(back)ENFORCEMENT
AND MONITORING OF THE RIGHT TO HOUSING
In
its Position paper on Housing Rights, the United Nations Settlements Programme
(HABITAT) highlights a few aspects that are important in the realization
of housing rights. It
is e.g. noted that equality
of treatment and non-discrimination for
all is a fundamental element of the realization of housing rights. Indeed very
often the access to housing is not blocked because of a shortage of housing, but
rather because of discriminatory attitudes of those in charge of allocating
houses. At the World Conference against Racism, Racial Discrimination,
Xenophobia and Other Related Intolerances held in Durban, South Africa in
September 2001, issues of discrimination in access to housing and related
services came to the fore. The Declaration recognizes the existence of
discrimination in access to housing, along with other economic, social and
cultural rights (para. 33) and recommends special measures for victims,
including appropriate representation in housing (para.108).
Another
important aspect of the realization of housing rights is the existence of
legal and other appropriate remedies in cases of violations and/or
non-fulfilment of housing rights.[4]
One of the most common myths
propagated about the right to housing and other economic and social rights, is
indeed that courts cannot protect these rights. This idea is usually based on a
comparison with civil and political rights. Proponents of this myth believe that
unlike civil and political rights, economic, social and cultural rights are too
vague and too cost-intensive to be litigated, and can not be implemented on the
basis of policy, but not on law and justice.
But the
reality is different. Not only is the right to housing one of the most developed
economic, social and cultural rights in terms of content, but a number of the
constituent elements of the right to housing are adjudicated in courts of law,
tribunals and other legal and quasi-legal forums on a daily basis. For example,
in many countries Landlord-Tenant relations are regulated by legislation and
enforced in courts or tribunals; discrimination with respect to accommodation is
prohibited in national human rights legislation in countries across the world
and land claims are commonly brought before adjudicators. Moreover, almost all
countries have passed legislation on various aspects of housing, much of which
can be brought before the courts.[5]
(The
Centre on Housing Rights and Evictions)
It
is needless to say that even if there are these legal provisions, undocumented
migrants are reluctant to have their rights enforced in a court out of fear of
being deported.
UN
Monitoring of the Right to Housing[6]
In
June 1996 in Istanbul (Turkey), the UN organised the second major conference on
human settlements, commonly called Habitat II. The heads of state and
government and the official delegations of countries, representing 175 States,
endorsed the universal goals of ensuring adequate shelter for all and making
human settlements safer, healthier and more liveable, equitable, sustainable and
productive. The conference focused on two major themes: adequate shelter for all
and sustainable human settlement development in an urbanising world. The
conference adopted the Habitat Agenda, which is a comprehensive policy document
with principles and recommendations on the above two themes.
The Human
Settlements Programme, commonly known as UN-Habitat, is the UN body responsible
for monitoring and promoting the implementation of the Habitat Agenda.
In order to
facilitate implementation, UN-Habitat co-ordinates two global campaigns: the
global campaign for secure tenure and the global campaign on urban governance.
The global campaign for secure tenure is designed to
take forward the commitment of governments to providing adequate shelter for
all, one of the two main themes of the Habitat Agenda. The campaign identifies
the provision of secure tenure as essential for a sustainable shelter strategy,
and as a vital element in the promotion of housing rights.
It
should be noted that all member states of the EU have adopted the Habitat Agenda
of the UN.
In
2003 the Human Settlements Program published a report called “The Challenge of
Slums”[7].
The report proposes an operational definition of slums and, on this basis,
provides the first global estimates of the numbers of urban slum dwellers.
As to the operational definition, a slum is defined as an area that
combines, to various extents the following characteristics:
inadequate
access to safe water
inadequate
access to sanitation and other infrastructure
poor
structural quality of housing (location of house, compliance with local
building codes,…)
overcrowding
(more than two persons per room/ minimum 5 sq meters per person)
insecure
residential status (i.a. existence of an enforceable agreement or any
document as a proof of a tenure arrangement)
Among
the Case studies are two European cities: Barcelona (Spain), and Naples (Italy).
Council
of Europe Monitoring[8]
For
an international organization like the Council of Europe, strongly committed to
the protection of human rights, the right to housing is of fundamental
importance. The Council of Europe’s European Social Charter (Art. 31) is
mentioned above. The Charter’s
supervisory machinery plays a decisive role in the implementation of the rights.
It occurs through two different types of procedures. The first is the
examination of national reports, which allows a regular and systematic legal
appraisal of the observance of States’ undertakings. Every year the states
parties submit a report indicating how they implement the Charter in law and in
practice. The European Committee of Social Rights
examines
the reports and decides whether or not the situations in the countries concerned
are in conformity with the Charter. Its decisions, known as “conclusions”,
are published every year. The second mechanism is a collective complaints
procedure.
The
Conclusions of 2003
examined
the specific right to housing and interpreted Article 31 defining fundamental
notions, such as adequate housing, homeless persons, forced eviction and housing
affordability. It has also set what action States are required to carry out to
ensure the effectiveness of the
right
to housing: these include among others the control of adequacy, construction
policy, social housing, housing benefits, judicial remedies, and urgency housing
for homeless.
“If
a state takes no action on a Committee decision to the effect that it does not
comply with the Charter, the Committee of Ministers addresses a recommendation
to that state, asking it to change the situation in law or in practice. The
Committee of Ministers’ work is prepared by a Governmental Committee
comprising representatives of the governments of the States Parties to the
Charter, assisted by observers representing European employers’ organisations
and trade unions”.
The
Report on Access to Social Rights in Europe, officially launched at the Malta
Conference on Access to Social Rights in November 2002, analyses the obstacles
impeding access to different social rights, including the access to housing. The
Report gives examples of how obstacles are being overcome, examines integrated
measures implemented in the member states of the Council of Europe and
identifies the principles on which measures to improve access to social rights
should be based. Finally, the report develops cross-sectoral policy guidelines
aimed at facilitating access to social rights.
The
Group of Specialists on Access to Housing (CS-LO) of the Council of Europe
adopted in 2001 Policy Guidelines on Access to Housing for Vulnerable Categories
of People (CS-LO (2001) 25). These recommendations include advice on how to
develop a comprehensive legal framework on access to housing for vulnerable
categories of persons, taking account of market constraints and opportunities,
and respecting international standards, to support national housing policies.
Recently the DG Social Cohesion commissioned a report on obstacles to effective access to minimum rights for undocumented migrants. Due attention will be paid to the right to housing. The report is due for the end of 2004.[9]
(4)
Position
paper on Housing Rights, UN HABITAT http://www.unhabitat.org/programmes/housingpolicy/hpu/housing.PDF
[5] http://www.cohre.org/hrbody6.htm
[6] http://www.feantsa.org/keydocs/overview_eu1.htm
[7] UN Human Settlement Programme (UN-HABITAT), The Challenge of Slums, Global Report on Human Settlements 2003
[8] BATTAINI-DRAGONI, G. and DOMINIONI, S., The right to housing: A cornerstone of the Council of Europe’s social cohesion strategy, 10.09.2003
[9]
PICUM
is member of the Ad Hoc working Group on Irregular Migrants that has been
advising the consultant.