A Legal Study about Housing Policy
Linda's Hearth note: This study comes from the Human Rights Education Association, a website functioning for the United Nations. brought to us thanks to John Colby and HUFF.
Everyone shares the right to a decent standard of living. Essential to the achievement of this standard and therefore to the fulfillment of human life beyond simple survival is access to adequate housing. Housing fulfills physical needs by providing security and shelter from weather and climate. It fulfills psychological needs by providing a sense of personal space and privacy. It fulfills social needs by providing a gathering area and communal space for the human family, the basic unit of society. In many societies, it also fulfills economic needs by functioning as a center for commercial production.
The human right to adequate housing is the right of every woman, man, youth and child to acquire and sustain a secure home and community in which to live in peace and dignity. The right to housing is codified as a human right in the Universal Declaration of Human Rights:
"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." (article 25(1))
Population growth, migration to urban areas, conflicting needs for existing land, and insufficient financial and natural resources have resulted in widespread homelessness and habitation in inadequate housing. In every country children, men and women sleep on sidewalks, under bridges, in cars, subway stations, and public parks, live in ghettos and slums, or "squat" in buildings other people have abandoned. The United Nations estimates that there are over 100 million homeless people and over 1 billion people worldwide inadequately housed.
These statistics are evidence for the difficulty governments have in guaranteeing access to housing for their citizens, but they also raise complicated questions about the extent of the obligations of governments to do so. The fact of shelter as a human need does not imply that governments must provide each one of their citizens with land, four walls and a roof. Controversy can therefore emerge over exactly what governments should do to help people exercise their rights and obtain housing. Government action is usually country-specific, and is dependent on a variety of economic, cultural, and social factors. In some cases, increasing access to education or to the labor market is the best way to ensure the right to housing, because the realizations of those rights mostly lead to greater access to housing. In other cases, it is necessary for governments to provide physical shelter directly to people. But regardless of past government action, in all countries there exist people who, because of personal issues such as physical or emotion incapacity, environmental issues such as natural disasters or famine, or social issues such as war or political instability, are unable to obtain housing for themselves. In those situations, governments are obligated to help make housing accessible. Governments are obligated to function as fair and stable systems through which their citizens can achieve the satisfaction of their rights, and to provide the means for the realization of the right to a decent standard of living which their citizens may utilize through their own free initiative.
The right to housing is included in several international legally-binding documents. Among the most significant of these is the International Covenant on Economic, Social, and Cultural Rights (article 11.1), which determines that
In order to clarify the meaning and scope of the right to housing as expressed in the Covenant, in 1991 the Committee on Economic, Social, and Cultural Rights (CESCR), the body that monitors the International Covenant on Economic, Social and Cultural Rights, issued its General Comment 4.
The right to adequate housing applies to everyone. The phrase "himself and his family" does not refer to any limitation in the right to housing to individuals, female-headed households, or other groups. Furthermore, individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status, and enjoyment of this right must not be subject to any form of discrimination. (paragraph 6)
The right to housing should be interpreted in a broad and inclusive sense as the right to live in "security, peace and dignity" rather than a narrow or restrictive sense. The right to housing is inextricably linked to other fundamental human rights and should been seen as referring to not only housing by adequate housing (paragraph 7). The right to adequate housing must be viewed in conjunction with other human rights included in the two International Covenants and other international instruments (paragraph 9).
While the definition of "adequacy" with regard to housing is influenced by social, economic, cultural, climatic, ecological, and other factors, certain aspects of the right are applicable in any context. These are:
Legal security of tenure. Security of tenure means that all people in any living arrangement possess a degree of security against forced eviction, harassment, or other threats. States are obliged to confer this security legally.
Availability of services, materials, facilities and infrastructure. To ensure the health, security, comfort, and nutrition of its occupants, an adequate house should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.
Affordability. Affordable housing is housing for which the associated financial costs are at a level that does not threaten other basic needs. States should take steps to ensure that housing costs are proportionate to overall income levels, establish subsidies for those unable to acquire affordable housing, and protect tenants against unreasonable rent levels or increases. In societies where housing is built chiefly out of natural materials, states should help ensure the availability of those materials.
Habitability. Habitable housing provides the occupants with adequate space, physical security, shelter from weather, and protection from threats to health like structural hazards and disease.
Accessibility. Adequate housing must be accessible to those entitled to it. This includes all disadvantaged groups of society, who may have special housing needs that require extra consideration.
Location. The location of adequate housing, whether urban or rural, must permit access to employment opportunities, health care, schools, child care and other social facilities. To protect the right to health of the occupants, housing must also be separated from polluted sites or pollution sources.
Cultural adequacy. The way housing is built, the materials used, and the policies supporting these must facilitate cultural expression and housing diversity. The development and modernization of housing in general should maintain the cultural dimensions of housing while still ensuring modern technological facilities, among other things (paragraph 8).
The Commission on Human Settlements' Global Strategy for Shelter to the Year 2000 (1998) provides another definition of adequacy:
The additional human rights referred to in the CESCR's General Comment 4 are rights without the enjoyment of which the fulfillment of the right to housing is threatened or impossible. They include:
In addition, the right to housing provides a foundation that increases the likelihood of the achievement of other human rights. For example:
United Nations Human Settlements Programme (UN-Habitat)
Fundamental to the fulfillment of UN-Habitat's mandate is the monitoring of global conditions in the shelter sector and the assessment of progress in implementing the Habitat Agenda. Monitoring is accomplished though the agency's Statistics Programme, Urban Indicator Programme, and Best Practices Programme. Together, these programmes regularly document the housing situation at international, regional, national, and local levels. They are assisted in this process by Governments who submit reports every two years to the United Nations Commission on Human Settlements based on indicators developed by Habitat. Governments include information about the availability, quantity, quality, and affordability of housing in their countries, as well as action taken and progress made towards the fulfillment of the Habitat Agenda and other international agreements and commitments. Additionally, UN-Habitat tracks the advancement of the Millennium Declaration Goal No. 7, Target 11, to improve the lives of at least 100 million slum dwellers by the year 2020 taking into account the percentage of people with access to sanitation, the percentage of people with access to safe water, the percentage of people with secure tenure, and the percentage of people in permanent housing.
United Nations Housing Rights Programme (UNHRP)
International Union of Tenants (IUT)
Centre on Housing Rights and Evictions (COHRE)
International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.
The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to adequate food and water. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.
The following are the international treaties, declarations and commitments that address the human right to adequate food and water:
Universal Declaration of Human Rights (1948) (article 1, 2, 25)
International Covenant on Economic, Social and Cultural Rights (1966) (article 2,3, 11)
The United Nations Committee on Economic Social and Cultural Rights (CESCR) has elaborated on the rights contained in the International Covenant in documents known as General Comments. In general, the content of the general comments reflects a movement toward an interpretation of the right to housing with a broader and deeper reach. The most significant General Comments are::
General Comment No. 4 (1991)
General Comment 7 (1997)
The right to housing is also cross-referenced in other General Comments by the Committee. For example:
General Comment 5 (1994) (paragraphs 15, 22 and 33)
General Comment 6 (1995) (paragraph 33)
General Comment 14 (2000) (paragraphs 11 and 43)
The following documents also contribute to international and regional standards for the right to housing:
International Labour Organization Convention No. 97 on Migration for Employment (1949) (article 6iii)
Convention Relating to the Status of Refugees (1951) (article 21)
Convention on the Elimination of All Forms of Racial Discrimination (1965) (article 5e)
Declaration on the Rights of Disabled Persons (1975) (article 9)
ILO Recommendation No. 162 concerning Older Workers (1980) (section II, paragraph 5(g))
Convention on the Elimination of All Forms of Discrimination against Women (1979) (article 14)
Declaration on the Right to Development (1986) (article 8.1)
Convention on the Rights of the Child (1989) (article 27)
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) (article 43)
United Nations Draft Declaration on the Rights of Indigenous Peoples (1994) (article 22)
Governments has made international commitments specific to the right to housing, yet which are non-binding:
ILO Recommendation No. 115 on Worker’s Housing (1961)
Vancouver Declaration on Human Settlements (1976) (section I (8))
Beijing Declaration and Platform for Action of the Fourth World Conference on Women (1995) (articles 49, 60(n), 94, and 255(k))
Copenhagen Declaration on Social Development and Programme of Action (1995) (articles 19, 34(c), 34(e), 35(b), 39(h), 59(b))
Habitat Agenda and Plan of Action (1996)
Istanbul Declaration on Human Settlements (1996)
Declaration on Cities and Other Human Settlements in the New Millennium (2001)
The position of the UN Special Rapporteur on Adequate Housing was established in 2000 by the United Nations Commission on Human Rights resolution 2000/9 and mandated to report on the status of the realization of housing rights, promote cooperation among and assistance to governments, UN agencies, and international and national NGOs, apply a gender perspective, identify possible types and sources of funding for housing activities, and facilitate the inclusion of housing issues in relevant UN missions and national offices. In addition to briefing the sessions of various United Nations agencies and bodies on specific issues and regions, the Special Rapporteur reports annually to the United Nations Commission on Human Rights on progress made, emerging issues and challenges, and recommendation for future activities. Appointed in 2000 for a term of three years, the first and current Special Rapporteur is Miloon Kothari of India.
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2000) (article 16)
European Social Charter (1961) (Part I: article 31; Part II: articles 15(3), 16, 19(4)(b), 23, 30, 31)
European Convention on Establishment (1965) (article 2)
European Convention on the Legal Status of Migrant Workers (1977) (articles 6(1), 13)
Charter of the Organization of American States (1948) (article 34k)
Helsinki Final Act (1975)
Although most states do not stipulate a clear right to housing, most do have legislation and national programs related to housing. In fact, UN-Habitat reports that 75% of the world’s countries have constitutions or national laws that promote the full and progressive realization of the right to adequate housing. Legal protections of the right to housing at the national level often involve arbitrary eviction, safety and health regulations, or equal protection and non-discrimination issues. In the United States, for example, Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988; Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, as amended, Section 109, Title I of the Housing and Community Development Act of 1974, as amended; the Americans with Disabilities Act of 1990; and the Age Discrimination Act of 1975, as amended, all address housing. The U.S. Department of Housing and Urban Development (HUD) is charged with carrying out programmes to institute this legislation. The activities of its Office of Fair housing and Equal Opportunity (FHEO) involve the fulfillment of the right to access to housing in practice, but are not framed in a rights-based context by the U.S. Government.
The International Covenant on Economic, Social and Cultural Rights requires States to submit reports to the United Nations Committee on Economic, Social and Cultural Rights every five years detailing the measures they have taken to promote the realization of the right to housing of their citizens. Through these reports the Committee is able to monitor the progress of the right to housing. This monitoring function is impeded, however, by the fact that few States systematically collect the housing statistics and indicators necessary for a full appraisal, including the number of homeless persons, the number of inadequately housed persons, the number of persons arbitrarily evicted in the previous five-year period, legislation affecting the right to housing and land use, and measures taken to ensure that international assistance for housing is used to satisfy the needs of the most disadvantaged groups. In some cases, the State does not have the capacity to obtain this information; in others, the State chooses to devote its resources to other issues.
States, specialized UN agencies, and NGOs may raise specific issues related to the right to housing in several United Nations forums, and States may raise concerns about housing rights situation in another State if they feel the State is not fulfilling its legal obligations and commitments. To date, violations of housing rights have generally been limited to the context of forced evictions carried out or tolerated by the State. In the future, however, a general decline in housing conditions as a direct result of legislative and policy decisions by States parties to international conventions and in the absence of appropriate compensation will be considered a violation of those conventions. States committing these violations would therefore be subject to disciplinary or retributive measure by the United Nations. While the International Covenant on Economic, Social and Cultural Rights outlines no formal mechanisms by which individuals can submit complaints alleging the non-compliance of their Governments with their housing rights commitments, individuals may work with NGOs at the annual sessions of the Committee on Economic, Social and Cultural Rights to draw attention to the actions and legislation of States parties to the Covenant. In addition, individuals asserting certain types of housing violations could arguably utilize the complaint mechanisms of the International Convention on the Elimination of All Forms of Racial Discrimination, the Optional Protocol to the Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Economic and Social Council resolution 1503 procedure and the enforcement mechanisms of the International Labour Organization.
Individuals who wish to promote and protect their right to housing through their own Governments achieve varying degrees of success depending on their country of residence. International and regional treaties that specifically address the right to housing are widely ratified, but few states specify this right in their own constitutions and laws. Only since the 1990’s has a rights-based perspective of access to adequate housing become widely articulated. The Constitution of the Republic of South Africa (1996) is a notable illustration of this new perspective, as it explicitly guarantees the right to adequate housing and compels the state to take reasonable steps to achieve its progressive realization. It also prohibits the practice of forced eviction.
In many countries housing policy is oriented around securing the affordability of housing, which is an issue for both potential homeowners and renters. According to UN-Habitat’s State of the World’s Cities (2001), households in cities of developing countries need an average of 12.5 times their annual income to buy a house. The highest rents exist in the Middle East, where a household spends an average of 45% of its monthly income on rent. The creation of affordable housing generally involves Governments subsidizing the cost of building new housing, stabilizing rent, or offering loans or credit at a low-interest rate. Eligibility for public or subsidized housing is usually determined by a low income, and demand is especially high in urban areas.
Citizens who feel the satisfaction of their right to housing is in jeopardy may pursue a variety of legal and non-legal strategies to assert their rights. Legal strategies include legal appeals to prevent planned evictions or demolitions through court-ordered injunctions, legal procedures to obtain compensation following an illegal eviction, complaints against illegal actions carried out by landlords in relation to rent levels, maintenance, or discrimination, allegations of discrimination in the allocation or availability of housing, complaints about unhealthy or inadequate housing and class action suits related to significantly increased levels of homelessness. Non-legal strategies include research, education, monitoring, mobilization, participation in neighborhood networks, negotiation, constituency-building, intersectoral collaboration, development of model national housing plans, and budget analysis.
Most states have programs designed to address the immediate issues of homelessness, although these programs are usually operated on a local level. Homeless shelters and temporary housing provide shelter for those in need as well as other services such as counseling, job training, and advocacy to help people move towards a position from which they can obtain and maintain their own housing. Most governments also have plans and programs for aid to victims of natural disasters who have lost their homes.
Advocacy, Educational and Training Materials For Advocates
Learning, Reflecting and Acting for a Human Rights Future: A Training Manual for the Education of the Human Right to Housing in Urban Communities (by Teresita V. Barramed and Lea L. Espallardo, Quezon City, 1996)
The purpose of this module is to clarify the content and scope of the right to housing. The module presents international, regional and national standards guaranteeing the right to housing; enumerates the state’s obligations; elaborates on the guarantees provided under article 11 of the ICESCR as contained in General Comments 4 and 7 by the CESCR; and considers strategies for ensuring the enjoyment of the right to housing.
go to this website for lots more Human Rights info! hrea.org
Linda's Hearth note: I know, I know ~ this is too LONG for a blog. So they say. I felt, however, it is really important to share this stuff. I hope anybody who reads it, or any bits of it, will leave a comment, too? Keep me on my toes.