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Article by Henrietta Zeffert | Published December 6, 2011
This article is part of our December theme, which focuses on one of the least appreciated but most fundamental aspects of well-being: housing. Read our Editorial for more on this theme.
The idea of “home” hosts many metaphors. Home is our “haven”, “sanctuary”, “nest”, “refuge” and “escape”. Home is our “domain”, “habitat”, “kingdom” and “abode”. At its most basic, home is “shelter” and “dwelling” – metaphors that express our ancient instinct to seek protection from the elements, from each other, and from ourselves.
Flowing through this rich language of home is a unifying theme. Home means more than a roof over our heads. The metaphors for home tell us how, in the windows and mirrors of our homes, we see reflected the experiences that chart the distinct stages in our lives. For every home we’ve lived in, we have a portable set of memories. The metaphors illustrate how, in the very bricks and mortar that found our homes, we also found ourselves.
The right to housing in international human rights law is unique in giving a central place to the idea of home.
Our homes are vital to developing our own personality, nourishing our families, and engendering civic values of dignity, democracy and equality. Despite this, throughout the world there are significant problems of inadequate housing and homelessness – in developing societies and the most economically developed societies alike. There are over one billion inadequately housed people and 100 million homeless people worldwide. However, the international community, through its support for international human rights law, continues to reaffirm the importance of full respect for housing.
The right to housing in international human rights law is unique in giving a central place to the idea of home. Other rights may touch on housing. Some do so more squarely than others – the right to property and the right to privacy are good examples. But the right to housing is important because it is the only right that articulates housing as being valuable enough in itself to elevate it to the status of a human right. What the right to housing does is place at the forefront of our minds the role of housing in our lives. The right reinforces the meaning and centrality of housing to our ability not only to function, but to flourish over the course of our lives.
The right to housing is indispensable to the full enjoyment of other human rights.
The right to housing is inextricably linked to the concept of dignity and the principles of equality and non-discrimination. Human rights are said to derive from the inherent dignity of the human person and equality between all persons. The right to housing must be interpreted to take this into consideration, ensuring that all people, irrespective of income or access to economic resources, can enjoy the right.
The right to housing cannot be viewed in isolation from other human rights, such as the right to freedom of association (for example, a tenants union), the right to participation in public decision-making (without a fixed address, it is almost impossible to vote), and the right to education (a stable home and adequate nourishment are key to children’s school attendance). The right to housing is indispensable to the full enjoyment of other human rights.
In international human rights law, the right is formulated as a right to “adequate” housing or a right of “access” to housing. The wording is important. It is not just a right to housing, but to “adequate” housing. The Commission on Human Settlements and the Global Strategy for Shelter has said that
Adequate shelter means … adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost.
The right to housing in international law clearly expresses an entitlement to housing that is adequate, as defined in relation to particular conditions. However, the right is as much an entitlement as it is a liberty from unfairness and inequities in housing. This means that the right to housing must protect against, for example, gender discrimination in ownership laws, inaccessible facilities in public housing for disabled people, arbitrary interference with privacy and family life, and lending policies that exclude young people from the housing market. In this sense, the right to housing is sometimes said to carry positive and negative dimensions.
The right to housing is found in a wide variety of international human rights declarations, treaties and standards. The Universal Declaration on Human Rights – the centrepiece of the international human rights framework – affirms that
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 (article 25).
It is significant that the drafters of the Declaration believed in protecting housing in the foundation document of the modern international human rights movement. The drafters confirmed that housing is essential to promoting human rights’ guiding aspiration – human freedom.
The right to housing is enshrined in other legally binding international law documents. The International Covenant on Economic, Social and Cultural Rights (ICESCR) is considered to be the central instrument protecting the right to housing. The ICESCR recognises
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 (article 11).
The ICESCR, alongside the International Covenant on Civil and Political Rights (ICCPR) are the core human rights documents. Both provide general protection for the right to housing. The ICCPR guarantees that
no one shall be subjected to interference with their privacy, family, home or correspondence (article 17).
The inclusion of the right to housing within both core documents again affirms the central position of housing in the stable of international human rights. It also illustrates that the right to housing has civil, political, economic, social and cultural aspects – defying the traditional dichotomy between systems of rights.
Other treaties address the right to housing in different ways and protect the right in relation to specific groups. The Convention on the Rights of the Child recognises
the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development (article 27).
The Convention on the Elimination of All Forms of Discrimination against Women ensures the right of rural women to
enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications (article 14).
the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing (article 28).
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 (article 5).
migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to access to housing, including social housing schemes, and protection against exploitation in respect of rents (article 43).
The Convention on the Status of Refugees, in relation to housing, accords to refugees
treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances (article 21).
The right to housing is also protected in regional, national and local laws and standards. The revised European Social Charter, the European Convention on the Legal Status of Migrant Workers and the African Charter on the Rights and Welfare of the Child explicitly refer to the right to housing. While other major regional human rights instruments such as the European Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the American Convention on Human Rights do not enshrine a specific right to housing, its protection has been derived from the enjoyment of other human rights, such as rights to property, protection of family, and peaceful enjoyment of possessions.
The potential to derive the right to housing from other human rights echoes the recognition in the Vienna Declaration that
all human rights are universal, indivisible and interdependent and interrelated.
The African Commission on Human and Peoples’ Rights has found that while the right to housing is not explicitly recognised in the African Charter, it can be inferred from other rights:
the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health and family life are adversely affected.
In India, the High Court has described the right to housing as a fundamental aspect of the right to life, which is enshrined in the Indian Constitution. In the case of Olga Tellis, the High Court said that
the right to life … includes the right to livelihood and since [the plaintiffs] will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional.
In the United Kingdom, the House of Lords in the case of Limbuela said that exposing people to rough sleeping is a breach of the prohibition cruel and inhuman or degrading treatment under the European Convention on Human Rights.
Deriving a right to housing from a bricolage of other rights does not amount to unauthorised lawmaking. Rather, it can be seen as a process of discovering and applying rights that people already have.
However, arguably the express protection of a right to housing is preferable to derived or implied rights protection. An express right to housing is a statement of unequivocal support for protecting our interest in housing and the values it represents. An express right to housing is also more powerful than goals, policies and commitments on housing. These non-rights lack meaning and enforceability. Rights, as opposed to non-rights, generally have a level of specificity that motivates them being carried through. Moreover, rights also ground litigation if they are not carried through.
The South African Bill of Rights enshrines an express, positive right of access to adequate housing in section 26. The right must be realised progressively through the reasonable legislative and other measures. In Grootboom, the seminal housing rights case, the South African Constitutional Court held that
human dignity, freedom and equality, the foundational values of our society, are denied those who have no … shelter.
Section 26 also protects against unlawful eviction. The Constitutional Court in Modderklip faced the task of adjudicating the conflicting rights of a private landowner’s property rights and of 40,000 people who had settled on its land. The Court held that the state had failed to provide effective relief to the landowner and that evicting the settlers would breach the state’s duty of restraint and non-interference.
In addition to the rights found in international treaties and as recognised by regional courts, there are also guidelines and principles which set out what the right to housing actually entails in practice and how the right can be implemented. The Committee on Economic, Social and Cultural Rights, which is charged with monitoring state parties’ implementation of the ICESCR, produces authoritative “general comments” on ICESCR rights. General Comment 4 is devoted to the right to housing.
The Committee says that
the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity.
The Committee gives us some clues as to the actual content and scope of the right to housing, and how the right can be realised in practice. First, the Committee tells us that is a right to live somewhere in security, peace and dignity. Next, the Committee sets out a number of factors that can be taken into account in determining whether “adequate” housing has been met. These include:
Legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location and cultural adequacy.
Of course, adequacy will be determined in part by social, economic, cultural, climatic, ecological and other conditions, but it is useful to have these factors as a guide. For more detail on each of these factors, see General Comment 4 on the website of the Office of the Human Commissioner for Human Rights.
This article has looked at the “home” in human rights. The idea of “home” knits together our personal stories and sentiments. “Home”, if we are lucky enough to enjoy a good life, can evoke feelings of belonging, familiarity and warmth. But since “home” means something different to each of us, it seems impossible to capture the idea in a single human right. This may be one explanation for why we find a right to “housing”, rather than a right to a “home”. Similarly, a right to a “dwelling” or a right to “shelter” would not work as these words do not adequately capture the values we see in housing. They are too dark and primitive. They lack the aspirational quality of a human right: we should be aiming to do more than merely “dwell” overnight or “shelter” during a storm. Both words are also too closely aligned to the idea of housing as a bundle of goods because they remind us of materials (wood, concrete, straw) and structures (doors, drains, toilets).
By contrast, the word “housing” expresses set of ideas and conditions which are at the heart of how we live. And a right to “housing” encompasses the social provision of housing for all people. The right embodies, just as human rights strives to, a universal aspiration that everyone can relate to.
Finally, it is important to emphasise that the right to housing is not an end in itself. The right to housing is a means to achieving a goal. That goal might be to increase participation in society, to reduce poverty, or to develop personality. Our focus should remain steadily on the goal, rather than on the right itself.