Housing Rights approach to tackle homelessness advocated

by Chakravarthi Raghavan

Geneva, 22 Feb 2001 -- The housing and living conditions across the world are deteriorating, with some 100 million now estimated to be without shelter, according to a report by a Special Rapporteur to the UN Human Rights Commission for its 57th session here in Geneva from 19 March.

Some 30 to 70 million children are living on the streets worldwide, and further exacerbating the situation is the trend towards ever more rapid urbanisation, particularly in Africa and South-East Asia, and the growing poverty in countries with a predominantly rural population, the preliminary report by Mr. Miloon Kothari, according to the Special Rapporteur on the right to adequate housing.

There is a need for further studies, based on the development of a research agenda, “on the effects of globalization processes, including liberalization, deregulation and privatization, with a particular focus on housing,” the report suggests.

“The right to adequate housing, as well as other economic, social and cultural rights,” the Special Rapporteur says, “needs to be framed in the context of today’s reality, wherein between one-fifth and one-quarter of the world’s population live in absolute poverty. Of the 6 billion people in the world, 2.8 billion live on less than $2 a day and 1.2 billion on less than $1 a day. Women comprise 70% of those living in absolute poverty, with most of the poor forced to live without access to such basic amenities as food, clothing and shelter.”

And according to the UN Centre on Human Settlements (UNCHS), there are some 600 million urban dwellers in the South living in overcrowded and poor quality housing - with inadequate provision of water, sanitation, drainage and garbage collection, putting their lives and health continually at risk; as do over one billion people living in rural areas.

Homelessness is not a phenomenon exclusive to developing countries. For example, 1.5 to 2.5 out of 1,000 in the United States, and between 4-12 per thousand in France, Germany and the UK are homeless.

And the statistics do not fully capture the state of housing: slums, squatter settlements, old buses, shipping containers, pavements, railway platforms, streets and roadside embankments, cellars, staircases, rooftops, elevator enclosures, cardboard boxes, plastic sheets, aluminium and tin shelters—“these are the contemporary forms of distressed housing around the world.”

Faced with this scale of the problem, the Special Rapporteur says, only the human rights paradigm, and a housing and land rights approach in particular, “can offer the radical and systemic changes necessary to this crisis facing humanity.”

Since the 1948 Universal Declaration of Human Rights, the right to adequate housing has found explicit recognition in a wide range of international instruments.

The Declaration itself, in Article 25.1, says that “Everyone has the right to a standard of living adequate for the health and well-being of himself and 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 beyond his control." The right to adequate housing has been further elaborated in Art. 11.1 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), and in other instruments focussing on the need to protect rights of particular groups; the 1979 Convention on Elimination of All Forms of Discrimination against Women (Art. 14.2), the 1989 Convention on Rights of the Child (Art. 16.1), and the 1951 Convention on Status of Refugees (Art. 21).

Noting the discussions on this issue in the Committee on Economic, Social and Cultural Rights, the Special Rapporteur has advocated the adoption of an optional protocol to this International Covenant, so as to enhance the realization of the right to adequate housing.

As a working definition of the right to adequate housing, the Special Rapporteur has suggested: “The human right to adequate housing is the right of every woman, man, youth and child to gain and sustain a secure home, and community in which to live in peace and dignity.”

Referring to the work on this question in the various treaty bodies, and the Sub-Commission, and the report in 1993 of Justice Rajindar Sachar (from India) as special rapporteur on promoting realization of the right to adequate housing, as well as the work at the UNCHS, the Special Rapporteur said that while all these are important, “progress on developing and operationalizing a UN systemwide thrust on right to adequate housing...has been slow. It was necessary to institutionalize housing rights in all relevant divisions of the Office of the Human Rights Commission, and for the UN General Assembly at its forthcoming “Istanbul+5” meeting to build on the reaffirmation of the right to adequate housing on the Habitat Agenda."

On the issue of globalization and the right to adequate housing, the Special Rapporteur points out that the benefits of globalization vary with the level of development of countries and, to a large degree, the ability of people to take advantage of the opportunities offered.

“For the homeless and the poor, the benefits of globalization have hardly been significant... there is a wide gap between income groups, within countries and across countries, in terms of the availability, affordability and habitability of housing and access to utilities, resulting in an increase in the number of people in inadequate and insecure housing and living conditions.”

Nearly all countries at all levels of development, the Special Rapporteur points out, have undertaken macro- economic reform programmes during the past two decades, influenced by market forces and policies of international financial institutions (IFIs). These reforms and domestic policy decisions of liberalisation, deregulation and privatization “have to varying extents constrained the exercise of monetary and fiscal policy options for social purposes, including provision of adequate housing."

Also, as UNCTAD has reported, despite the economic reforms, the expectant growth has been too slow, particularly among the least developed countries, to make a significant improvement in living or social conditions. The drawbacks of growing reliance on narrow macro-economic considerations that drive the availability of resources to social sectors has also been of growing concern to UN bodies.

And where developing countries have successfully attracted a large increase of private capital flows, the rapid growth of cities typically outpaces the provision of adequate housing - resulting in an increased number of the poor living in squatter settlements, with no security or civic services.

The situation is further aggravated when urban authorities or private operators clear such settlements for commercial use or high-income housing. The increasing trends towards privatization of housing services and markets also result in land speculation, commodification of housing, application of user fees for housing resources such as water, sanitation and electricity, and the repeal or amendment of land ceiling and rent-control legislation. “This results in increased marginalisation of the poor,” the Special Rapporteur says.

Linkages need to be established, the report says, between the processes of globalization and the realization of the right to adequate housing through collection of empirical data and analysis and assessment of impact of macro-economic adjustment and debt service on national housing and land policies. There is also a need to ascertain whether current global social policy prescriptions, under the rubric of ‘good governance’ and ‘poverty reduction’, are compatible with housing rights principles and obligations of States.

Access to safe drinking water and sanitation, the Special Rapporteur underlines, is intrinsically linked to full realization of the right to adequate housing. Globally, 1.7 billion people lack access to clean water and 3.3 billion are without proper sanitation facilities.

Referring to the work in this connection of the Special Rapporteur of the Sub-Commission on Promotion of Human Rights, on the right to access of everyone to the drinking water supply and sanitation services, Mr Kothari draws attention to “... the impediments to the realization of the right to housing that comes from the application of ‘user fees’ to water, specially when it is done without regard to the capacity of the poor to spend the meagre funds they have for this life-giving resource.  This issue should hence remain a central component of the work on right to adequate housing."

Another area to be explored and analysed relates to the impact of growing income disparity among and within countries, the impact of globalization, non-compliance with international human rights instruments and the over-emphasis at the national level with wealth per se and a lack of strategies for distributive justice, including land reform and increase in social spending.

The forthcoming Third UN Conference on LDCs at Brussels, he suggests, provides an opportunity for both LDCs and developed countries to address, among others, the housing situation of the LDCs --  in the face of increasing poverty, inadequate civic services and other environmental and social factors—and renew their commitments to the new programme of action for LDCs.

However, regrets the Special Rapporteur, despite recognition of the housing issue in the 1990 Programme of Action, the draft Programme of Action for LDC-III “does not contain any reference to housing as a component of an adequate standard of living.”

The Special Rapporteur intends to address, in future reports, on the gender discrimination in housing and land rights, on children and housing rights, forced evictions and indigenous and tribal peoples’ housing and land rights. This last he notes, has been one of the most contentious issues for States in their relationships with indigenous peoples.

On the question of domestic applicability and justiciability, the Special Rapporteur notes that more than 30 countries currently include housing rights in their constitutional framework. An important priority for the 145 States that have ratified the ICESCR, is ensuring domestic status and application of constituent rights under the convention.

“Justiciability of the right to adequate housing in courts at all levels is needed in order for States to effectively respect, protect, promote and fulfill the right to housing,” the Special Rapporteur suggests.

The report welcomes in this connection the right to housing recognized in the Constitution of South Africa, and commends the decision in October 2000 by the Constitutional Court of South Africa on the housing rights of persons forced to live in deplorable conditions, while waiting for their turn to be allotted low-cost housing.

The report at the same time is critical of two recent judgements in India, and views these as “significant setbacks”.

The first ruling to which the Special Rapporteur draws attention is the one by the Supreme Court of India in the case relating to the Narmada dam, and says that the judgement “reveals a regressive attitude towards housing rights and a disregard for both fundamental human rights and India’s obligations under ICESCR.”

The litigation before the Supreme Court related to the Narmada dam construction and its impact on the environment and the hundreds of thousands of tribal people in the Narmada valley.

Despite detailed knowledge of the inability of authorities to determine the total number of people to be displaced and to find adequate land for their resettlement, and the incomplete resettlement for those already displaced, the Special Rapporteur notes that the Supreme Court of India ruled that “... displacement of the trials and other persons would not per se result in the violation of their fundamental or other rights” and held that the construction of the dam would continue. The judgement, he complains, has contradicted previous Supreme Court rulings upholding the right to shelter as related to the right to life.

Another court case and judgement, viewed as retrogressive, was by the Bombay High Court accepting a petition of the Bombay Environmental Action Group “to remove forthwith” informal settlement dwellers adjacent to the Sanjay Gandhi National Park to ensure protection of the environment and all its aspects. The court directed the relevant authorities to evict persons from their homes, pursuant to various wildlife protection and conservation laws, depriving the evictees of their livelihood.

Particularly disturbing, says the Special Rapporteur, is the fact that the Court not only ordered this mass eviction, but explicitly ordered the demolition of homes and destruction of all belongings and construction materials. And in the first wave of evictions, these were gathered and burnt by the demolition squad.

“The recognition of the indivisibility and interdependence of human rights is essential to their full realization. It is therefore a matter of concern that judgements across the world are unfortunately providing a legal basis for a growing conflict between proponents of the right to a healthy environment and the right to housing and livelihood. These judgements not only create disharmony among complementary human rights, but in doing so, violate the human rights of the very people the courts are charged with protecting.”

In outlining the future work under the mandate, the Special Rapporteur stresses that in the era of increasing inter-dependence, when States acting alone cannot meet their human rights obligations, it is important to go beyond the discussions of official development assistance or other forms of financial assistance. The “solidarity” and “fraternity” discussions of international cooperation need urgent attention. Two areas of work proposed to be further examined are: (a) the need to review existing and potential international economic and other obligations, and (b) need to assist through ‘joint and separate action’ in the improvement of housing and living conditions.

He underscores the need to address the human rights aspects of international cooperation in the context of the High-Level Event on Financing for Development to be held in 2002.

The increased focus on poverty and country-owned processes in the international financial institutions, like the World Bank and the IMF, is reflected in new instruments such as the Poverty Reduction and Growth Facility (PRGF) of the IMF and the Poverty Reduction Strategy Paper (PRSP) and the Comprehensive Development Framework processes of the World Bank.

However, comments the Special Rapporteur, “given the reluctance of these institutions to jettison the narrow macroeconomic perspective that continues to drive these new initiatives, it is unlikely that these policies will contribute to the realization of economic and social rights in general and the right to adequate housing in particular”.

Given the information already available, says the Special Rapporteur, it is clear that housing and living conditions across the globe are deteriorating. “A forthright approach in the mandate that draws upon the considerable wisdom that rests with governments, the UN and other international agencies, civil society and professional community can result in concrete policy recommendations aimed at alleviating the enormous shortfall in the global realisation of the human right to adequate housing,” he adds.-SUNS4842

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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