Is there a right to housing?
The lack of adequate housing is one of the most pressing problems facing humanity. The United Nations Centre for Human Settlements estimated in 1995 that over a billion people worldwide live in inadequate housing and that the world's homeless population totals over 100 million. The World Health Organization has stressed that housing is the single most important environmental factor associated with disease conditions and life expectancy. In many nations around the world, lack of adequate housing has been linked to epidemics, crime and social unrest.
Global government expenditures for housing are remarkably low compared to other areas. The United Nations Development Programme estimates that in 1990 government expenditure for housing was 3.32 per cent of overall public funds available. Education, by contrast, received 15 per cent, and health care 6.4 per cent.
A right to adequate housing
The need for adequate housing is described in various international human rights instruments, including the Universal Declaration of Human Rights (Article 25), the International Covenant on Economic, Social and Cultural Rights (Article 11), the International Convention on the Elimination of All Forms of Racial Discrimination (Article 5), the Convention on the Elimination of All Forms of Discrimination against Women (Article 14) and the Convention on the Rights of the Child (Article 27). The Declaration on the Right to Development also contains a relevant reference (Article 8). The implementation at the national level of these covenants and conventions is monitored by expert committees on a continuous basis.
During the debate at the 15th session of the Commission on Human Settlements and the Preparatory Committee II at Nairobi, in April-May 1995, all countries agreed that adequate shelter for all is an important goal towards which to strive. However, some countries disagreed on whether the right to housing exists as a human right recognized by international law.
At Nairobi, many UN Member States expressed the view that housing is an essential component of the foundation needed by every individual to participate fully in, and thereby benefit, society. Without it, individuals would not be able to take advantage of many of the human rights recognized by the international community. The right to privacy, the right to be free from discrimination, the right to development, the right to environmental hygiene and the right to the highest attainable level of mental and physical health, among others, are dependent on access to adequate housing.
Many countries supported the view that the human right to adequate housing is recognized in various international human rights instruments. The Universal Declaration of Human Rights, which was adopted in 1948, states in its article 25.1:
"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."Perhaps the strongest international legal foundation for a right to housing can be found in the 1966 International Covenant on Economic, Social and Cultural Rights, which had been ratified by more than 133 countries as of 1 December 1995. This document is a binding legal instrument which requires States that ratify it to be legally accountable to its citizens, the other States signing the document, and the international community at large. The Committee on Economic, Social and Cultural Rights monitors the implementation of this right through the examination of State reports, assesses the efforts of the Government to provide access to adequate housing and makes recommendations for future action. As stated in article 11.1 of the Covenant:
"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 cooperation based on free consent." Under article 2, "the States Parties... undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."One of the most widely ratified of all United Nations human rights texts, the International Convention on the Elimination of All Forms of Racial Discrimination, includes, in its Article 5, the obligation of States parties to "guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of... economic, social and cultural rights, in particular... the right to housing...." As of 1 December 1995, 145 countries had ratified the Covenant.
The Convention on the Elimination of All Forms of Discrimination Against Women, which was adopted in 1979, draws attention to the housing needs of rural women. Article 14.2 states that "States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to women the right to enjoy adequate living conditions, particularly in relation to housing...." As of 1 December 1995, 147 countries have ratified the Convention.
The special needs of children are addressed in the Convention on the Rights of the Child, which was adopted in 1989. Article 27 provides for the right of children to an adequate standard of living, under which "States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to... housing". As of 1 December 1995, the Convention has been ratified by 185 countries.
Article 8 of the Declaration on the Right to Development declares that "States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education... housing...."
While acknowledging the importance of adequate shelter for all as an important goal to strive for, some countries argue that it would be counter-productive to regard the need for adequate housing as a universally recognized human right. They believe that to do so would place too great a demand on the resources of States, opening them to third-party adjudication and possibly sanctions if found guilty of not upholding the right. Adequate shelter is proposed as an alternative, explicit goal for the international community.
These countries believe that international energies are better spent defending clearly established rights. They hold that it has not been clearly established that the right to housing has international legal status and that the Global Plan of Action proposed for the Second United Nations Conference on Human Settlements (Habitat II) is not the appropriate mechanism for doing so.
The May 1995 meeting of the United Nations Commission on Human Settlements in Nairobi was marked by much discussion of this very point. The head of the United States delegation to the conference, David Hales, insisted that while there was no substantive disagreement on the goal of adequate shelter for all, the USA was concerned by the international legal implications of an explicit right to housing.
"It is a very simple, legal, technical concern that has to do with the use of words", he said. "In the United States, we have legally established rights. If at an international level we agree to housing as a right, this implies that a third party could be called in to adjudicate and intervene if such rights are being violated. This could also imply sanctions against a country not upholding the right. What we are saying is that we should not confuse clearly established rights with needs and aspirations and goals."
On the other hand, Miloon Kothari, co-director of the Centre on Housing Rights and Evictions (COHRE), a non-governmental organization based in the Netherlands, believes that it is essential to explicitly state that housing is a human right. He said: "It is not just a legal, technical issue. The right to housing is a powerful, mobilizing tool for women's groups, street children and so on. Denying this right would be a great step backwards."
The implications of the right to housing
Article 2.1 of the International Covenant on Economic, Social and Cultural Rights spells out to Governments what they must do in the process leading to the universal enjoyment of rights, including the right to housing.
"Each State Party to the present Covenant undertakes to take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."In a more detailed clarification of the implications of formal recognition of housing as a separate human right, the Special Rapporteur on the right to adequate housing appointed by the Subcommission on Prevention of Discrimination and Protection of Minorities, in his final report to the Subcommission (E/CN.4/1995/12), stated that: "The legal recognition and obligations inherent in housing rights, at the most basic level do not [emphasis added] imply the following:
"(a) That the State is required to build housing for the entire population; (b) That housing is to be provided free of charge by the State to all who request it; (c) That the State must necessarily fulfil all aspects of this right immediately upon assuming duties to do so; (d) That the State should exclusively entrust either itself or the unregulated market to ensuring this right to all; or (e) That this right will manifest itself in precisely the same manner in all circumstances or locations."At the same time, the Special Rapporteur recognized that qualifications must be made to some of these findings so that States do not "misinterpret and abrogate" responsibility, especially towards disadvantaged groups. It was also found that a recognition of housing rights must be seen and interpreted to imply in the most general sense:
"(a) 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; (b) 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. (c) 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 aspects of the right in question."The legal obligations of the international community
Recognition of the right to housing as a human right has broad implications for the international community, including all State Governments and international agencies. Articles 55 and 56 of the Charter of the United Nations and several precedents under international law oblige all States to cooperate in the protection and promotion of economic, social and cultural rights. This responsibility is particularly incumbent on States that are in a position to assist others.
The Centre for Housing Rights and Evictions (COHRE) emphasizes that housing rights have more to do with political will than with the logistics of actually providing housing to people. COHRE notes that while the physical structure of a house, including the infrastructure and surrounding facilities, and security of tenure are important issues, they are largely dependent on whether land is affordable, available and accessible, whether cheap building materials are available and whether people have a right to choose where they want to live all of which, in turn, depend on whether Governments make these conditions possible.
UNCHS (Habitat) believes that any attempt to improve housing conditions must rely largely on an "enabling approach" that encourages Governments to establish the supportive legislative, constitutional and financial frameworks that will enable the formal and informal business sectors, NGOs, communities and individual households to contribute most effectively to shelter development. The Habitat Centre considers that the granting of secure forms of tenure is the most important step for Governments to undertake in pursuit of the policy goal of adequate shelter for all.
Entitlements comprising housing rights
The absence of a widely acceptable and recognized definition of the set of entitlements that actually comprise housing rights has been addressed by General Comment No. 4 of the Committee on Economic, Social and Cultural Rights, on the Right to Adequate Housing. It found that under international law, the following entitlements are vested in every person.
1) Legal security of tenure
However, given the unclear legal status of most economic, social and cultural rights, it is unlikely that the right to housing will be enforceable, especially in developing countries, where the majority of people do not have the means to acquire adequate housing. It becomes evident that the gradual realization of housing rights is closely linked to overall advancement in economic and social development.
Action taken at the national level
The Government of Chile is actively promoting the idea of housing as an individual and family right. It has implemented a housing policy that targets the needs of minority groups, including women. The objective of the policy is to integrate construction quality with affordability, and household saving schemes and community organizations have been created to support members of the target groups in their housing goals.
The city of Vienna, which is one of the world's largest landlords (220,000 municipal flats) has adopted the Housing Rehabilitation Act, which is laying the foundation for a new housing policy. The objective is to preserve and improve houses without evicting tenants, retaining their right to housing. As of December 1994, almost half of all the city-owned apartments had been improved, and a potential housing crisis was averted.
To facilitate the move towards adequate shelter for all is the stated objective of the Global Strategy for Shelter to the year 2000 (GSS), adopted by the United Nations General Assembly in December 1988. This universal strategy states explicitly that the right to adequate shelter constitutes the basis for national obligations to meet shelter needs. As the experiences of several countries show, the GSS has stimulated governments to think more critically about their approaches to the provision of shelter and their role as enablers in this process.
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