Social Production of Habitat and
the Human Right to Adequate Housing
Joseph
Schechla, coordinator of the Housing and Land Rights Network of Habitat
International Coalition
Experiences in the social production of habitat (SPH)
are diverse in their objectives, scope and tactic, thus complicating any
attempt at generalization. However, considering the nature of social movements
(SMs), in general, and those movements of impoverished inhabitants engaged in SPH,
in particular, it is still possible to draw out a number of common features.
Expressed as observations, rather than definitive conclusions, the experiences
under review suggest the following:
- SMs
and SPH experiences both have no stable/permanent/singular texture,
composition or cohesion, but are dynamic, expanding and contracting over
time;
2.
SPH experiences
usually begin with individual, discrete actions before ultimately converging in
a collective form, featuring:
- Active protagonists inclined to link with
others in a flexible planning process,
- Diagnosis of problems based upon a agreed
expression of needs,
- Participatory decision making that includes the
whole of the actors,
- Processes of consensus building and conflict
resolution
- Projects that express a collective sense of
what is possible, and
- Collective construction and implementation of
action plans.
- perhaps
more than any other social group, the impoverished inhabitants mostly rely
on themselves to survive and improve their living conditions;
- the
ordinary people are able to bring about changes that charismatic
leadership, State policy and/or revolutions do not achieve, but positively
affecting the (however uneven) “circulation” of power in the favor of the
marginalized, vulnerable and impoverished communities;
- the
relative disadvantage in education, skills, connections and other
opportunities makes direct SPH actions the most viable method of
self-development;
- the
disenfranchised cannot afford to be ideological; they can be ideologically
polarized, but SPH actions seek and deliver tangible improvement in living
conditions as the over-riding principle;
- SPH
movements are not necessarily concerned with, or driven by larger,
political considerations (in some case, social scientists assign these
features post facto);
- the
language of claiming rights is found in uneven measure across SPH
experiences, but appears to develop with the articulation and
justification of collective interests and objectives, especially when the
community (and its dwellings) are threatened and/or their SPH actions are challenged;
- SMs
and, especially, SPH movements promote democratization locally and more
broadly;
- while
alternative development necessarily begins locally, “without the state’s
collaboration, the lot of the poor cannot be significantly improved”;
therefore, the State’s control over the development process may be over-estimated;
- the
State could and should play a more-constructive role in coordinating
functions (to respect, protect and fulfill rights) to facilitate SPH;
- State
institutions gain local and international legitimacy by upholding housing
rights obligations when playing the facilitating role in support of SPH.
It
is with these observations that we begin to discover the ground common to both
SPH and HRAH not only in the nature and objectives of the SPH process, but, ultimately,
also in the expression of values and claims. This section attempts, first of
all, to identify the housing-rights content already present in SPH experience,
whether the actors articulate it as such or not. In doing so, we shall be able
to appreciate the advantages to all concerned parties in drawing on the housing
rights framework in the SPH process. Thus, this inquiry culminates in the
proposition that human rights—and, in particular, HRAH—and SPH are naturally
and inextricably intertwined. Although neither SPH nor housing rights is particularly
new to most regions, combining the lessons and techniques of both specializations
can provide new strategies to address contemporary development problems and
policy dilemmas, especially those accompanying economic globalization.
SPH demonstrates characteristic needs and rights:
New social movements are generally
characterized as expressing distinct identity and deep meaning, while pursuing
a goal or interest. Some
forms of social movements display less-verbal expression and more action. SPH
is one of a category of social movement experiences that often emphasizes deeds
over words, and whose key actors are local, rather than adopting, or adapting
to notions, values and goals originating outside the community. Nonetheless,
the expression arising from these experiences constitutes an amazingly common
language reflecting common needs and values, including the search for life in
dignity. The
intrinsic dignity of each person is, in fact, the core value that eventually
became codified into human rights law.
In
SPH movements, expedient self-fulfillment assumes the highest priority, often
despite those authorities, institutions and public facilities that are
theoretically obligated under human rights law to ensure such fulfillment
(e.g., central and local authorities, ministries, or even budget allotments).
SPH movements fill the gaps left from the State’s (i.e., duty holders’) failure
to “respect, protect and fulfill” human rights, particularly the human right to
adequate housing (HRAH) and related rights.
Largely due to their origins in discrete
and even individualistic initiatives, SPH actors often find themselves
responding tactical to a “structure of opportunities,”
rather than first erecting a legal framework for an initial claim to a human right.
Articulation of such rights, per se, features in the more-advanced
stages of SPH, just as collective articulation in general, or alternative
planning en groupe require a deliberate process to evolve. Even in the
absence of a predetermined plan to engage a human rights-based and/or
direct-action strategy, such tactical processes may take place as a reaction to
other galvanizing (usually external) factors.
SPH
often involves “everyday forms of resistance.”
Naturally, the authors of this resistance justify their actions with
corresponding claims, when required. In such situations, SPH actors typically
will stake their claims on the moral principle of need, but may also
substantiate this principle with a claim to a “right” that would find its source
and authority in applicable law. Such claims typically follow a process in
which the community members come to agreement on goals and strategies, and
after a deliberate, awareness-raising intervention involving allies specialized
in human rights and the law.
The
SPH experiences that lay claim to particular rights are typically those
involving actors already operating within the human rights framework and using
tools of argument that invoke law, including universal norms found in
international human rights treaties that the State has ratified. These are
likely specialists who originate elsewhere, but have developed alliances with
the community. Whether or not such actors introduce the language of human
rights norms at some early point, most mature SPH experiences, like most social
movements in general, find it opportune to socialize the language of rights and
freedoms at some point in their course. These rights claims are most
sustainable when grounded in already existing (i.e., codified) rights, rather
than claiming new rights without a legal basis. That would leave the claim
vulnerable to contention by adversaries who would appear to have the more-credible
to having the law on their side.
Nonetheless,
we find experiences in which social movements, including SPH actors, have socialized
the language of claimed rights with rhetorical effect, but without
substantiating the claim with an existing code or recognized obligation binding
the targeted institutions and authorities. Purely rhetorical use of rights
language without an authoritative legal base could be tactically hazardous
where SPH actors claim an actual right without the capacity to identify the
right’s (1) legally binding source, (2) normative content, (3) corresponding obligations
and (4) duty holders. SPH actors similarly could lose their public claim to a rhetorical
“right” that cannot be found in any legal instrument, such as in claims to “a
right to the city.”
Either
scenario—inability to substantiate a right, or claiming a value to be a “right”
without a corresponding legal basis—weakens the movement’s standing before the
authorities and the wider public. Moreover, demonstrating the elements of an
actual right is required before asserting that a “violation” has occurred.
These hazards can be eliminated by strategic capacity building, not least by
networking beyond the community to pool human resources (lawyers, activists,
NGOs, political parties, etc.) and (1) transfer rights-based argumentation skills
to those authoring the SPH actions, or (2) otherwise attribute those arguments
to the SPH actors through a division of labor among the community actors and
the other parties allied with them.
This
articulation is most effectively combined with the practical and technical
problem-solving arguments appropriate to the local needs and specificity. As
demonstrated in numerous local examples, the strategy that combines
“needs-based” and “rights-based” approaches reinforces the meaning and values
to both. Thus, such SPH experiences illustrate the artificiality of resource
wastage in maintaining a false dichotomy of separating “needs” and “rights,”
particularly as they share a moral genesis in the notion of common human
dignity.
This
is also not to say that the SPH process and actors do not already possess the essential
raw material effectively to claim the fulfillment of their needs as a right. The
false dichotomy between needs and rights typically arises rather from the
insistence of “specialists” vested in one or another approach, but ostensibly
allied with the struggling communities. One of the enlightening lessons of SPH
processes is that the needs to be fulfilled and the rights claimed as SPH goals
are organically linked with the legally specified elements of the human right
to adequate housing and the people’s goals of self-development.
The
argumentation that finds its way into the human rights literature, including
the legal literature, is inspired by these human struggles and the striking consistency
of their claims across borders and time. SPH movements are, by nature, problem-solving
initiatives, if also seeking to solve daily problems in alternative ways; i.e.,
without the dominance of outside institutions. Culminating centuries of
cumulative human experience in the form of multilateral agreements, human
rights norms also were developed and codified as imperatives for remedying and
preventing problems. Upon review of the housing rights imperatives relating to SPH
movements and their claims, the principal difference between the two appears to
lie only in that the human rights law is already binding, even though it may be
written in language intended for broadly applicability. The SPH movement
provides the needed specificity for local application of the already-existing housing
rights obligations and, in turn, contributes to the further elaboration of the
human right’s content and the meaning of the corresponding obligations of duty
holders.
Common objectives:
Applying the human rights framework finds common cause
with the SPH experience in that they both seek:
- A
redistribution of social goods and opportunities by the “constant
improvement of living conditions”
and “progressive realization”
of those improvements;
- Reclaiming
political space from the State and other dominant factors by implementing
concepts of local self-determination
and the right to participation
as full citizens;
- Conduct
of governing authorities and institutions consistent with 1 and 2.
Within
these broad parameters is the constantly developing specificity as to what the
State and other parties (including corporations) are to do to achieve these
broad goals. Social movements and, in particular, SPH movements constitute one
important source of human rights and HRAH through their priority-setting and implementation.
Regardless of whether the SPH actors are vociferously asserting claims, or
quietly justifying their actions based on the moral principle of human
necessity (in order to conduct a dignified life), their words and actions have
become the very content of the human right to adequate housing and its
jurisprudential guidance. These claims and assertions take on practical
specificity in SPH experiences compiled from across the Habitat International
Coalition.
The Longos Community struggle against force displacements,
in Manila, finds the Urban Poor Association (UPA), a local NGO, “strengthening
the people’s determination to assert their rights and interests.” The case study revels that the community
and the UPA deliberately have worked for “the defense of tenants’ rights.” In Peru during the intercensus period of
1983–91,
most of the 121,249 homes were built by the “social sector,” and, in 1993–96, no fewer than 700 informal settlements
grew up in Lima alone. Five
years later, in the context of the UN Habitat global campaigns on secure tenure
and urban governance, and coinciding with a country mission to Peru by the UN Special Rapporteur on adequate housing,
a popular campaign asserted “the right to descent housing for all.” The
campaign has had far-reaching goals, including constitutional reform to restore
“the right to housing.”
Mexico
City’s “Unión de Palo Alto”
cooperative movement has represented an urban struggle to remain in the city as
a matter of “right.” In articulating that claim, the inhabitants also asserted
their “right to land,” even though they apparently did not invoke the codified
rights needed to substantiate it.
Nonetheless, their claim remains a “popular source” that gives meaning to land
as an essential housing resources, an element of “environmental goods” already
codified as an entitlement under the human right to adequate housing, and land
as an “emerging right.”
In the case of Los Cortaderos, in Córdoba, Argentina, SPH involved the
Unión de Organizaciones de Base por los Derechos Sociales (UDBDS). Their experience demonstrated the claim to rights, as
implied in the protagonist NGO’s name, but also generated a process of denunciation
(of “violations”) and building capacity to enable people to know their rights
and obligations.
Such
experiences as the “Coopération Féminin pour la Protection de l’Environnement,”
in Bamako, Mali, cited rights in the most general terms, but identified their
efforts to provide clean water and sanitation for the region as an act in
defense of the “rights of the population.” In the case of the Revolving Credit Fund for
Financing Residential Cooperatives in Rio de Janeiro (Brazil), the Fondacão Centro da Defesa dos Dereitos Humanos Bento Runião applied the tools of financial affordability to ensure
the inhabitants’ “exercise of rights.” The SPH experience of “Programa
de Desarrollo Urbano y Habitacional en la Reserva Territorial de Xalapa” (Mexico), the community advanced its human right to housing by referring to its source as a specific
provision in the Mexican Constitution.
Likewise,
the language of the SPH movement in Barrio Santa Rosa de Lima, Santa Fé (Argentina) claimed a bundle of rights relevant to their cause, in particular rights to
property and secure tenure for the inhabitants of Barrio Santa Rosa de Lima.
Likewise, the case of “Programa de Desarollo Local y Communitario Tá Rebocado,”
in Salvador de Bahía (Brazil) involved inhabitants rallying in the collective
claim to a “right to property”
Sawada Village, in Upper Egypt, exemplified the struggle of impoverished
communities to achieve recognition of their right to remain. Whereas many
families had been residing on State lands out of desperation, legal petitions necessarily
paralleled microcredit projects in exercise of the claim to secure tenure, an
element of the human right to adequate housing.
Land as a public good, as well as a subject of
traditional tenure rights has been part of the struggle that the Regional
Council of Unrecognized Villages in the Naqab/Negev (Israel) has carried on for
the past decade. Their campaign to sustain and develop their habitat has
concentrated on the claim to equal citizenship rights and State obligations to
meet minimal governance criteria. The
State, in this case, has failed so fundamentally that it has negative
consequences for the State’s claims to democracy by establishing a separate
“Jewish nationality” as the criterion for discriminatory treatment in services and
dispossession of the indigenous people.
In their case, the struggle is not only about these
specific rights and elements of the human right to adequate housing, but also
invokes the States treaty obligation to apply nondiscrimination as a principle
of application. While this grave pattern of violations has no relief in
ideologized courts of the State, their case before the international treaty
bodies became the source of legal recognition for their rights, including the
“emerging right” to land.
The habitability of the living environment was a
central concern to the inhabitants and the service-providing Coptic Evangelical
Organization for Social Services (CEOSS) in Old Cairo. The case of “Al-Fustat
Potters Village Initiative to Upgrade Coptic Cairo” focused on health and a
healthy environment as rights, and not merely the subject of a charitable
intervention. The record of the experience invokes the local Environmental
Protection Law No. 4 (1994) as a tool for upgrading the ancient neighbourhood.
Meanwhile, the UN Committee on Economic, Social and Cultural Rights reviewed
and denounced the forced evictions that the Cairo Governorate previously had
carried out against the inhabitants of al-Fustat as a violation of Egypt’s human rights treaty obligations.
The social production of habitat by the Sons of Dhana
Valley, in Jordan, is no less than an exercise in the right to local
self-determination as a means toward realizing the right to adequate housing,
among other economic, social and cultural rights. The local community insisted
on maintaining natural environment goods and services locally in a way that
served larger social-development needs.
In that SPH movement case, the community did not resort to human rights treaty
arguments, as such, at least not explicitly identifying the specific rights.
However, they drew on rights embodied in custom and tested these as a guarantee
of the respect, protection and fulfilment of rights with clarifying local
specificity.
The Safat al-Laban neighbourhood of Cairo struggled,
negotiated and, ultimately, invested their own material resources in order to
fulfil their housing rights entitlement of access to potable water and
sanitation as public goods and services. The State and, in this case, local
authorities bear the obligation to uphold that entitlement and right, as
articulated by the Egyptian Center for Housing Rights. This claim formed one of
the tools of negotiation with the local authorities that led to a practical
solution to problems of rights enforcement, which is the protagonist ECHR’s
specialization.
Whether or not a SPH movement articulates the claim
to rights, as noted, is often a matter of its evolution. However, the denial of
rights to social goods and services appears to be a typical motivator of SPH
movements seeking alternative development, including urban migration. In
prerevolutionary and postrevolutionary Iran, for example, SPH movements have
been traced to neglect of rural investment in services; a 1984 survey of Hamadan and Isfahan provinces found that 85% of poor migrants had left their villages
because of low income and inadequate access to water and land.
Town Planning and Democracy in Paris is an ambitious
program that has sprung from the claim to the indisputable “right to
participate” and, therefore, specifically to influence “the planning and
management of the urban surroundings.”
Likewise, the language of the SPH
movement in Barrio Santa Rosa de Lima, Santa Fé, Argentina, also incorporated
concepts of citizenship and the corresponding right to full participation.
In a contrasting situation, the popular claim of the
right to participation has parallel meaning and motivation. A case entitled “Participation
in Community Service Provision in Post-war Angola” recounts the provision of water and sanitation for poor urban
communities, where over 80% of these residents have no clear legal title to the
land they occupy and pay extremely high prices for inadequate basic services.
One of the great challenges to postconflict development in Angola is in the promotion of socioeconomic inclusion such that guarantees the urban poor’s
rights and provides opportunities for civic leadership to emerge.
Even in context of urban popular
agriculture, for example, the “Nairobi and Environs Food, Agriculture and
Livestock Forum (NEFSALF)” is pursuing
the idea of political freedom as broadly conceived. The community seeks to
develop their local habitat while claiming civil rights and opportunities to
determine who shall govern them and on what principles.
The
end of military dictatorship in Argentina saw the rapid growth in the social
production of habitat. Squatters in Buenos Aires interpreted democratization
values by invoking a “right to settle.” While such a rights claim has
antecedents in international applying to refugees and displaced persons, as
well as to the human right to freedom of movement, it reflected also the local
“regulation plan” adopted by ordinance of the local legislative authority, but
never actually implemented.
Owing
to the particular and prolonged nature of the struggles in South Africa, the people’s housing process in “The Case of Vosloorus Extension 28” provides
an example of SPH that finds the community claiming a range of housing and
habitat values as “rights,” and rooting those claims in the various local,
regional and international human rights instruments. The protagonist NGO, Planact,
has facilitated the urban poor’s access to adequate housing, helping them acquire
access to housing subsidies, planning and implementation of the people’s
housing process as practical means of supporting the habitable environment
agenda and, thus, fulfillment of the human right to adequate housing.
Moreover, while invoking South Africa’s democratic Constitution as a source of
the human right to adequate housing and the State’s corresponding obligations,
Planact also has articulate the claim for the urban poor to their equal rights
to participation in decision
making, gender equality and children’s inheritance rights.
SPH and the indivisibility of rights:
Some
SPH movements already embody simultaneous claims to a variety of rights. By
applying the needs of a community in a construct of claims, it becomes clear
that the consequences to one human right inevitably affect other rights and
values. As we have seen already in the cases of Paris, Buenos Aires and Nairobi, the claim to the human right to adequate housing invokes also the right to
participation, which rights must be fulfilled simultaneously. In other
experiences of struggle to meet the needs of a social segment, housing rights
may be combined with a broad-based agenda of claims to the gamut rights
applying to children, women or minorities.
A
campaign to provide adequate and affordable shelter through housing cooperatives
in Dar es Salaam and Dodoma, Tanzania is a case in point. The focus of Women’s
Advancement Trust, the activist organization in this case, sought to implement
the right to gender equality as well as women’s specific rights to land and
housing. The Tá
Rebocado local and community development program (Salvador de Bahia, Brazil) perceived housing, education and work as inter-related rights in their struggle, as
well as special application of these rights and other protections for children.
In Egypt, the initiative to
upgrade the living conditions of Al-Fustat Potters Village invoked not only the
rights to health and a healthy environment in connection with the human right
to adequate housing, the community and their partner NGO articulated their
efforts as serving the people’s right to work.
The Jordanian Dhana Valley SPH experience began with an initiative to
self-manage the natural environment, but expanded to a more-holistic vision
involving the bundle of rights that constitute the right to development.
SPH can draw the participant into a dilemma of
competing rights. While urban poor in Manila were claiming their rights to
adequate housing, landlords contended by claiming their own “right to evict”
based on a narrow reading of the local law without the necessary qualifications
arising from human rights. This
compelled the community to develop counterarguments with legal authority to
assert a superior right to remain and enjoy secure tenure, an entitlement of
the human right to adequate housing.
The case in two Palestinian refugee camps in Syria emphasizes a specific context of SPH and rights application to long-displaced
communities and is complex in a different way: The refugees are claiming rights
to remedy for criminal acts of dispossession. However, the unique dynamic
between rights claims pits these indisputable but long-denied rights to return,
restitution and compensation against the immediate human need of everyone for
adequate housing now. The delicate compromise among rights was achieved to
multilateral satisfaction of concerned parties, however temporarily. Another
level of basic rights awaits fulfilment.
Reflections in the legal basis of the rights that the
SPH movements have claimed
The first time in which a multilateral agreement referred
to a “human right” to adequate housing was in the 1948 Universal Declaration of
Human Rights. Its Article 25 recognizes the principle that "Everyone has
the right to a standard of living adequate for health and well-being…including
food, clothing, housing, medical care and necessary social services."
However, as a declaration and not a treaty, this recognition of principle does
not carry enforceable obligations on States.
The first binding legal instrument to guarantee the
right to housing was the International Convention on Elimination of All Forms
of Racial Discrimination, adopted by the UN General Assembly in 1965. It codified
the right housing in Article 5.e (iii), such that
States parties undertake to prohibit and eliminate
racial discrimination in all its forms and 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 the following
rights:...(e) Economic, Social and Cultural rights in particular:…(iii) The
right to housing.”
In
1966, the General Assembly adopted and opened for ratification the fundamental
Covenants covering the range of human rights and corresponding State
obligations. Currently, 148 States parties to the Covenant on Economic, Social
and Cultural Rights now "recognize the right of everyone to an adequate
standard of living...including food, clothing and housing" (ICESCR,
article 11[1]).
Standing alone, this passage does not provide
sufficient guidance as to what the right contains, or what is entailed in the
State’s fulfillment of obligations to respect, protect and defend HRAH. Therefore,
the treaty-monitoring body authorized for has developed the legal guidance for
States parties, based in the problems and solutions arising from the
international jurisprudence under the Covenant. In defining the basic elements
of “adequate housing” as a human right, the Committee on Economic, Social and
Cultural Rights adopted General Comment No. 4, which
applies generally to each and every State party to the Covenant. In a measure
to define the legal specificity of both the right and the State’s corresponding
obligations, the Committee’s GC 4 determined that all of seven elements must be
present and satisfied in order for housing to be considered as adequate in
meeting the requirements of the treaty:
(a) Legal security of tenure. Tenure takes a variety of
forms, including rental (public and private) accommodation, cooperative
housing, lease, owner-occupation, emergency housing and informal settlements,
including occupation of land or property. Notwithstanding the type of tenure,
all persons should possess a degree of security of tenure which guarantees
legal protection against forced eviction, harassment and other threats…;
(b) Availability of services, materials, facilities and
infrastructure. An adequate house must contain certain facilities essential
for health, security, comfort and nutrition. All beneficiaries of the right to
adequate housing 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;
(c) Affordability. Personal or household financial costs
associated with housing should be at such a level that the attainment and
satisfaction of other basic needs are not threatened or compromised…;
(d) Habitability. Adequate housing must be habitable, in
terms of providing the inhabitants with adequate space and protecting them from
cold, damp, heat, rain, wind or other threats to health, structural hazards,
and disease vectors. The physical safety of occupants must be guaranteed as
well.
(e) Accessibility. Adequate housing must be accessible to
those entitled to it. Disadvantaged groups must be accorded full and
sustainable access to adequate housing resources. Thus, such disadvantaged
groups as the elderly, children, the physically disabled, the terminally ill,
HIV-positive individuals, persons with persistent medical problems, the
mentally ill, victims of natural disasters, people living in disaster-prone
areas and other groups should be ensured some degree of priority consideration
in the housing sphere…;
(f) Location. Adequate housing must be in a location which
allows access to employment options, health-care services, schools, child-care
centres and other social facilities. This is true both in large cities and in
rural areas where the temporal and financial costs of getting to and from the
place of work can place excessive demands upon the budgets of poor households.
Similarly, housing should not be built on polluted sites nor in immediate
proximity to pollution sources that threaten the right to health of the
inhabitants;
(g) Cultural adequacy. The way
housing is constructed, the building materials used and the policies supporting
these must appropriately enable the expression of cultural identity and
diversity of housing…
It
is important for local SPH activists to know that the contents of the General
Comment No. 4 were not only identified through the “constructive dialogs”
between the treaty-monitoring Committee and State parties to the Covenant, but
also with nongovermental parties. The main actor drafting and promoting the
General Comment was the Habitat International Coalition, acting in its
consultative status with the United Nations and in support of the Committee’s
work. HIC had channeled its pool of experience and the language of the SPH and
social movement experience into the criteria that ultimately became legal
findings.
One
purpose of the drafting, promotion and adoption of the General Comment was to
provide a tool that would serve local communities as much as it would serve the
Committee, for its monitoring part, and the States parties, for their part as
the ultimate implementers of the Covenant. Therefore, the development and
specification of HRAH in law had a mutual and reciprocal relationship with SPH
and social movements long before its elaboration as a legal instrument, but
that relationship between people and law was—and remains—symbiotic: it is
people’s experiences and expressed needs that inform the specificity found in
the human rights law, and human rights law takes on just as much meaning and
authority as the people themselves give it by utilizing it.
In that reciprocal and symbiotic involvement of
people and law, it has since become clear that addition to these elements,
other related and separately codified human rights are integral to the respect,
protection and fulfillment of the adequate housing, especially in certain
circumstances of application. This calls for inclusion of the “congruent” rights
to:
-
Information;
-
Education and
capacity building;
-
Participation;
-
Freedom of
association;
-
Self-expression;
-
Refugee and
displaced persons’ rights to resettlement, nonrefoulement, restitution,
compensation and return;
-
Privacy and
-
Security of person.
Applying
these additional human rights law criteria of the human right to adequate
housing is intended to ensure that “every man, woman, child and youth attain
and sustain a secure home and community within which to live in peace
and dignity.” Therefore, if we were to combine the legal specificity
available in the General Comment No. 4 with the other rights naturally affected
in the housing sphere, these form a more-complete set of criteria. SPH and
other social movement experiences reinforce these claims as our common human
rights framework. By their own contribution, the people’s agency has
established not only the moral principle of necessity, but also has contributed
substantively to developing the binding authority of law.
Again, according to the legal theory and logic of
implementation, housing conditions that fail to meet any one of these legally
established elements or congruent rights, consequently, may constitute a violation of the human right to adequate housing, and,
potentially, other human rights.
State obligations
All human rights carry corresponding
obligations on the State, the legal personality bearing the obligation by
virtue of its being a party to an international human rights treaty. The legal
literature, in particular the General Comments that the treaty-monitoring
bodies issue, establish three basic levels of obligation; therefore, what
the State is to do includes:
To respect the right: that is, to avoid violating the right
by its own actions or those of its agents;
To protect the right: that is, to ensure that persons are
protected from infringements on their rights by other parties;
To fulfill the right: that is, to take steps to ensure the constant improvement of
living conditions, while also promoting the right among its beneficiaries,
monitoring implementation and reporting on implementation to the
treaty-monitoring bodies.
All human rights also bring with them
obligations on the State to regulate practice in its jurisdiction or territory
of effective control in particular way. The most general criteria are the
“over-riding principles” for the implementation of a treaty. These principles,
all found in the first three articles of the human rights Covenants and
Conventions, address how a State is expected to implement its
obligations, including to respect, protect and fulfill the human right to
adequate housing. Therefore, the State must apply its obligations by practice
of:
§
Self-determination
§
Nondiscrimination
§
Gender
equality
§
Rule
of law
§
International
cooperation
§
Progressive
realization/nonretrogression
(Each of these elements and over-riding
principles of application are explained further in the HLRN Housing and Land
Rights Toolkit. See: http://toolkit.hlrn.org/index.html.)
The elements of the human right to
adequate housing are, at the same time, form core obligations of the State
party to respect, protect and fulfill, to which each of the over-riding
principles of application indicate imperative methods. General Comment No. 4 embodies
the most developed single legal source laying out obligations of the State,
each by its constituent element:
(a) Legal security of tenure…States parties should
consequently take immediate measures aimed at conferring legal security of
tenure upon those persons and households currently lacking such protection, in
genuine consultation with affected persons and groups;
(b) Availability of services, materials, facilities and
infrastructure…[States should ensure that a]ll beneficiaries of the right
to adequate housing…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;
(c) Affordability…Steps should be taken by States parties
to ensure that the percentage of housing-related costs is, in general,
commensurate with income levels. States parties should establish housing
subsidies for those unable to obtain affordable housing, as well as forms and
levels of housing finance which adequately reflect housing needs. In accordance
with the principle of affordability, tenants should be protected by appropriate
means against unreasonable rent levels or rent increases. In societies where natural
materials constitute the chief sources of building materials for housing, steps
should be taken by States parties to ensure the availability of such materials;
(d) Habitability…The Committee encourages States parties to
comprehensively apply the Health Principles of Housing prepared by WHO
which view housing as the environmental factor most frequently associated with
conditions for disease in epidemiological analyses; i.e., inadequate and
deficient housing and living conditions are invariably associated with higher
mortality and morbidity rates;
(e) Accessibility…Both housing law and policy should take
fully into account the special housing needs of these groups. Within many
States parties, increasing access to land by landless or impoverished segments
of the society should constitute a central policy goal. Discernible
governmental obligations need to be developed aiming to substantiate the right
of all to a secure place to live in peace and dignity, including access to land
as an entitlement;
(f) Location. [States parties have to ensure that] adequate
housing…be in a location [that] allows access to employment options,
health-care services, schools, child-care centres and other social facilities.
This is true both in large cities and in rural areas where the temporal and
financial costs of getting to and from the place of work can place excessive
demands upon the budgets of poor households. Similarly, housing should not be
built on polluted sites nor in immediate proximity to pollution sources that
threaten the right to health of the inhabitants;
(g) Cultural adequacy…Activities
geared toward development or modernization in the housing sphere should ensure
that the cultural dimensions of housing are not sacrificed, and that, inter
alia, modern technological facilities, as appropriate are also ensured.
State Obligations and SPH:
As
seen in the examples reviewed above, SPH movements seek the constant
improvement of living conditions consistent with many of the elements of
housing adequacy as defined in human rights law. In this respect, SPH movements
function consistently with the obligations of the State to respect, protect and
fulfill the human right to adequate housing, as well as other related (“congruent”)
rights considered as forming the “normative content” of HRAH. In light of the content
and purpose of the applicable human rights, the essential distinction between
SPH activities and State obligations lies primarily in the fact of SPH’s popular
initiative. Otherwise, the State’s HRAH obligations are both prior to, and
coterminous with the SPH movements.
A
reading of the relevant treaties clarifies what such obligations mean in
practice. Article 11(1) of ICESCR speaks of the right to an adequate standard
of living, and Article 2(1) of the Covenant obliges each State party to take
the necessary steps to the maximum of its available resources. A State,
therefore, must demonstrate willingness to use the maximum of its available
resources for the realization of the human right to adequate housing. If
resource constraints render it impossible for a State party to comply fully
with its covenanted obligations, it has the burden of justifying that every
effort has nevertheless been made to use all available resources at its
disposal in order to satisfy, as a matter of priority, the obligations outlined
above. The State also has to demonstrate that it has availed itself to the
mechanisms of international cooperation, as required under the ICESCR’s
Articles 1.2 and 2.1, as well as Article 22.
The
SPH process brings with it contributions of social capital and local creativity
in problems solving, including innovative techniques of planning construction
and materials. That does not mean that SPH replaces the State’s binding role as
facilitator. Nor does it mean that SPH releases the State from binding
obligations so that it can withdraw from service provision, as neoliberal
policies propose. On the
contrary, the State continues to bear the same obligations; however, the SPH
process can become a facilitating context in which to implement those
obligations. However, SPH can present opportunities for the State to implement
its treaty obligations more economically, enabling the SPH process by supporting
popular plans and objectives, and coordinating supportive functions and
facilities.
The
legally defined elements of the human right provide further specificity as to
what those supportive and coordinating functions would entail. For example, at
the level of obligations to respect HRAH, State institutions and officials
should abstain from actions that would obstruct the SPH process, in particular,
forced evictions. Any
limitations imposed must be "determined by law only insofar as this may be
compatible with the nature of these rights and solely for the purpose of
promoting the general welfare in a democratic society."
At
the level of protection, State obligations in the SPH process include the
provision of safeguards and assurances of freedom from unnecessary and
disproportionate use of force, public-service fee increases, monopoly control
of building materials and other impediments to the people’s process. The State
also bears the obligation to prosecute violators and ensure effective relief
and remedy for victims.
At
the fulfillment level of obligations, the State possesses unique capacities to
ensure access to public goods and services, verifying standards of habitability
in order to ensure public safety, ensure wide-area compatibility of
infrastructure networks, etc. Therefore, it also has the corresponding
obligation to apply these capacities, as well as conduct all levels of
obligation, in light of the six over-riding principles of self-determination,
nondiscrimination, gender equality, rule of law, international cooperation and
progressive realization/nonregressivity.
What constitutes a violation?
Just
as the obligations of the State assume three levels: to respect, protect and fulfill
the human right to adequate housing, the violations of the right also correspond
to these levels of an obligation as it relates to each of the elements of HRAH
and of the congruent rights. A violation could arise from the State’s failure
and/or refusal to apply the over-riding principles of self-determination,
nondiscrimination, gender equality, rule of law, international cooperation and progressive
realization/nonregressivity.
When the normative content of the human right to adequate housing
is applied to the obligations of States parties, a process is set in motion
that makes it possible to identify violations of the right. A violation could involve either an action or an
omission. It is not necessary to prove specific intent on the part of the State
or its representative in order to determine that violation has occurred. It is
sufficient to demonstrate that an action or omission has had a negative impact
on the enjoyment of the human right. Therefore, the staring point for
determining a violation is in convey the experience of the victim. Then it is
possible to identify the duty holder(s). However, in order to determine a
violation and identify a duty holder, it is important to distinguish which type
of violation (by action or omission) and, specifically, which right and/or
over-riding principle of application has been breached in the process.
In order to demonstrate compliance with their general and specific
obligations, States have to establish that they have taken the necessary and
feasible steps toward realizing the human right to adequate housing, including
respect, protection and fulfillment of the normative elements and congruent rights
identified above. In accordance with international law, a failure to act in
good faith to take such steps amounts to a violation of the right. It should be stressed that political processes,
domestic legislation, scarcity of resources, or agreements with other parties
do not absolve a State from its obligations to ensure the progressive
realization of economic, social and cultural rights.
In
determining which actions or omissions amount to a violation of the right to
adequate housing, it is important also to distinguish between the inability
from the unwillingness of a State party to comply with its obligations in
relation to the human right to adequate housing. This follows from Article
11(1), which speaks of the right to an adequate standard of living, as well as
from article 2(1) of the Covenant, which obliges each State party to take the
necessary steps to the maximum of its available resources. A State that is
unwilling to use the maximum of its available resources for the realization of
the human right to adequate housing is in violation of its obligations
under the Covenant. If resource constraints render it impossible for a State
party to comply fully with its relevant Covenant obligations; that is, a resource-poor
State still could be in violation if it cannot demonstrate that it has availed
itself to the mechanisms of international cooperation, as required under the
ICESCR’s Articles 1.2, 2.1 and 22.
Violations
of the right to adequate housing can occur through acts of commission,
the direct actions of States parties or other entities insufficiently regulated
by States. Violations include, for example, the adoption of retrogressive
measures incompatible with the obligations (outlined in General Comments Nos. 4
and 7), the formal repeal or suspension of legislation necessary for the
continued enjoyment of the right to adequate housing, or the adoption of
legislation or policies that are manifestly incompatible with pre-existing
domestic or international legal obligations to uphold the right to adequate
housing.
Violations
through acts of omission include the failure to take appropriate steps
toward the full realization of everyone's right to adequate housing, the
failure to have a national housing policy, and the failure to enforce relevant
laws, including the domestication and enforcement of international treaty
obligations to respect, protect and fulfill the right.
While it is not possible to specify a complete list of potential violations,
it may be helpful to provide some typical examples relating to the levels of
obligations and emanating from the General Comments and the jurisprudence of
the Covenants and Conventions:
1.
Violations of
the obligation to respect follow from the State party’s interference with the
right to adequate housing. This includes inter alia:
(i) “arbitrary or unlawful
interference” with one’s home;
(ii) discriminatory or unaffordable
increases in the price of housing and related public utilities;
(iii) pollution of the living
environment;
(iv) arbitrary, unlawful and punitive
conduct of forced eviction.
2.
Violations of
the obligation to protect follow from the failure of a State to take all
necessary measures to safeguard persons within their jurisdiction from
infringements of the right to adequate housing by third parties, including
individuals, groups, corporations and other entities as well as agents acting
under their authority. This includes inter alia:
(i) failure to enact or enforce laws
to prevent deterioration of housing and living conditions and/or protect
against undue eviction;
(ii) failure to regulate and control
housing and public service providers effectively to ensure adequate quality and
affordability of housing;
(iii) failure to protect housing from
harmful interference, damage and destruction;
(iv) denial of “effective remedy” for
persons whose housing rights have been violated.
3.
Violations of
the obligation to fulfill occur through the failure of States parties to take
all necessary steps to ensure the realization of the right to adequate
housing. Examples includes inter alia:
(i) failure to adopt or implement a
national housing policy designed to ensure the human right to adequate housing
for everyone;
(ii) insufficient expenditure or
misallocation of public resources that results in the nonenjoyment of the right
to adequate housing by individuals or groups, particularly the vulnerable or
marginalized;
(iii) the failure to monitor the
realization of the right to adequate housing at the national level, for example
by identifying right-to-housing indicators and benchmarks;
(iv) the failure to take measures to
reduce the inequitable distribution of housing and related services;
(v) failure to adopt mechanisms for
emergency housing relief in cases of natural or human-made disaster;
(vi) failure to ensure that the
minimum essential level of the right is enjoyed by everyone;
(vii) failure of a State to take into
account its international legal obligations regarding the right to housing when
entering into agreements with other States or with international organizations;
(viii) widespread homelessness within
the State;
(ix) denial of participation in
matters affecting living conditions;
(x) failure of the State to ensure
that housing and public service providers, including private parties, meet the
minimum standards of progressive realization and avoid declines in the quality,
quantity or affordability of housing-related materials, goods, infrastructure
and services;
(xi) failure to provide the greatest
possible security of tenure to occupiers of houses and land;
(xii) failure to enforce the
obligation upon the “competent authorities [to] enforce [effective] remedies
when granted.”
Violations and SPH:
In
the particular context of SPH, the potential violations of the constituent
human rights, including the human right to adequate housing, could involve
committing acts that impede the SPH process. Measures than prevent, deny or
repress the inhabitants’ rights to orderly association, participation and free
expression in the physical development process would violate the obligation to
respect the human right to adequate housing. Most forced evictions carried out
to obstruct the SPH process very likely would constitute a gross violation of
inhabitants’ rights and follow a series of breach of State obligations. Some
forms of SPH are actually responses to prior breaches of State obligations,
such as a government’s failure to regulate the housing market to ensure the
availability of needed low-cost housing, or neglecting public investment in
rural areas such that compels migration in search of survival and development. It
is not possible to provide an exhaustive inventory of possible actions or
omissions that violate the human rights to housing and, coincidentally, impede
SPH. Nonetheless, the framework of the human right to adequate housing brings
some illustrative scenarios to mind.
The State’s actions or omissions could breach the
obligation to respect the human right to adequate housing by actions or
omissions that impede SPH processes by:
§
failing to enforce
laws to prevent deterioration of housing and living conditions and/or protect
against undue eviction;
§
not requiring that housing
and public service providers effectively ensure adequate quality and affordable
housing;
§
omitting to ensure
legally secure tenure for inhabitants of socially produced housing;
§
the active
prevention of self-determination, the practice of discrimination; and/or
§
denying “effective
remedy” for persons whose housing rights have been violated.
Likely scenarios in which State actions or omissions
cause it to fail at meeting its minimum obligations would include:
§
failure to protect socially
produced housing from harmful interference, damage and destruction; and/or
§
inordinate delays
in enacting legislation needed to domesticate HRAH in the domestic legal
system.
Official actions in the process of SPH could
constitute violations of State obligations under treaty to fulfill the
human right to adequate housing if those actions arise from:
§
denial of
participation in matters affecting living conditions;
§
promotion of global
policies that seek to withhold adequate and affordable access to housing and public
services in any country; or
§
the reduction of public
resources dedicated to supporting SPH such that leads to a decline in living
conditions.
Official omissions in the process of SPH could
constitute violations of State obligations under treaty “to fulfill” the human
right to adequate housing if those omissions involved an absence of an adequate
housing policy that enables SPH, including:
§
nonimplementation of
policies, legal standards or programs intended to combat discrimination or
enable self-determination;
§
failure to enforce minimum
standards of quality and access to building materials and public services for
SPH participants;
§
official inaction
in the face of needs and opportunities to ensure legally secure tenure for
occupants of housing and land who are vulnerable to dispossession.
Strategic Considerations:
Although the practice of SPH and some measures to
respect, protect and fulfill HRAH are collinear, coterminous and fully coincidental,
some distinctions are important for strategic consideration. It is certain that
the core of both the human right and SPH is common: the human drive to “gain
and sustain a secure place and community in which to live in peace and
dignity.”
However, heretofore divergent processes and tactical approaches relating to SPH
and human rights-based initiatives have revealed an array of choices to be made.
These characteristics reflect the predominantly action-oriented approach of
SPH, as distinct from the predominantly verbally argumentative approach of
human rights activism. Just as familiarity breeds contempt, as the saying goes,
classical approaches that emphasize physical upgrading as distinct from housing
rights tend to subordinate the natural complementarity of both.
|
Social movements as SPH
|
tactical
action (“quiet encroachment” or
“contentious events”), having
popular authority
|
|
Human rights (HRAH)
|
philosophical, conceptual,
comparative, having legal authority
|
Apart
from the putative distinctions in tactical approach and style, a view to the
substantive values and the principal goals of the both approaches have revealed
an even greater number of commonalities of purpose. For example, both SPH
processes and human rights law assert collective claims and group rights to
adequate housing and development. Both are the product of historical processes
that require also a historic understanding as a matter of strategy. SPH and
human rights promotion benefit from comparative analysis, particularly in
devising ways to ensure that authorities comply with claims. Both HRAH
advocates and SPH protagonists serve the same community of beneficiaries by
posing practical solutions to structural problems. Therefore, it is natural
that the continuing experience with SPH and development of HRAH norms evolve
into a convergence of concepts, tools, techniques and actors.
|
Some common features of SPH and HRAH
|
|
Involve collective claims and claimants
|
|
Require historical understanding
|
|
Are enhanced by comparative analysis for effective
action/implementation
|
|
Ultimately direct claims at local and central authorities (duty
holders)
|
|
Require a pool of diverse and complementary human resources, skills
and functions
|
|
The beneficiaries are the same
|
|
Pose practical solutions
|
|
Undergo constant development, including by convergence
|
The
literature on social movements—whether engaged in SPH or otherwise—refers to actions
and tensions with the authorities as “contentious politics”
or “contentions events.” Also common to the process of SPH are the avoidance
strategies and discrete actions described as “quiet encroachment.” Especially
in the latter category, as already noted, it is not axiomatic that SPH
movements and actors advance “rights” claims, unless and until forced by
external opportunities or threats.
The
selective use of human rights and housing rights language follows strategic and
tactical considerations, as in the examples arising from HIC’s experience. The
protagonists of Urbanización
Nueva Democracia (Las Farias, Maracaibo, Zulia, Venezuela), described defending rights and obligations as a
“tool/instrument” of struggle. The
Regional Council of Unrecognized Villages in Israel/Palestine case demonstrated
how a social movement exposed a
pattern of discrimination and its material consequences through the language of
claims for equal treatment and rights of citizenship. These values became the
moral basis that has mobilized local and international solidarity with positive
effect.
The Dhana Valley SPH experience, in Jordan, set out a program to realize a bundle of rights that actually enables the protagonists and
helps the wider public to understand the content of the human right to
development.
However, the Sons of Dhana Valley identified low awareness of rights as an early
impediment to SPH objectives. In the course of the experience, however, the
local organizers managed to translate this shortcoming into an opportunity and,
eventually, “awareness of rights” became a deliberate SPH outcome and asset.
In that particular case, given its rural and
historical context, the SPH movement tested and proved local land-use custom-cum-law
as a guarantee of the respect, protection and fulfilment of rights with local
specificity. Conversely, the Women’s
Advancement Trust (Dar es Salaam and Dodoma, Tanzania) sought to implement the
right to gender equality as well as women’s specific rights to land and housing
as a universal rights and subject of international treaty obligation, despite
local law and custom that permitted the denial of those same rights.
SPH
experiences also find human rights language and awareness as means of achieving
the great intangible value of empowerment, a moral quality essential to
self-motivation. Planact, in South Africa, thus reported that it was “encouraged
that the community has ultimately taken charge of the process and continues to
realise their housing rights.”
SPH
experiences also provide examples of human rights claims as a tactic that, if
not grounded in actual law, could backfire. The participants in the “Movimiento
de Ocupantes y Inquilinos” (Buenos Aires) and Cooperativa de Vivienda “Unión de
Palo Alto” (Mexico City) made rhetorical use of claims to a “right to the city,”
but apparently did not articulate what was meant by that noncodified claim.
If challenged in some contentious event at the time, the claim that was central
to the movement’s rallying cry could quickly unravel. However, the framework of
existing rights, especially the human right to adequate housing and Argentina’s corresponding treaty obligations remain a potential grounding for such claims,
if properly put to the task.
However, such a confrontation could lead to a loss of forensic ground in the
public theater and require a tactical adjustment. In that hypothetical
scenario, the lesson of needed human rights capacity building becomes clear.
Conclusion:
About success
SPH movement experience, values and language form the
organic base of the language of legal specificity required to guide duty
holders (States) in implementing their obligations to respect, protect and
fulfil the human right to adequate housing. The convergence of the HRAH
approach and SPH activism is (1) organic, in that they share the same values;
(2) historic, because they share a similar trajectory over time and comparative
analysis; (3) strategic, in that they offer reciprocal and tactical advantages
from which to draw at certain opportunities; and (4) a recipe for success
available to States and policy makers seeking to resolve housing and national
development problems, while also enhancing the legitimacy of their governance.
Admittedly, much of the critical human rights and SPH
language refers to the violations, shortcomings and ultimate failures of
authority institutions and officials. However, imbedded in the message also are
the guidelines for certain success, and success in a pursuit that is possible
only through consultation with the people who are the very subject of the policies,
programs, projects, institutions and budgets concerned. That consultation among
the various concerned parties depends on a common language that is an objective
of the global SPH project of HIC.
One urgent and challenging opportunity to achieve a
common language is that posed by the ideological trend of neoliberal economics
and economic globalization. Absent a common language incorporating the human
rights values and obligations, SPH experiences nowadays may find local
communities trapped by their own argument. They may insist on their “right” to
autonomous development, apart from the failed institutions of State. Given the
neoliberal tendency of States to withdraw from their covenanted
responsibilities in the sphere of public services, governments may “call the
bluff” of SPH movements and abandon them to their own devices, without
providing the requisite coordination and services that ensure effective SPH.
Applying the framework of HRAH and corresponding State obligations, however,
counterposes the dismissive and short-sighted neoliberal impulse of the globalized
State. Reasserting the prior obligations of States and governments to respect,
promote and fulfil HRAH in the SPH context emerges as the common task of social
movements and SPH movements, in particular.
These State obligations also serve public officials
and institutions seeking ways to maintain a measure of local legitimacy with
the national society and to restore a
degree of State sovereignty required to develop local solutions. These official
objectives are particularly urgent, while the centrifugal force of globalization increasingly exports
sovereignty to so many external parties. The State’s supportive, official
engagement with SPH contributes to restoring practical partnership between
authorities and the people. The experiences of Tablita Market, in Cairo, involved an initial confrontation with initially resistant planners from the Central
Cairo Authority, which ultimately recognized the local inhabitants’ alternative
design and their right to remain. An alternative
development plan of Sakkardara, in Nagpur, India, has become a model for others to emulate
across the Asian continent. Both cases give testimony to the potential of
popular alternative visions producing a basis for negotiation and official
support for SPH movements. They have exemplified the kind of SPH formula that
can result in cooperation between communities and local authorities, and lead
to success for both sides.
Therefore, the convergence of HRAH and SPH is not
merely conceptual and abstract, but ultimately timely, practical and reciprocal
to the ultimately benefit of people who are in most need. This is the essence
of harmonizing SPH and HRAH movements. Potentially, this exercise will
contribute to the capacity, argumentation and practical solidarity of all
concerned, including State officials, to succeed in our collective tasks of
improving living conditions and advancing human civilization. Another world is,
therefore, possible
Annex
HRAH Questions for SPH Cases
The following questions form a line of inquiry in SPH
cases in which those monitors documenting the experience take full account of
the legal framework and HRAH considerations for comparative and strategic
purposes.
Using
the HRAH framework
11. Did any of the actors in this case explicitly
invoke any human right, including their HRAH? Explain.
12. On the basis of Constitutional provisions?
Explain.
13. On the basis of local legislation? Explain.
14. On the basis of international treaty law?
Explain.
15. What legal procedures were taken and which legal
remedies were sought?
What was the outcome?
17.
Did any of the actors in this case use international or regional mechanisms to
seek implementation of rights?
What was the outcome?
