational governments have not implemented them.
Some emerging initiatives in
relation to housing at the local levels, and access to justice
In the last few decades participatory initiatives have
emerged to engage local governments, in particular through the concepts of the
“human rights city,” and “the right to the city”. For instance, Seoul declared
itself a human rights city in 2012, and has since adopted housing rights
measures. Brazil’s City Statute Law demonstrates the importance of shifting
urban design to focus on people, with local governments playing a central role.
These initiatives complement the “right to the city,” a movement promoting the
freedom to “make and remake our cities,” and values such as the social production
of housing/habitat and the rights to “sustainable and equitable urban
development” as set out in the 2005 World Charter on the Right to the City
Some initiatives have also
shed light on the essential need to ensure human rights protection through
independent mechanisms. At the local level, this can include ombuds offices,
human rights commissions, and elected councils to address human rights complaints
about housing and other related human rights. National housing plans should
clarify the role of all levels of government and specific strategies to deal
with housing at the subnational level are also crucial.
Key recommendations
The Special Rapporteur notes that effective implementation
of the right to adequate housing cannot be achieved without the proactive
involvement of local and subnational governments. Local governments are at a
critical point of intersection between rights holders and complex systems of
multi-level governance. That makes them central actors in the realization of
the right to adequate housing within diverse domestic systems.
The Special Rapporteur calls for increased recognition of
the role local and subnational governments play with respect to the realization
of the right to adequate housing and offers several recommendations to various
actors, in particular:
·
When
addressing adequate housing, international mechanisms should give further
attention to the human rights obligations of different levels of government.
Recommendations emanating from international human rights mechanisms should be
communicated to local and subnational governments with requests for responses
and follow-up action.
·
The
distribution of responsibilities for housing between different levels of
government should be clearly delineated, jointly coordinated, and subject to
independent oversight and review.
·
Any
processes of decentralization in relation to housing should be guided and
informed by human rights, in particular the right to adequate housing.
Transfers of responsibility for housing or other programmes from one level of
government to another should be accompanied by a clarification of concomitant
human rights obligations including requirements of monitoring and
accountability.
·
States
should guarantee access to justice and effective remedies for violations of the
right to adequate housing at the local as well as the national level.
·
States
should ensure subnational governments have resources and the capacity to meet
human rights responsibilities.
·
Cities
and municipalities should consider adopting charters that explicitly guarantee
the right to adequate housing and related rights.
·
Civil
society and community organizations as well as human rights institutions should
work to establish better links between international, national and local
initiatives to monitor the implementation of the right to adequate housing and
ensure that the obligations of local and sub-national governments feature
prominently in submissions to UN human rights bodies.
The report (A/HRC/28/62) is
available in all UN languages at: http://www.ohchr.org/EN/Issues/Housing/Pages/AnnualReports.aspx
* To download the report, please click here.