COHRE Training Manual 2005 by The Centre on Housing Rights and Evictions (COHRE)

Housing Rights for Everyone Everywhere COHRE Training Manual on International Law and the Human Right to Adequate Housing

Centre on Housing Rights and Evictions (COHRE)

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Inside front cover

COHRE’S AIMS AND OBJECTIVES Hundreds of millions of people throughout the world live in health-threatening and even life-threatening conditions in slums, shacks and polluted and often dangerous communities. None of these people enjoy housing rights. In addition, millions of people are violently forced from their homes every year, generally without legal recourse, relocation or compensation. The Centre on Housing Rights and Evictions (COHRE) works on behalf of such groups – people who are deprived of their rights – to create a world where everyone, everywhere can enjoy the right to adequate housing and the right not to be evicted, as guaranteed under international human rights law. Established in 1994, COHRE is an independent, international, non-governmental human rights organisation that is committed to ensuring the full enjoyment of housing rights for everyone, everywhere. COHRE pursues this objective through an integrated approach to human rights that incorporates the full spectrum of civil, cultural, economic, political and social rights. COHRE consistently and comprehensively applies international human rights law to housing and living conditions throughout the world. In this way it aims to redress violations of housing rights, to promote compliance with international standards, and to prevent future infringements of human rights. COHRE is committed to local and national capacity-building in the area of economic, social and cultural (ESC) rights. It places particular emphasis on securing respect for the housing rights of groups that have traditionally been disadvantaged, including women, children, racial and ethnic or other minorities. COHRE engages in a wide variety of activities supporting housing rights. It actively monitors and campaigns against forced evictions wherever they occur or are planned. COHRE is committed to professional and direct partnerships with a continually expanding network of non-governmental, community-based and grassroots organisations in all regions of the world. COHRE seeks practical solutions to the problems of homelessness, inadequate housing and living conditions, and related violations of the right to housing. It does this in four ways: (1) by providing legal advice and assistance; (2) by preparing and widely distributing books, reports, manuals and multi-media productions, all designed to increase popular awareness of relevant human rights law; (3) by providing in-depth training programmes on advocacy, enforcing and implementing housing rights, and standard-setting work at the United Nations and other bodies concerned with human rights; Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 3

and (4) by working directly with national and local organisations to raise awareness of international housing rights standards and how these can be constructively utilised at local and national levels.

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The Centre on Housing Rights and Evictions is registered in the Netherlands as a not-for-profit organisation

Copies are available from: COHRE INTERNATIONAL SECRETARIAT 83 Rue de Montbrillant 1202 Geneva, Switzerland tel: +41.22.734.1028 fax: +41.22.733.8336 e-mail: cohre@cohre.org website: www.cohre.org

Graphic design: Ontwerpburo Suggestie en illusie, Utrecht, www.illusie.nl Print: Primavera, Amsterdam, The Netherlands

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CONTENTS COHRE’S AIMS AND OBJECTIVES .............................................................. 3 CONTENTS OF CD ROM .............................................................................. 11 ACKNOWLEDGEMENTS ............................................................................. 13 ABOUT COHRE’S TRAINING PROGRAMMES ........................................... 14 ABOUT THIS RESOURCE MANUAL ........................................................... 15 FRAMING THE DISCUSSION ABOUT HOUSING RIGHTS ......................... 16 Why take a rights-based approach to housing issues? ........................... 17 Defining housing rights ............................................................................... 19 Some Common Myths about Housing Rights ........................................... 24 UNDERSTANDING ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN GENERAL ..................................................................................................... 28 An Overview of Economic, Social and Cultural Rights ............................ 28 A guide to key provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) ......................................................... 31 BENEFICIARIES OF HOUSING RIGHTS ..................................................... 35 Specific Needs of Affected or Vulnerable Populations ............................ 35 Women and Housing Rights ....................................................................... 36 Children and Housing Rights...................................................................... 42 Disabled Persons and Housing Rights ...................................................... 44 The Elderly and Housing Rights ................................................................. 45 The Housing Rights of the Poor ................................................................. 46 Occupied Populations and Housing Rights .............................................. 47 Refugees, Asylum Seekers and Internally Displaced Persons and Housing Rights ............................................................................................ 49

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HOUSING RIGHTS UNDER INTERNATIONAL AND REGIONAL LAW ..... 52 International Legal Resources on Housing Rights ................................... 52 Additional International Instruments ......................................................... 58 Regional Legal Sources on Housing Rights.............................................. 60 International Humanitarian Law Standards ............................................... 65 THE OBLIGATIONS OF THE STATE ........................................................... 67 The State’s obligations in relation to ESC rights in general .................... 67 Respect, protect and fulfil ........................................................................... 67 The Obligation To Respect The Right To Adequate Housing .................. 70 The Obligation To Protect The Right To Adequate Housing……………….…...68 The Obligation to Fulfil Housing Rights .................................................... 72 Obligations of Non-State Actors................................................................. 73 Areas for action towards the full and progressive realization of housing rights ............................................................................................................. 75 NATIONAL HOUSING RIGHTS LAW ........................................................... 77 Constitutional Recognition of Housing Rights ......................................... 77 National Laws and Housing Rights ............................................................ 78 THE JUSTICIABILITY OF HOUSING RIGHTS ........................................... 822 Introduction: Rights to a Remedy .............................................................. 82 What is Justiciability? ................................................................................. 82 What are Remedies?.................................................................................... 85 Do Governments Have to Provide Remedies? .......................................... 86 Applying the Covenant in National Courts ................................................ 86 What are Some Examples of Cases? ......................................................... 87 VIOLATIONS OF HOUSING RIGHTS ......................................................... 944 Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 7

Violations of ESC Rights in General ........................................................ 944 Acts Constituting Violations of the Right to Adequate Housing ........... 977 Violators of Housing Rights: An Example of a Non State Actor.......... 999 Housing Rights Remedies, Compensation and Restitution ................. 1022 FORCED EVICTIONS ............................................................................... 1033 Understanding Forced Eviction as a Violation of Housing Rights ...... 1033 Main Causes of Forced Evictions ........................................................... 1055 Government Obligations to Prevent Forced Evictions ......................... 1066 Legal sources on Forced Evictions........................................................ 1077 Strategies to Prevent Forced Evictions ................................................. 1122 How to Use International Procedures to Prevent Forced Evictions .... 1133 NON-JUDICIAL STRATEGIES TO PROMOTE HOUSING RIGHTS ........ 1144 Making a positive difference: the role of NGOs .................................... 1144 The state reporting process .................................................................... 1166 Monitoring housing rights..................................................................... 12020 Collecting and documenting information .............................................. 1211 Using education to protect and promote housing rights ..................... 1255 USING THE UN COMMITTEE FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS ..................................................................................................... 1277 What does the Committee do? ............................................................... 1277 Determining Whether To Use The Committee ....................................... 1288 When is the best time to approach the Committee?........................... 13030 Committee procedures relating to NGOs .............................................. 1322 What is your government's role in the Committee process? ............... 1344 Preparing for your participation in the Committee ............................... 1375 What to Expect: How Does the Committee Make Decisions? ............ 14040 Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 8

Country missions as an advocacy tool.................................................. 1422 Follow-up Domestic Activities ................................................................ 1422 WORKSHEETS ......................................................................................... 1444 Worksheet 1: Housing Rights Squares .................................................. 1444 Worksheet 2: What do we mean when we say adequate housing?..... 1455 Worksheet 3: Questionnaire on housing rights. ................................... 1477 Worksheet 4 : Housing Rights In My Country ...................................... 1499 Worksheet 5 : Case study on Rights-based intervention ..................... 1511 Worksheet 6 : The Rights of the Child from Declaration to Convention ................................................................................................................... 1533 Worksheet 7 : Some Questions about ESC Rights ............................... 1555 Worksheet 8 : Special Beneficiaries of Housing Rights ....................... 1566 Worksheet 9 : Violations of Housing Rights.......................................... 1577 Worksheet 10 : Can forced evictions be justified? ............................... 1588 Worksheet 11 : The Grootboom Case – The Right to Shelter ............ 16060 Worksheet 12 : A Pending Mass Forced Eviction - The Case of Beedieville, India ...................................................................................... 1622 Worksheet 13 : Developing a plan for Progressive Realisation of a State housing rights obligation. ....................................................................... 1644 Worksheet 14 : Potential Objectives of Monitoring .............................. 1677 Worksheet 15 : Conducting a fact-finding mission............................... 1688 Worksheet 16 : Presentation to the Board of Directors ...................... 17070 Worksheet 17 : Planning for using the UN Committee for Economic, Social and Cultural Rights ...................................................................... 1711 Worksheet 18 : Brazil- who owns the land? ......................................... 1722 Worksheet 19: Case study activities ...................................................... 1733 APPENDICES............................................................................................ 1744 Universal Declaration of Human Rights…………………….………………174 Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 9

International Covenant on Economic, Social and Cultural Rights ........ 178 General Comment 4: The right to adequate housing............................ 1899 General Comment 7 : Forced Evictions ................................................. 1955 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights .............................................. 2011 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997. ............................................... 2155 GLOSSARY OF HOUSING RIGHTS TERMS ........................................... 2244

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CONTENTS OF CD ROM Legal Documents  Universal Declaration of Human Rights  International Covenant on Economic, Social and Cultural Rights  General Comment 3 (The nature of States parties obligations (Art. 2, para. 1) of the Covenant), (Fifth session, 1990), UN doc. E/1991/23.  General Comment 4  General Comment 7 (Art.11(1) of the Covenant) Forced evictions (May 1997)  Maastricht Guidelines  Limburg Principles  United Nations Human Rights Fact Sheet No. 21 (1994) The Human Right to Adequate Housing, UN Centre for Human Rights, Geneva, including annex containing General Comment 4.  United Nations Human Rights Fact Sheet No. 25 (1996) Forced Evictions and Human Rights, UN Centre for Human Rights, Geneva.  Concluding Observations of the CESCR showing violations

Articles International Human Rights Internship Programme (1997) Ripple in Still Water. Reflections by activists on local and national-level work on Economic, Social and Cultural Rights International Human Rights Internship Programme: Washington, pg 9-17 “Introduction to International Human Rights” (1996) in International Human Rights (Newman and Weissbrodt, eds.), Anderson Publishing Co., chapter one, pp. 1-17. Martin Scheinin (1995) “Economic and Social Rights as Legal Rights” in Economic, Social and Cultural Rights: A Textbook (Eide, Krause and Rosas, eds.), Martinus Nijhoff Publishers, Turku, pp. 41-62. Matthew Craven (1995) The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Chapter 3: ‘State Obligations’), Clarendon Press Oxford, pp. 106-152. Leilani Farha (1999) “Women and Housing” in Women and International Human Rights Law, vol. 1, (Askin & Koenig, eds), Transnational Publishers, New York, pp. 483-532. Matthew Craven (1993) “The Domestic Application of the International Covenant on Economic, Social and Cultural Rights” in Netherlands International Law Review, vol. 40, pp. 367-404.

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Scott Leckie (1995) “The Justiciability of Housing Rights” in SIM Special No. 18 Proceedings of the Conference on an Optional Protocol to the Covenant on Economic, Social and Cultural Rights, Netherlands Institute for Human Rights, August 1995, Utrecht, pp. 35-77. Hoof, G.J.H. van (1984) “The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views” in The Right to Food (Alston and Tomasevski, eds.), Netherlands Institute of Human Rights, pp. 97-110. Kathryn English and Adam Stapleton (1995) The Human Rights Handbook: A Practical Guide to Monitoring Human Rights, Human Rights Centre, Essex, pp 35 - 71

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ACKNOWLEDGEMENTS This programme has been developed with the assistance of COHRE staff members working in programmes around the world, in particular, Scott Leckie, Clare Verbeek, Bret Thiele and Mayra Gรณmez. The programme incorporates parts of an earlier training programme developed by the Canadian Human Rights Foundation, whose contribution is gratefully acknowledged.

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ABOUT COHRE’S TRAINING PROGRAMMES In the past several years there has been a growing demand for training in international law, including on the right to adequate housing. Nongovernmental organisations (NGOs), community-based and grassroots organisations, government officials, university students, lawyers, scholars and other professionals have wanted to increase their understanding of how the right to adequate housing can be effectively promoted, monitored and enforced. COHRE has reached out to over 3,000 participants in different types of training programmes around the world since the year 2000. These training programmes are tailor-made to meet the specific needs of participants, in terms of both focus of content and duration of training. However, in general, the overarching objectives of all COHRE’s training programmes are the same: Training Programme Goal To build the capacity of participants to protect and promote the right to adequate housing, including the prevention or remedy of forced evictions. Course Objectives Participants in any COHRE course will: 1. Develop familiarity with the international standards for the protection and promotion of housing rights. 2. Explore the interrelatedness between housing rights violations and other human rights violations. 3. Develop expertise in various thematic areas related to housing rights, including women’s housing rights, forced eviction, and housing and property restitution. 4. Develop practical skills for monitoring violations and progressive realisation of housing rights. 5. Develop knowledge in mechanisms by which to enforce housing rights. For further information about COHRE Training Programmes, or to request assistance in organising or running programmes in your area, please contact COHRE at the address on the cover of this manual, or by e-mail: cohre@cohre.org.

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ABOUT THIS RESOURCE MANUAL This resource manual serves two central purposes:  It is designed for use in COHRE training programmes, and contains information, articles and activities for participants on these courses.  It provides you with a resource which you can continue to use in your housing rights work after the course.

The resource manual is divided into three parts:  Part 1 contains short articles and information relevant to modules of the training courses. The training course that you attend may not focus fully on all the modules covered in the resource book. The focus of your particular course will depend on the needs of the participant group who attend your course. However, you will find it useful to make time to at least read through the parts of the resource book that are not covered in your training course.  Part 2 (identified by a distinctive border) contains worksheets, exercises and activities for participants to complete during training courses. Once again, the nature of your particular course will determine which activities you are asked to complete during your course, but you should be able to complete the other activities at home, or to use them to run your own training activities.  Part 3 is a CD Rom containing full texts of key documents on housing rights.

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FRAMING THE DISCUSSION ABOUT HOUSING RIGHTS Extra readings on the CD-Rom International Human Rights Internship Programme (1997). Ripple in Still Water. Reflections by activists on local and national-level work on Economic, Social and Cultural Rights International human Rights Internship Programme: Washington, pg. 9-17. This chapter uses many interesting practical examples to show why groups have chosen a rights approach to ESC activism, and discusses the guiding principles to such an approach. â&#x20AC;&#x153;Introduction to International Human Rightsâ&#x20AC;? (1996) in International Human Rights (Newman and Weissbrodt, eds.), Anderson Publishing Co., chapter one, pp. 1-17.

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Why take a rights-based approach to housing issues?

Editor: insert Pic of Scott Q: There are many different ways to try to achieve housing rights for all. Some people try to do it by bringing about political change; others focus on development, or on grassroots struggle. Why do you advocate a rights-based approach to the housing rights issue? A: Scott Leckie, Executive Director of COHRE The most important argument for favouring a rights based approach is that it puts everything into a common legal framework. This framework creates legally binding obligations and duties upon one side (which is the state) and creates legally enforceable entitlements and rights on behalf of others (which are the people). Applying a rights framework says that every person in the world should have a right to basic minimum core requirements – a certain body of entitlements that must be provided in some way by the state. If they refuse to do that there are certain mechanisms and procedures in place that people can evoke very easily that should lead to governments changing their laws and policies so that they actually provide these things. A rights based approach transforms a beggar into a rights claimant. It’s the same person, but in a political or developmental context, that person is essentially asking for assistance based upon good faith, or maybe based upon good morals, maybe religion, maybe policies, but not based on their rights in national or international law. Second, a rights based approach creates a common, clear conceptual framework for addressing these wider issues. It forces governments to spend money if they take rights seriously and to do actions that are going to benefit the largest number of people rather than the elite or whatever groups may be affiliated with the government. And it creates a framework, a formula, for measuring if they actually are doing that. Third, it’s a way to hold governments accountable under law. It’s not simply saying, “The government didn’t perform well so we are going to vote it out so that more people get housing.” The rights based approach says, “The government has consciously done certain things or not done certain things and as a result of that it has violated the rights of its citizens”. These timeless universal standards place the individual in a very different role vis-à-vis the society, or the state, if you look at it through the lens of human rights or if you look at it through the lens of human development or pure politics. Some countries which are very progressive and which actually do care about the plight of the poor or the lower middle classes and which you would expect to be pro Economic Social and Cultural rights are in fact reluctant to recognise them. Sweden is the classic example. It is the ultimate welfare state and Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 17

Social Democrats have held control for about eighty-five years. They support in principle the concept of ESC rights but they don’t support that the judges should be the ones who should decide whether or not these rights are being kept, because it is not democratic. That’s a very big issue that is not relevant to most countries, but it is a strong argument against a rights based approach in a country where you know that a social democratic party that prides itself on taking care of needs of the population is going to stay in power for a very long time. That’s part of the fourth major reason for taking a rights based approach: it doesn’t matter who is in power because the government (whether it is right wing, moderate or left wing) would have to apply the same principals. So this is a way of really keeping and strengthening the fact that everyone, from the minute they are born to the minute they die should have access to these basic requirements. Politics does change. Politics does favour some groups and not others. But human rights are so basic, so central to human life that you have to have them notwithstanding who’s in power. If you only have a political framework, many groups lose out if their party doesn’t win. The rights- based approach says: You will win no matter what. The whole thing of being able to invoke human rights is also another major advantage of a rights based approach; it provides you with remedies that you would normally not have at all. If you were to be working in a purely political context, and you didn’t get housing or education or a job, there’s no one to turn to (or you could go to your Member of Parliament, maybe). Applying a rights based approach allows you to actually turn to official institutions and say “Hey, I know you have an obligation to see that this particular right of mine is protected, but I don’t have that protection! Something’s going wrong and we need an independent body to decide if you are doing something wrong and force you to do something about it.” A purely legal approach is probably not the wisest way to go. There should be a combination of that with popular struggle, with education, with support and so on. International NGOs and others should work together with local and national institutions all driving in the same direction. That yields the best results. There are people, very good people, who believe that the human rights approach is so legalistic, so formal, that it doesn’t recognise the real reality. Slum dwellers for instance, live outside the legal system, and basically create their own solutions. Some people argue that writing a constitution or a statute does nothing to help them. The only thing that really matters is that they get more money in their pockets, that they mobilise and get together and start improving their situation on their own because the role of the government is going to be so minimal anyway that people have to do it themselves. I think this is not an unreasonable view, but my own perspective would always be, better we combine forces and look at things through the lens of human rights and see what you can do at political, economic, and other levels to make it a reality. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 18

Defining housing rights Housing Rights are Human Rights Housing rights involve more than the right to access to shelter. Rather, they include the following indivisible, interdependent and interrelated human rights:          

    

The human right to adequate housing. The human right to an adequate standard of living. The human right to access to safe drinking water and sanitation. The human right to the highest attainable standard of physical and mental health. The human right to a safe and healthy environment. The human right of the child to an environment appropriate for physical and mental development. The human right to access to resources, including energy for cooking, heating, and lighting. The human right of access to basic services, schools, transportation and employment options. The human right to affordability in housing, such that other basic needs are not threatened or compromised. The human right to freedom from discrimination in access to housing and related services based on sex, race and ethnicity, or any other status. The human right to choose one's residence, to determine where and how to live and to freedom of movement. The human right to freedom from arbitrary interference with one's privacy, family or home. The human right to security, including legal security of tenure. The human right to equal protection of the law and judicial remedies for the redress of violations of the human right to adequate housing. The human right to protection from forced evictions and the destruction or demolition of one's home including in situations of military occupation, international and civil armed conflict, establishment and construction of alien settlements, population transfer, and development projects

The right to security of place Since all human rights are to be treated equally, in an interdependent and indivisible manner, we should begin discussions on what could be called the right to security of place. This right exemplifies the convergence of civil and political and economic, social and cultural rights and places three forms of security into an indispensable human rights framework. Firstly, this right encapsulates the notion of physical security-protection of physical integrity, safety from harm, and guarantees that basic rights will be respected. Secondly, this right incorporates all dimensions of human security - or the economic and social side of the security equation. While Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 19

thirdly, the right to security of place recognizes the importance of tenure rights (for tenants, owners and those too poor to afford to rent or buy a home) and the crucial right to be protected against any arbitrary or forced eviction from one’s home. This manifestation of security intrinsically links to housing rights concerns during times of peace and to housing rights issues arising in the midst of armed conflict and humanitarian disasters. Mary Robinson Former UN High Commissioner for Human Rights Geneva, 9 March 1999

Defining “Adequate” Housing While the most people in the world live in some form of dwelling, roughly onehalf of the world's population does live in housing which is considered inadequate. According to international human rights law, an adequate house must provide more than four walls and a roof; it must, at a minimum, include the following seven elements:       

Security of Tenure Availability of Services, Materials, Facilities and Infrastructure Affordability Habitability Accessibility Location Cultural Adequacy

General Comment No. 4 adopted by the UN Committee on Economic, Social and Cultural Rights, elaborates these seven criteria of housing adequacy, and provides the single most authoritative interpretation of the right to adequate housing under international human rights law. These are the seven core components of adequate housing according to international human rights law. There are, of course, many other features to the enjoyment of the right to housing, including protection against all forms of discrimination, freedom of movement, the right to privacy and respect for the home, and many others. Security of Tenure. Security of tenure is the cornerstone of the right to adequate housing. Secure tenure protects people against arbitrary forced eviction, harassment and other threats. Most informal settlements and communities lack legal security of tenure. Hundreds of millions of people do not currently live in homes with adequate secure tenure protection. Security of tenure is a key issue for all dwellers, and particularly for women. This is particularly so for women experiencing domestic violence who may have to flee their homes to escape abuse and for women who do not have title to their homes or lands and thus can be easily removed, especially upon marriage dissolution or death of a spouse. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 20

The importance of Security of Tenure Living in a home without secure tenure means in essence that people do not control what happens to their housing. Consider the consequences of insecure tenure. Individuals, families and communities lacking security of tenure are understandably reluctant to invest in improving their homes for fear that such investments will only be destroyed or taken away from them once they are evicted. For similar reasons, long term planning is rarely undertaken. Lack of secure tenure can also reinforce social exclusion and poverty. Individuals, families and communities are often well aware that they are being treated differently than others simply because they cannot afford property with secure tenure. Conversely, the provision of secure tenure has many positive implications, not the least of which is legal recognition of entire communities. Secure tenure affords people the opportunity to make improvements to their homes with the knowledge that their efforts are not wasted. Security of tenure provides confidence in dwellers to develop and take pride in their communities and to make them their own. The knowledge that a community will not disappear because of the whims of government officials produces greater demands and expectations by community members for improved local services. It also allows dwellers the security and peace of mind that assists them in carrying on with daily activities such as employment, education and community involvement. The legal recognition and protection of secure tenure is a significant step that national governments can take toward the realization of the right to housing. The Habitat Agenda (1996), reaffirms the role of national governments in promoting and protecting secure tenure when it states at paragraphs 40 (b) that governments should commit themselves to: Providing legal security of tenure and equal access to land to all people, including women and those living in poverty; and undertaking legislative and administrative reforms to give women full and equal access to economic resources, including...ownership of land and other property, credit, natural resources and appropriate technologies. The United Nations Centre on Human Settlements (UN-Habitat) has also recognised how vital security of tenure is for the enjoyment of housing rights and recently inaugurated a Global Campaign for Secure Tenure to ensure that everyone in the world is accorded this basic right.

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Availability of Services, Materials, Facilities and Infrastructure. An adequate house has access to potable drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage, refuse disposal, site drainage and emergency services. When any of these facilities is not available, health, security, nutrition or comfort is threatened and the right to adequate housing is not fully realized. Affordability. The amount a person or family pays for their housing must not be so high that it threatens or compromises the attainment and satisfaction of other basic needs. Lack of affordable housing is an acute problem throughout the world (in both developed and developing countries) and a major reason why so many people live in informal settlements. When rental housing is unaffordable, tenants' security of tenure is threatened as they can often be legally evicted for non-payment of rent. According to the affordability principle, States parties should take steps to protect tenants from unreasonable rent levels and rent increases, to ensure the availability of natural building materials for housing and to establish appropriate channels for obtaining housing financing. Habitability. For housing to be considered adequate, it must be habitable. Inhabitants must be ensured adequate space and protection against the cold, damp, heat, rain, wind or other threats to health or structural hazards. Housing which lacks such protections is frequently associated with diseases and higher mortality rates. Accessibility. Housing must be accessible to everyone. Disadvantaged groups such as the elderly, the physically and mentally disabled, HIV-positive individuals, victims of natural disasters, children and other groups should be ensured some degree of priority consideration in housing. Both housing law and policy must ensure their housing needs are met and it should be a central policy goal of governments to increase access to land by landless or impoverished segments of society. In many parts of the world, laws and policies do little to address the housing needs of the most disadvantaged but instead focus on already advantaged social groups. Additionally, in rental and housing markets, discrimination against disadvantaged groups is common and poses a significant barrier to housing access. Location. For housing to be adequate it must be situated so as to allow access to employment options, health care services, schools, childcare centres and other social facilities. It must not be located in polluted areas. When communities are evicted to forced eviction section from their homes they are often relocated to remote locations lacking facilities or in polluted areas, near garbage dumps or other sources of pollution. Culturally Adequate. Adequate housing should allow for the expression of cultural identity and the cultural diversity of the world's population. This means that cultural dimensions of housing such as the way housing is constructed,

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the building materials used and the policies supporting these should not be sacrificed in the name of development or modernisation. Example: Culturally adequate housing in Tibet Traditional Tibetan dwellings often have one or two storeys and multifunctional internal courtyards. Animals live on the ground floor, and the warmth they produce rises to the higher floors where the people reside. Walls are thick and provide substantial insulation against the harsh winters. The houses have small windows and low ceilings and when a traditional building is taken down, it is possible to reuse every part of it. Under Chinese rule, traditional houses in Tibet were regarded as “dangerous” “cultural relics”. The Chinese developed plans such as the 1980 Lhasa Development Plan to demolish traditional housing in Tibet, and to replace it with “modern”, “ordered” dwellings. However surveys have shown that the new housing is inferior to the traditional structures. New buildings lack many of the traditional energy-conserving features – they are single storied, their walls are thinner, they do not have fireplaces, they are made of cold concrete, they are rigid (a bad thing in an area prone to earth tremors) and cold, and if demolished, building materials cannot be salvaged.

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Some Common Myths about Housing Rights EDITOR: Can we make this more interesting by using icons/ maybe even cartooning the myths. Or any other ideasâ&#x20AC;Ś

Though it is now generally accepted that the right to housing exists under international, regional and domestic laws, there remain a number of misperceptions regarding the content and implications of this right. Many of these are similar to the misperceptions associated with economic, social and cultural rights, more generally. There are many false myths about housing rights, but the following five are perhaps the most common: Myth: The courts cannot protect housing rights. This is one of the most common myths propagated about the right to housing and other economic and social rights. The notion that housing rights are non-justiciable is usually based on a comparison with civil and political rights. Proponents of this myth believe, among other things, that unlike civil and political rights, economic, social and cultural rights, such as the right to housing, are too vague and too cost-intensive (requiring government action rather than inaction) to be litigated, and can only be implemented in a piecemeal fashion on the basis of policy, but not on law and justice. Reality: 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. Concurrently, regional and international human rights bodies, such as The European Court of Human Rights; The UN Committee on Economic, Social and Cultural Rights; and The UN Committee on the Elimination of All Forms of Racial Discrimination have directly considered housing rights issues in their case law or jurisprudence. General Comment No. 4 adopted by the UN Committee on Economic, Social and Cultural Rights, identifies six specific areas within the right to adequate housing that are capable of judicial scrutiny: legal appeals aimed at preventing planned evictions through the issuance of injunctions; legal procedures seeking compensation following an illegal eviction; complaints against illegal actions carried out or supported by landlords in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; allegations of any form of discrimination in the allocation and availability of access to housing; complaints against landlords concerning unhealthy or Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 24

inadequate housing conditions; and class action suits in situations involving significantly increased levels of homelessness. Myth: Housing rights require the State to build housing - free of charge for the entire population. Opponents of housing rights have often argued that recognising housing rights would require governments to build housing for the entire population - an entirely State-based, State-determined and State-driven approach to housing. Presumably, this myth came about based on literal interpretations of the term "right to housing," and the notion that if the right to housing is granted to all, individuals would demand housing from the State despite the limited resources of the State to meet such demands. Reality: The right to adequate housing has never been interpreted under international law to mean that States must provide housing, free of charge, to all who request it. Under international law, once a State accepts the obligations attached to the right to housing, it agrees to endeavour, by all appropriate means possible, to ensure that everyone has access to housing resources adequate for health, well-being and security. Upon assuming legal obligations, States are required to undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right to housing, thus creating the necessary conditions so that all residents may enjoy the full entitlements of the right to housing within the shortest possible time-frame. This is both reasonable and realistic. Although international law may not require States to provide housing for everyone who requests it, some countries have voluntarily taken on this responsibility. Legislation in Finland, for example, makes it mandatory for local government to provide housing resources for the severely handicapped under certain circumstances. In other contexts, homeless children in South Africa, homeless families in the United Kingdom, victims of natural disasters or others with acute housing needs in many countries do have rights to immediate housing relief. The Committee on Economic, Social and Cultural Rights has also provided some insight into whether States have to construct housing for all upon demand. The Committee has indicated that the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires States parties (that is, States which have ratified the ICESCR) to provide minimum subsistence rights for everyone regardless of the level of economic development of the country. This means that States parties must ensure, at the very least, minimum essential levels of each of the rights in the ICESCR, including the right to housing. Thus, a State party in which any significant number of individuals is deprived of basic shelter and housing would be failing to discharge its obligations under the ICESCR. In meeting their obligations under the ICESCR, States are required to give due priority to those who are most vulnerable and disadvantaged and consequently least able to achieve the right to housing themselves. In other words, State parties should provide housing or access to housing resources to those people who are homeless, inadequately housed or incapable of acquiring the bundle of entitlements that correspond with housing rights.

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Myth: The State must fulfil all aspects of the right to housing immediately. Many States are fearful of the right to housing because they mistakenly believe that the right to housing requires them to immediately implement all housing rights obligations to comply with international law. Reality: Of course, it would be ideal if States could fulfil all aspects of the right to housing immediately. International law has recognized the impracticality of this and has responded by interpreting this right to mean that States parties will have some legal obligations that must be undertaken immediately and others that are more long-term or progressive in nature. In other words, protecting and enforcing the right to housing will involve some immediate action and some future action, all of which will eventually lead to the full, society-wide, enjoyment of this right. The immediate action required by State parties to the ICESCR arises out of article 2(2) of the ICESCR which stipulates that States parties "undertake to take steps ... by all appropriate means, including particularly the adoption of legislative measures.". In its General Comment No. 3, the Committee on Economic, Social and Cultural Rights has interpreted this phrase to mean that State parties are obliged to immediately begin to adopt measures towards the full enjoyment by everyone of the right to housing. While the full realization of the right to adequate housing might be achieved progressively, steps toward the goal must be taken within a reasonably short time after the Covenant is ratified by the State. The means by which this must be accomplished include - but are by no means limited to - the adoption of legislation. The Covenant also recognizes that some aspects of the right to housing may not be capable of immediate realization. In turn, according to the Covenant, States are obliged to undertake to achieve progressively the full realization of the rights contained in the ICESCR. The use of the term "progressive realization" is a recognition that full realization of all economic, social and cultural rights, including the right to housing, will generally not be able to be achieved in a short period of time. This does not mean, however, that States can indefinitely defer efforts to ensure the enjoyment of the rights in the Covenant. Myth: Housing rights are only necessary in developing countries. There is a tendency to view housing rights as an issue solely affecting developing countries where housing rights are denied to often massive portions of society. Reality: Every nation in the world faces at least some housing rights challenges, including the countries making up the European Union, the United States, Canada and Australia. For example, in its 1998 review of Canada, the Committee on Economic, Social and Cultural Rights stated that they were "gravely concerned that such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada's ten largest cities have now declared homelessness a national disaster.". While it may be true that the housing conditions in affluent countries are relatively better than in non-affluent countries, this is an inappropriate comparison. The proper comparison is intraState. That is, how do the housing conditions of disadvantaged groups Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 26

compare with those of more advantaged groups in a particular society? Both developed and developing countries share a number of housing problems including rapidly growing homelessness, domestic violence, discrimination in the housing sector, particularly against the poor, forced evictions, harassment of tenants and an increased reliance on market mechanisms to fulfil housing needs without a corresponding alteration of State policy to provide access to accommodation for those unable to access private housing. Myth: Squatters are criminals. Throughout the world squatters (those who live on property to which they do not have legal title) are often viewed and treated as criminals, social deviants and as being lazy. In some instances, they are perceived as greedy free-loaders who want to get something (land, property) for nothing. In many countries squatters are arrested, physically abused, beaten, and sometimes even killed. Rarely are squatters provided with what they really need: security of tenure, housing, and to be treated with dignity and respect. Reality: Treating squatters like criminals means turning a blind eye to the economic and social circumstances that make squatting necessary. Think of it this way, without the buildings or lands they occupy, squatters would be homeless. While there are certainly exceptions, the overwhelming majority of the world's hundreds of millions of people living in informal settlements (e.g., 'squatters') want nothing more than to live in a safe and secure home which they can afford, and where they would have security of tenure. The world's homeless and inadequately housed population does not squat to break laws or get a free-ride, rather they are simply creating housing solutions when the legal housing sector fails to provide housing to all persons from all income groups. Squatting is an expression of desperation, but also of hope. If they had the means, most squatters would choose to live in adequate housing with secure tenure - just like everyone else.

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UNDERSTANDING ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN GENERAL An Overview of Economic, Social and Cultural Rights This article draws on notes from a presentation given by Dr. Mario Gomez, Faculty of law, University of Colombo, Sri Lanka, during the “National Institutions at work: Regional Training Programme,” Antipolo, Philippines, May 9-14, 1999.

The International Covenant on Economic, Social and Cultural Rights is the most important legal source of housing rights under international law. It outlines the following key rights:  The Right to Work and to Favourable Conditions of Work  The Right to Form and Join Trade Unions  The Right to Social Security  The Right to Family Life  The Right to an Adequate Standard of Living  The Right to Adequate Food and Clothing  The Right to Adequate Housing  The Right to the Highest Attainable Level of Health and Health Care  The Right to Education  The Right to Free and Compulsory Primary Education  The Right to Culture  The Right to Water In contrast to civil and political rights which have been the subject of decades of examination, discussion and elaboration, economic, social and cultural rights have been largely ignored by the human rights movement until recently. Consequently, our understanding of these rights is much more limited. In addition, while in the traditional human rights movement, human rights were seen as a means to curtail state action, economic, social and cultural rights in particular are being viewed increasingly as means for change and social transformation. The wording of the International Covenant on Economic, Social and Cultural Rights (ICESCR) leaves room for the interpretation of State obligations. In particular, the Covenant states that States should seek the progressive realisation of ESC rights. Furthermore, this is to be done in the context of available resources. ESC rights are often ignored because they are seen to involve substantial resource allocations beyond the capacity of many states. The idea of progressive realisation contained in the ICESCR is very different from the wording of the International Covenant on Civil and Political Rights (ICCPR), which dictates immediate obligation. Consequently ESC rights have been viewed by many as a statement of aspirations or goals rather than binding obligations like civil and political rights. Given that this school of Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 28

thought prevailed for many years, it is important to be aware of the work of the UN Committee on Economic, Social and Cultural Rights which is helping to provide an authoritative interpretation of the Stateâ&#x20AC;&#x2122;s obligations under the ICESCR through its General Comments. In particular the Committee has argued that many provisions of the ICESCR must be implemented immediately, particularly the anti-discrimination provisions contained in Article 2. Fact Sheet No. 21 on the right to adequate housing of the United Nations Office of the High Commissioner for Human Rights notes that States have obligations to respect, protect and fulfil housing rights. It is only the duty to fulfil which is subject, in part, to progressive realisation. "To Respect" The duty to respect the right to adequate housing means that Governments should refrain from any action which prevents people from satisfying this right themselves when they are able to do so. Respecting this right will often only require abstention by the Government from certain practices and a commitment to facilitate the "self-help" initiatives of affected groups. In this context, States should desist from restricting the full enjoyment of the right to popular participation by the beneficiaries of housing, rights, and respect the fundamental right to organize and assemble. In particular, the responsibility of respecting the right to adequate housing means that States must abstain from carrying out or otherwise advocating the forced or arbitrary eviction of persons and groups. States must respect people's rights to build their own dwellings and order their environments in a manner which most effectively suits their culture, skills, needs and wishes. Honouring the right to equality of treatment, the right to privacy of the home and other relevant rights also form part of the State's duty to respect housing rights. "To Protect" To protect effectively the housing rights of a population, Governments must ensure that any possible violations of these rights by "third parties" such as landlords or property developers are prevented. Where such infringements do occur, the relevant public authorities should act to prevent any further deprivations and guarantee to affected persons access to legal remedies of redress for any infringement caused. In order to protect the rights of citizens from acts such as forced evictions, Governments should take immediate measures aimed at conferring legal security of tenure upon all persons and households in society who currently lack such protection. In addition, residents should be protected, by legislation and other effective measures, from discrimination, harassment, and withdrawal of services or other threats. Steps should be taken by States to ensure that housing-related costs for individuals, families and households are commensurate with income levels. A Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 29

system of housing subsidies should be established for sectors of society unable to afford adequate housing, as well as for the protection of tenants against unreasonable or sporadic rent increases. States should ensure the creation of judicial, quasi-judicial, administrative or political enforcement mechanisms capable of providing redress to alleged victims of any infringement of the right to adequate housing. "To Fulfil" The obligation of a State to fulfil the right to adequate housing is both positive and interventionary. It is in this category, in particular, that issues of public expenditure, government regulation of the economy and land market, the provision of public services and related infrastructure, the redistribution of income and other positive obligations emerge. The Committee on Economic, Social and Cultural Rights has asserted that identifiable governmental strategies aimed at securing the right of all persons to live in peace and dignity should be developed. Access to land as an entitlement should be included in such strategies. The Committee has stated further that many of the measures required to satisfy the right to housing will involve resource allocations and that, in some cases, public funds allocated to housing might most usefully be spent on direct construction of new housing. Generally, on the issue of housing finance, States must establish forms and levels of expenditure which adequately reflect society's housing needs, and which are consistent with the obligations arising from the Covenant and other legal sources. As proclaimed in the Limburg Principles on the Implementation of the Covenant on Economic, Social and Cultural Rights, and reiterated subsequently by the Committee, due priority shall be given, in the use of all available resources, to the realization of rights recognized in the Covenant, mindful of the need to assure to everyone the satisfaction of subsistence requirements, as well as the provision of essential services.

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A guide to key provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) Adapted from: Ravidran, D.J. (1998) Human Rights Praxis: A Resource Book for Study, Action and Reflection. Bangkok, Thailand: The Asian Forum for Human Rights and Development, and Comments by the The United Nations Special Rapporteur on Economic, Social and Cultural Rights, H.E. Danilo Türk (1992).

Obligations of States Article 2(1) of the International Covenant on Economic, Social and Cultural Rights deals with the obligations of State Parties. According to the Committee on Economic, Social and Cultural Rights, Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by State Parties to the Covenant. Article 2(1) of the Covenant states that: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all the appropriate means, including particularly the adoption of legal measures.’ The obligations of State Parties are expressed through the use of the terms ‘undertakes to take steps,’ ‘to the maximum of available resources,’ ‘achieving progressively the full realisation,’ and ‘by all the appropriate means, including particularly the adoption of legislative measures.’ Meaning of ‘Undertakes to Take Steps’ The Committee on Economic, Social and Cultural Rights has clarified that, ‘while the full realisation of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete, and targeted as clearly as possible toward meeting the obligations recognized in the Covenant.’ Meaning of ‘By all Appropriate Means, Including Particularly the Adoption of Legislative Measures’ The Committee on Economic, Social and Cultural Rights has recognized that States must decide the appropriate means, and it may depend on the right that is being implemented. However, the Committee has stated that, ‘State Party reports should indicate not only the measures that have been taken but also the basis on which they are considered the most appropriate under the circumstances.’ Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 31

A State Party cannot avoid its obligations by merely saying that its policies are aimed at economic development and that poverty or illiteracy will be eradicated eventually. As for the term ‘adoption of legislative measures,’ the Committee has stated that adopting legislation by no means exhausts the obligation of the State. The mere existence of a law is not sufficient to prove that a State Party is carrying out its obligation under the Covenant. In addition to laws, the Committee has stressed the need for ‘provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable.’ Meaning of ‘Achieving Progressively’ It is normally assumed that due to the resources required for the realisation of economic, social and cultural rights, they are incapable of immediate implementation. However, the overall objective of the Covenant is to establish clear obligations for State Parties in respect of the full realisation of the rights in question. It thus imposes an obligation to move as quickly and effectively as possible towards that goal. The Committee has concluded that ‘progressive realisation’ includes not only the continuous improvement but also the obligation to ensure that there are no regressive developments. Meaning of ‘To the Maximum of Its Available Resources’ The notion that economic resources are essential for the implementation of economic, social and cultural rights has been the major excuse for considering them secondary to civil and political rights. The Committee has acknowledged the importance of resources in fulfilling the rights but does not consider resource availability as an escape clause. For example, it has stated that ‘in cases where significant numbers of people live in poverty and hunger, it is for the State to show that a failure to provide for persons concerned was beyond its control.’ The Committee has developed the idea of ‘minimum core obligations’ to refute the argument that lack of resources hinders fulfilment of obligations. The Committee has observed that every State has a minimum core obligation to satisfy minimum essential levels of each of the rights in the Covenant. The Committee has made it clear that ‘even where the available resources are demonstrably inadequate, the obligation remains for a State Party to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.’ In addition, the Committee has stated that ‘even in times of severe economic constraints ... vulnerable members of the society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.’

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Non-Discrimination and Equality Article 2(2) and Article 3 of the ICESCR deal with the non-discrimination aspect. Article 2(2) is similar to other instruments in stating that the rights should be enjoyed without discrimination on the grounds of ‘race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth, or other status.’ The phrase “other status” is broadly interpreted, and has been expressly interpreted to include a prohibition of discrimination based on physical or mental disabilities, age and sexual orientation. Article 3 is more specific. It provides for the ‘equal right of men and women to enjoy the rights ... set forth in the Covenant.’ The concept of ‘progressive realisation’ does not limit the non-discrimination clause or the obligation to ensure equal rights of men and women. A State is obliged to ensure the non-discrimination and equality clause immediately rather than progressively. The obligation to ensure equal rights of men and women includes affirmative action to eliminate conditions that contribute to discrimination and inequality. States must also give priority to those who are the most vulnerable and disadvantaged and consequently least able to achieve these rights for themselves. The concept of ‘progressive realisation’ does not limit the non-discrimination clause or the obligation to ensure equal rights of men and women. A State is obliged to ensure the non-discrimination and equality clause immediately rather than progressively. The obligation to ensure equal rights of men and women includes affirmative action to eliminate conditions that contribute to discrimination and inequality. States must give priority to those who are the most vulnerable and disadvantaged and consequently least able to achieve these rights for themselves The Committee has followed the practice that discrimination is not restricted to those grounds specifically identified under the Covenant. Rather the ‘other status’ clause in Article 2 has been broadly interpreted to and includes discrimination based on age, health, disability status, sexual orientation, etc Obligations of non-state actors Legal obligations towards the realization of economic, social and cultural rights are multidimensional. At the macro-level they affect: (1) national and local governments and agencies, as well as third parties capable of breaching Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 33

these norms; (2) the international community intergovernmental organizations and agencies;

States;

and

(3)

All actors with both implicit and explicit mandates vis-Ă -vis the realization of economic, social and cultural rights must ensure that their policies, projects, perspectives and programmes do not harm the prospects of these rights being realised, nor the capability of a State to fulfil its own legal duties. The increasing integration and internationalisation of the global economy, as well as political and social structures and processes, increase the importance of international cooperation and responsibility.

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BENEFICIARIES OF HOUSING RIGHTS Specific Needs of Affected or Vulnerable Populations General Comment No. 4 says: The right to adequate housing applies to everyone. While reference to "himself and his family" reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitation upon the applicability of the right to individuals or to female-headed households, or other such groups. Thus, the concept of "family" must be understood in a wide sense. Further, individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors. In particular, enjoyment of this right must, in accordance with article 2(2) of the Covenant, not be subject to any form of discrimination. The right to adequate housing applies to everyone, but certain affected or vulnerable populations have very specific housing rights needs. These groups include:               

Homeless Citizens (persons with no permanent residence) Pavement Dwellers (permanent residence on pavement) Slum Dwellers (residents of informal settlements, tenements, squatter areas, etc.) Public Sector Tenants (residents of social housing units) Private Sector Tenants (residents of private sector housing units) Owner-occupiers (own and reside in own home) Victims of Eviction, Demolition, Natural Disasters, etc. (temporarily or permanently displaced and de-housed) Workers (employees of employers responsible for the provision of housing) Families (families of every size or status) Women (all women of any status) Children (all children of any status) Disabled persons (all physically and mentally disabled persons, including persons with chronic health problems) Migrant Workers (non-citizens employed in third countries) Elderly persons (all persons over 60 years of age) Refugees and Asylum Seekers (all accepted refugees and asylum seekers)

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Women and Housing Rights The facts about women’s housing rights around the world  Approximately one third of the world’s women are homeless or live in inadequate housing.  While women perform two-thirds of the world’s total working hours, they own less the one percent of the world’s property.  Each day, thousands of women die of preventable disease, complications in childbirth, and violence. Many of these preventable deaths are directly related to inadequate housing conditions, including poor ventilation and inadequate sanitation, isolation from health care facilities, and lack of physical security within the home.  Women and girl children make up 80 percent of the world’s estimated 50 million refugees and internally displaced persons, forced to leave behind their homes and lands.  In many countries, especially within Africa and South Asia, women are systematically denied ownership and inheritance rights. Women are at the mercy of male relatives to access housing and land.  Women are targeted during forced evictions, especially during times of conflict. Rape is often used as a “tool” to forcibly remove communities from their homes.  In many countries, the majority of homeless women are escaping situations of domestic violence. An estimated 60 percent of homeless women in the United States are escaping batterers at home. Making the connections between HIV/AIDS, women and housing HIV/AIDS is linked with women’s housing and land rights. Women are frequently evicted, even by their own families, after they are diagnosed with HIV/AIDS. Often, after their husbands die from AIDS, women are denied any inheritance, or are forced into the ritual of ‘widow inheritance,’ where a male relative of the deceased takes the woman as a second wife. If a woman refuses to submit to the practice, she may be ostracized, and unable to acquire adequate housing on her own.

Over 1.6 billion people are inadequately housed globally … why focus on women? While lack of access to stable and secure housing adversely affects all, women bear the brunt of housing poverty and housing discrimination. Women are also disproportionately affected by the often-violent practice of forced eviction. Overburdened with treble shifts of caring for children, managing households and generating income, women rely heavily on proper and secure housing for their economic and personal well-being. Lack of security in the area of housing and land deprives women of economic autonomy, physical safety and personal dignity, and serves to marginalize women by contributing Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 36

to the feminisation of poverty and women’s continued social subjugation. Without adequate housing, women cannot enjoy other fundamental rights, such as the right to privacy, the right to the highest attainable standard of health, or the right to self-determination. Thus, it is important that women’s housing rights be addressed, promoted and protected. What does the right to “adequate” housing mean for women? According to international human rights law, in order for housing to be adequate it must provide more than just four walls and a roof over one’s head; it must, at a minimum, include certain elements, which follow. The significance of each aspect for women is highlighted.  Security of tenure Secure tenure protects people against arbitrary forced eviction, harassment and other threats. Tenure for women is often dependent upon their relationship to a male. Victims of domestic violence, without legal claim in the home and facing obstacles to obtaining housing on their own, must often face the choice of homelessness or remaining prisoners of violence.  Availability of services, materials, facilities and infrastructure Adequate housing requires access to potable water, energy for cooking, heating and lighting, sanitation, washing facilities, food storage, refuse disposal, drainage and emergency services. The importance of the proximate availability of these services is clear, considering the reality of many women’s daily lives, often bearing the primary responsibility for the care of household, children and other family or community members.  Affordability The housing affordability principle stipulates simply that the amount a person or family pays for their housing must not be so high that it threatens or compromises the attainment and satisfaction of other basic needs. This provision must be interpreted so that women, often economically marginalized, are able to afford adequate housing through appropriate credit and financing arrangements.  Habitability Inhabitants must be ensured adequate space and protection against the cold, damp, heat, rain, wind or other threats to health or structural hazards. In this respect, women must also be protected from domestic violence, a clear threat to their health.  Accessibility Disadvantaged groups such as the elderly, children, the physically and mentally disabled, HIV-positive individuals, victims of natural disasters and other groups should be ensured some degree of priority consideration in housing. Women are also a traditionally disadvantaged group vis-à-vis housing, due to societal and cultural discrimination and subordination. Women with disabilities or HIV/AIDS are even further marginalized. As such, States’ must undertake specific measures to address the needs of specific groups of women. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 37

 Location Housing must be situated so as to allow access to employment options, health care services, schools, childcare centres and other social facilities. The location of housing is especially vital for women to allow them the opportunities to fulfil other fundamental rights.  Cultural adequacy Housing must allow for the expression of cultural identity and recognise the cultural diversity of the world's population. Women must be given the chance to partake in the planning of housing to ensure a reflection of their collective identity. Where are housing rights protected for women? Several international legal instruments recognize women’s legal rights to housing, property and land. Additional regional, national and local laws also exist to protect these rights.1        

 

Universal Declaration on Human Rights (UDHR): Article 25(1) International Covenant on Economic, Social and Cultural Rights (ICESCR): Articles 11(1), 2(2)2 International Covenant on Civil and Political Rights (ICCPR): Articles 3 17, 26, General Comment 283 Convention on the Elimination of All Forms of Discrimination Against Women: Articles 14(h)(2), 15, 16(1)(c) and (h)4 Convention on the Rights of the Child: Article 275 Beijing Declaration and Platform for Action: Paras. 8, 36, 26, 35 and 65(b)6 Habitat II Agenda and Platform for Action: Paras. 25(a), 26, 27, 40 and 467 Commission on Human Rights Resolution 2003/22 ‘Women’s equal ownership of, access to and control over land and the equal rights to own property and to adequate housing’8 Commission on the Status of Women Resolution 42/1, ‘Human Rights and land rights discrimination’9 UN-HABITAT Governing Council Resolution of Women’s Role and Rights in Human Settlement Development and Slum Upgrading’10

For example, The American Declaration on the Rights and Duties of Man, Art. 23, African Charter on Human and Peoples’ Rights, Article 14 2 Article 11(1) protects the right to adequate housing; 2(2) provides for non-discrimination, (1966) 3 Article 3 provides for equality of women and men; 17, protects against unlawful interference in the home (1966), General Comment 28 specifically interprets Article 3 to include inheritance rights for women (2000) 4 Article 14(h)(2) provides for housing; 15, equality; 16 supra, equality in property during and after marriage (1980) 5 Article 27 recognizes the right of every child to adequate housing (1989) 6 Para. 8 and 36 provide for equality; 26 and 35 equal access to productive resources, Para. 65 provides for equal inheritance rights (2000) 7 Para. 25(a)and 26 reaffirms the right to adequate housing, Para. 27 ensures equal access to housing, land and inheritance, Para. 40 provides legal security of tenure, and Para. 46 to integrating gender in human settlements (2001) 8 Adopted by the Commission on Human Rights, 22 April 2003, E/CN.4/2003/22 9 Adopted by the Commission on the Status of Women, 1989, E/CN.6/1998/12

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The right to inheritance The issue of inheritance is especially vital because it addresses some of the systemic reasons for women’s disproportionately high levels of poverty within the world and disproportionately high levels of housing insecurity. Inheritance is a fundamental issue with regard to how wealth is transferred within a society, and it directly relates to the protection of a woman’s housing. 

Under many systems of customary law, women - regardless of their marital status - cannot own or inherit land, property and housing in their own names. In many parts of Africa, for example, men control household land (and the house on that land) because community authorities, who are predominantly male, allocate land to male household heads and these lands and the houses on them are then passed down to male heirs.



Under Islamic Law women are not precluded from owning and inheriting housing, land, and property, however, in practice they are not granted equality with men. For example, a review of the shares widows and daughters receive under the Islamic law of inheritance reveals that a widow is entitled to a fixed share of 1/8th of her late husband’s estate if he had children (not necessarily by her) and ¼ if there were no children.



In India, women have considerable legal rights to own and inherit land, property and housing, yet few women are able to claim these legal rights. Although India has a fairly progressive legal framework with respect to gender, it is rooted in a social framework that often denies women the legitimacy of such legal claims and of being able to exercise “control” over their land.

Women and forced evictions Women suffer enormously when forced evictions take place. Forced evictions often take place in the middle of the day, when in many communities it is almost assured that the majority of the men in the community will be away. Women and children are confronted, perceived as being weaker targets. Often, resistance on the part of women is met with violence, and women may be targeted with beating, rape, torture and even death. The indirect effects of forced eviction are also particularly severe for women. The constant threat of eviction often increases strain on an already unstable living situation, perhaps contributing to situations of domestic violence. After an eviction, it is women who bear a disproportionate responsibility for rebuilding households and taking care of family and community relationships. Women rendered homeless by forced eviction are also especially vulnerable to physical, sexual and psychological violence.

Adopted by the Governing Council of the UN Human Settlements Programme, 6 May 2003, HSP/GC/19/L.2/Rev.1.

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What do government’s need to do to respect, protect and fulfil women’s housing rights? 11 Government’s have a duty under international human rights law to ensure that women are not discriminated against on the basis of their gender. The right to non-discrimination as a matter of law and practice is a fundamental human rights recognized in virtually every international statement on human rights. Under the ICESCR, States Parties agree to endeavour, by all appropriate means, to ensure that women have access to housing resources adequate for their health, well-being and security, on an equal basis with men and without discrimination. Often, States can comply with their obligations simply by respecting these rights, or from refraining from certain practices such as forced evictions. States are also obligated to protect these rights, and to intervene in situations where third party actors, for example, corporations and other private actors, seek to violate these rights. Finally, States are required to fulfil housing rights, and to undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right to housing, thus creating the necessary conditions so that all residents may enjoy the full entitlements of the right to housing within the shortest possible time-frame. The adoption of a national housing strategy is recommended to all countries. Policies should help disadvantaged groups, and not merely benefit already advantaged social groups. What constitutes a violation of women’s housing rights? If a State fails to carry out its obligations under international human rights law, a violation of the right to adequate housing, land and property occurs. For example, with regard to women, each of the following violates their rights: A State condones or otherwise fails to protect women from customary practices that deny women’s inheritance rights;  A State conducts or otherwise fails to protect women from forced eviction;  A State fails to reform laws related to housing, family status, property and ownership rights that discriminate against women. 

It is not only States who violate women’s rights to adequate housing, land and property. Non-State actors can violate these rights as well. Examples include private actors such as corporations who evict women from their lands; lending institutions, who deny women access to credit; private landlords who discriminate against women; families who throw a woman out of the home after the death of her spouse; partners who commit acts of violence against women - all are violating a woman’s legal right to adequate housing, land and property, and all correlated fundamental human rights, such as the right to health, security, dignity and most fundamental, life. In all these cases, however, the State has a duty to protect women from these violations.

Most comprehensively set forth under General Comment No 4 (1991) to the ICESCR, paras. 9-19 also The Global Strategy for Shelter, Para. 32 (GA Res. 42/191) (1987)

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Children and Housing Rights â&#x20AC;&#x153;Street children throughout the world are subjected to physical abuse by police or have been murdered outright, as governments treat them as a blight to be eradicated-rather than as children to be nurtured and protected. They are frequently detained arbitrarily by police simply because they are homeless, or criminally charged with vague offenses such as loitering, vagrancy, or petty theft. They are tortured or beaten by police and often held for long periods in poor conditions. Girls are sometimes sexually abused, coerced into sexual acts, or raped by police. Street children also make up a large proportion of the children who enter criminal justice systems and are committed finally to correctional institutions (prisons) that are euphemistically called schools, often without due process. Few advocates speak up for these children, and few street children have family members or concerned individuals willing and able to intervene on their behalf.â&#x20AC;? -Human Rights Watch The United Nations Convention on the Rights of the Child states in Article 27(3): State Parties in accordance with national conditions and within their means shall take appropriate measure to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regards to nutrition, clothing and housing. Case Study: Forced evictions and the Rights of Children Bangladesh was among the first twenty-two countries to sign the UN International Declaration on the Rights of the Child. But when the government bulldozed the homes in Dhaka in 1999, and used force to intimidate and injure many, including children, they violated a number of articles of the International Convention of the Rights of the Child. Taking a conservative average of 3 children per household, and with approximately 19,432 households evicted, an estimated 58,296 children were evicted. Evicting children from their homes can traumatise them for life. After the eviction, many lived under insecure conditions on pavements, roadsides and other open places, without any basic amenities. This made them vulnerable to sickness and ill health, reducing their chances of survival and development. The police, verbally and physically abused children, and did not offer them protection. The Home Ministry, whose mandate is to uphold the law, sanctioned these violations. . The following articles of the CRC were violated: Article 6 (1) State Parties recognise that every child has the inherent right to life. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 42

(2) State Parties shall ensure to the maximum possible extent the survival and development of the child. Article 16 (1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, or to unlawful attacks on his or her honour and reputation. (2) The child has the right to the protection of the law against such interference or attacks. Article 24 (1) State Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. State parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. Article 27 (1) State Parties recognise the right of every child to a standard of living adequate for the childâ&#x20AC;&#x2122;s physical, mental, spiritual, moral and social development. (3) State Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes particularly with regard to nutrition, clothing and housing.

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Disabled Persons and Housing Rights General Comment No. 5 on Persons with Disabilities (9 December 1994) adopted by the Committee on Economic, Social and Cultural Rights states: In addition to the need to ensure that persons with disabilities have access to adequate food, accessible housing and other basic material needs, it is also necessary to ensure that “support services, including assistive devices” are available “for persons with disabilities, to assist them to increase their level of independence in their daily living and to exercise their rights” … Similarly, as already noted by the Committee in paragraph 8 of General Comment No. 4 (Sixth session, 1991), the right to adequate housing includes the right to accessible housing for persons with disabilities. Article 9 of the Declaration on the Rights of Disabled Persons (1975), adopted by United Nations General Assembly resolution 3447 (XXX) of 9 December 1975 proclaims: Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other then that required by his or her condition or by the improvement which he or she may derive there from. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age. Community Charter of Fundamental Social Rights (1989), adopted on 8 December 1989 in Strasbourg (European Union), states in Article 29: All disabled persons, whatever be the origin and nature of their disablement must be entitled to additional concrete measures aiming at improving their social and professional integration. These measures must concern, in particular, according to the capacities of the beneficiaries, vocational training, ergonomics, accessibility, mobility, means of transport and housing.

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The Elderly and Housing Rights General Comment No. 6: on the economic, social and cultural rights of older persons (8 December 1995) adopted by the Committee on Economic, Social and Cultural Rights recognizes: Recommendations 19 to 24 of the Vienna International Plan of Action on Ageing emphasize that housing for the elderly must be viewed as more than mere shelter and that, in addition to the physical, it has psychological and social significance which should be taken into account. Accordingly, national policies should help elderly persons to continue to live in their own homes as long as possible, through the restoration, development and improvement of homes and their adaptation to the ability of those persons to gain access to and use them (recommendation 19). Recommendation 20 stresses the need for urban rebuilding and development planning and law to pay special attention to the problems of the ageing, assisting in securing their social integration, while recommendation 22 draws attention to the need to take account of the functional capacity of the elderly in order to provide them with a better living environment and facilitate mobility and communication through the provision of adequate means of transport. International Labour Organization Recommendation No. 162 Concerning Older Workers, adopted by the General Conference of the International Labour Organization on 23 June 1980 states in Article 5(g): Older workers should, without discrimination by reason of their age, enjoy equality of opportunity and treatment with older workers as regards, in particular access to housing, social services and health institutions, in particular when this access is related to occupational activity or employment. Article 4 of the Additional Protocol to the European Social Charter, adopted on 5 October 1988 states: With a view to ensuring the effective exercise of the right of elderly persons to social protection, the States Parties undertake to adopt or encourage, either directly or in cooperation with public or private organizations, appropriate measures designed in particular ... to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of: provision of housing suited to their needs and their states of health or of adequate support for adapting their housing ... [and] to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.

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The Housing Rights of the Poor The Legal Obligation to Give Priority to the Poor General Comment No. 4 (1991) on the Right to Adequate Housing, adopted by the United Nations Committee on Economic, Social and Cultural Rights states: States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others. The Committee is aware that external factors can affect the right to a continuous improvement in living conditions, and that in many States parties overall living conditions declined during the 1980s. However, as noted by the committee in its General Comment No. 2, despite externally caused problems, the obligations found in the Covenant continue to apply and are perhaps even more pertinent during times of economic contraction. It would thus appear to the Committee that a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations found in the Covenant. Principle 14 of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights states: Given the significance for development of the progressive realization of the rights set forth in the Covenant, particular attention should be given to measures to improve the standard of living of the poor and other disadvantaged groups, taking into account that special measures may be required to protect cultural rights of indigenous peoples and minorities. There Must Be No Discrimination on the Basis of Social Status Declaration on Social Progress and Development (1969), proclaimed by UN General Assembly resolution 2542(XXIV) on 11 December 1969 states in Part II, Article 10: Social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms, through the attainment of the following main goals: â&#x20AC;Ś (f) The provision for all, particularly persons in low-income groups and large families, of adequate housing and community services. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 46

Occupied Populations and Housing Rights The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) states in Article 49: Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited regardless of their motive. Article 53 of the Fourth Geneva Convention states that: Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited. Additionally, the destruction of homes constitutes a grave breach of the Fourth Geneva Convention. Article 147 of the Convention states that: Grave breaches to which the preceding Article [Article 146] relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. (emphasis added) Guideline 17 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights addresses situations of alien domination or occupation, and states: Under circumstances of alien domination, deprivations of economic, social and cultural rights may be imputable to the conduct of the State exercising effective control over the territory in question. This is true under conditions of colonialism, other forms of alien domination and military occupation. The dominating or occupying power bears responsibility for violations of economic, social and cultural rights. There are also circumstances in which States acting in concert violate economic, social and cultural rights.

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Example: Housing Rights Violations in the Occupied Territories In 2002, Israel was chosen to receive the 2002 “COHRE Housing Rights Violator Award.” The following is an excerpt from a statement which COHRE released that year: The Government of Israel continues its practice of forced eviction and housing demolition despite international condemnation of the practice. Such acts not only constitute gross violations of human rights but also war crimes under both the Geneva Conventions of 1949 and the Statute of the International Criminal Court. It has been reported that from 28 September 2000 to 3 September 2001, that 4.994 residential building have been destroyed in the West Bank alone. Similarly, it has been reported that from April 2001 to April 2002 over 400 houses were completely destroyed, and anther 200 seriously damaged, in the Gaza Strip, leaving 5.000 persons homeless. Sources inside the country estimate that since 1948, the State of Israel has demolished more than 160.000 Palestinian homes. Scores of people have been killed during these house demolitions, and the Israeli Defence Forces have brazenly destroyed several homes with residents still inside. In 1948, the Palestinian Arab community owned and used most of the land within the State of Israel. Today it owns less than 3% of these lands. Palestinian Arab citizens’ ability to own or use the rest is severely restricted by a series of discriminatory laws and practices. Houses built outside the Israeli Government’s planning framework or without the appropriate permit are subject to demolition. Yet planning laws are enforced unequally: while illegal building is tolerated in Jewish communities, it is harshly punished among Arab communities. Thousands of Palestinians live under constant fear of their home being demolished by the Israeli authorities because they have no chance of getting a building permit -- even on land that has belonged to their families for generations. Without a permit their home is effectively illegal. While the Government of Israel often tries to justify its actions by citing grave security concerns, Israel is obligated to uphold international human rights law and international humanitarian law. War crimes committed by the Israeli Defence Forces have been well documented by human rights organizations. In the Occupied Territories, for example, this includes the wanton destruction of hundreds of homes, sometimes with the residents still inside. According to an Amnesty International delegate who entered the Jenin refugee camp on 17 April 2002. “There is total devastation, no whole standing house, as though someone has bulldozed a whole community. If anyone was in a house they could not have survived..... There is nothing but rubble and people walking around looking dazed. There is a smell of death under the rubble." Over 4.000 persons were left homeless in the Jenin refugee camp, and many others were killed as a direct result of the demolitions.

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Refugees, Asylum Seekers and Internally Displaced Persons and Housing Rights International Convention Related to the Status of Refugees (1951), adopted on by United Nations General Assembly resolution 429(V) on 28 July 1951, entered into force on 22 April 1954. This Convention states in Article 21: As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina, affords refugees and displaced persons the following rights and guarantees: 1. 2. 3. 4.

6. 7. 8.

The right freely to return to their homes of origin; The right to have property restored which was deprived during hostilities; The right to compensation for any property which cannot be restored to them; Guarantees of safety, without risk of harassment, intimidation, persecution or discrimination, particularly on account of their ethnic origin, religious belief or political opinion; The obligation of the Parties to prevent activities hindering or impeding the safe and voluntary return of refugees and displaced persons; Various confidence-building measures; Free choice of destination; and Creation of positive conditions for return.

a) The Right to Housing and Property Restitution ISSUE No. 1: The Right to Return to One’s Home With Resolution 35/124, adopted by the United Nations General Assembly on 11 December 1980, the international community reaffirmed “the right of refugees to return to their homes in their homelands.” Resolution 1998/26 (adopted on 26 August 1998) of the United Nations Sub-Commission on the Promotion and Protection of Human Rights (formerly known as the United Nations Sub-Commission on Prevention of Discrimination and Prevention of Minorities) on ‘Housing and property restitution in the context of the return of refugees and internally displaced persons,’ recognized the right of refugees and internally displaced persons to return freely to their homes and places of habitual residence Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 49

in safety and security. The resolution also recognized that this right forms an indispensable element of national reconciliation and reconstruction, and that recognition of such rights should be included within peace agreements ending armed conflicts. The resolution went on to state: The Sub-Commission on Prevention of Discrimination and Protection of Minorities, â&#x20AC;Ś 1. Reaffirms the right of all refugees, as defined in relevant international legal instruments, and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish; 2. Reaffirms also the universal applicability of the right to adequate housing, the right to freedom of movement, the right to privacy and respect for the home and the particular importance of these rights for returning refugees and internally displaced persons wishing to return to their homes and places of habitual residence; 3. Confirms that the adoption or application of laws by States which are designed to or result in the loss or removal of tenancy, use, ownership or other rights connected with housing or property, the active retraction of the right to reside within a particular place, or laws of abandonment employed against refugees or internally displaced persons pose serious impediments to the return and reintegration of refugees and internally displaced persons and to reconstruction and reconciliation; 4. Urges all States to ensure the free and fair exercise of the right to return to oneâ&#x20AC;&#x2122;s home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems; 5. Invites the United Nations High Commissioner for Human Rights, in consultation with the United Nations High Commissioner for Refugees, within her mandate, to facilitate the full implementation of the present resolution; 6. Invites the United Nations High Commissioner for Refugees, in consultation with the United Nations High Commissioner for Human Rights, to develop policy guidelines to promote and facilitate the right of all refugees and, if appropriate to her mandate, internally displaced persons, to return freely, safely and voluntarily to their homes and places of habitual residence â&#x20AC;Ś

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b) The Right to Housing and Property Restitution ISSUE No. 2: Equality, Non-Discrimination and Housing Rights Article 2(2) of the International Covenant on Economic, Social and Cultural Rights states that: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3 of the International Covenant on Economic, Social and Cultural Rights states, in addition, that: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Article 5 of the International Convention on the Elimination of Racial Discrimination obligates States to: … undertake to prohibit and to 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, … in the enjoyment of … the right to housing.

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HOUSING RIGHTS UNDER INTERNATIONAL AND REGIONAL LAW International Legal Resources on Housing Rights The legal resources listed below â&#x20AC;&#x201D; declarations, covenants and conventions â&#x20AC;&#x201D; together form the body of international law recognising housing rights. Although the legal nature of the various standards differ (just as the legal nature of a Constitution may differ from that of a municipal guideline at the national level), they are all relevant sources to refer to in support of housing rights for everyone, everywhere. In legal terms, the most powerful documents are called conventions, covenants or charters. They are legally binding treaties. Declarations and recommendations are also of vital importance, but carry less legal weight than conventions, covenants and charters. Arguments supporting housing rights, therefore, are much stronger if you can show that your country has ratified or acceded to any of the conventions, covenants or charters listed below. If your country has ratified any of these then your government has voluntarily acquired a legal obligation to fulfill the particular housing rights provisions contained in that treaty. It can be very useful to find out precisely which human rights treaties your country has ratified in order to determine their precise legal obligations. You can find a list of countries that are party to a particular treaty on our website The Universal Declaration of Human Rights (UDHR) The Universal Declaration of Human Rights is the first major international agreement on human rights. It is considered to have been the inspiration to all subsequent human rights treaties. It is also the first human rights standard to recognise housing rights. Adopted and proclaimed by the General Assembly on 10 December 1948, Article 25 of the UDHR enshrines a specific right for everyone to adequate housing: Everyone has the right to a standard living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.[ Article 25(1)]. International Covenant on Economic, Social and Cultural Rights (ICESCR) At the international level, the most significant articulation of the right to housing is found in the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR became law on 3 January 1976 and is now legally binding on more than 140 countries. The right to adequate Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 52

housing is found in article 11(1). This is the most legally significant universal codification provision recognizing this right and has been subject to the greatest analysis, application and interpretation of all international legal sources of housing rights. Although the Covenant recognises the right to housing as a part of the larger right to an adequate standard of living, under international human rights law the right to adequate housing is understood as an independent or free-standing right. The Committee on Economic, Social and Cultural Rights (CESCR) is responsible for monitoring State party compliance with the Covenant. Article 11(1) has been interpreted in detail in General Comment No. 4 on the right to adequate housing (1991) and General Comment No. 7 on forced evictions (1997). Article 11(1). The State parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and for his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. International Covenant on Civil and Political Rights (ICCPR) The International Covenant on Civil and Political Rights contains several articles that touch upon housing rights, such as the right to life and the right to be free from cruel, inhuman or degrading treatment. Article 17, however, speaks quite directly to the prohibition of forced eviction by protecting persons from unlawful or arbitrary interference with the home. The Human Rights Committee is responsible for monitoring State party compliance with the Covenant. Article 17 has been interpreted in General Comment No. 16. Article 17. (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks. Convention on the Elimination of All Forms of Racial Discrimination (CERD) The Convention on the Elimination of All Forms of Racial Discrimination became law on 4 January 1969 and is currently legally binding on 158 countries. The UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) monitors compliance with the Convention. Article 5(e)(iii). In compliance with the fundamental obligations laid down in article 2 of this Convention, State Parties undertake to prohibit and eliminate racial discrimination in all of its forma and to guarantee the right of everyone, without distinction as to race, colour, or national

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or ethnic origin to equality before the law, notability in the enjoyment of the following rights:…(e) in particular…(iii) the right to housing.

Example : The use of CERD to uphold housing rights In 1995 the Committee on the Elimination of Racial Discrimination (CERD) reviewed New Zealand's State Party report on its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee was informed that 49 per cent of Maori were accommodated in rental housing as compared with 24 per cent of the New Zealand population as a whole. The 1992 census had shown that renters tended to have lower incomes and to be young. There was also a strong link to unemployment and a higher proportion of Maori were unemployed. The Committee recommended that the New Zealand should continue to give careful consideration to the concerns expressed about proposals to settle Maori grievances and land claims, including their compatibility with respect to the provisions of the Treaty of Waitangi, the founding document of New Zealand. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) became law on 3 September 1981 and is now legally binding on 163 countries. The UN Committee on the Elimination of All Forms of Discrimination Against Women monitors State party compliance with the Convention. Article 14(2)(h). State Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right…(h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. Convention on the Rights of the Child (CRC) The Convention on the Rights of the Child became law on 2 September 1990 and is now legally binding on 191 countries. The Committee on the Rights of the Child monitors State party compliance with the Convention. Article 27(3). State Parties in accordance with national conditions and within their means shall take appropriate measure to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regards to nutrition, clothing and housing. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 54

Convention Related to the Status of Refugees (1951), adopted on by United Nations General Assembly resolution 429(V) on 28 July 1951, entered into force on 22 April 1954: Article 21. As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

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Example: Using the Convention against Torture to uphold housing rights (Acknowledgments: Bret Thiele)

Human rights advocates, including housing rights advocates, should not overlook the Convention Against Torture, as well as other instruments prohibiting torture and other cruel, inhuman or degrading treatment or punishment, in their work to prevent or remedy the practice of forced evictions. Forced evictions, as the UN Human Rights Commission affirmed in 1993, violate a range of human rights. As shelter is so integral to a safe, healthy and dignified life, forced eviction not only directly violates the right to adequate housing and the right to be free from arbitrary or unlawful interference with the home, but also jeopardizes a person’s right to life, their right to security of the person, their right to humane treatment, and their right to the highest attainable standard of health. As such, deliberate acts of forced eviction clearly constitute cruel or inhuman treatment, and under certain circumstances may amount to torture itself under international human rights law. In a monumental development, the Committee Against Torture has begun to recognize forced eviction as a violation of the Convention Against Torture. The Committee Against Torture provides two procedures open to human rights advocates, namely the individual complaint procedure and the State Party reporting procedure. Individual Complaint Procedure Under the individual complaint procedure, CAT receives complaints, or communications, from individuals or on behalf of individuals who claim to be victims of a violation by a State Party of the provisions of the Torture Convention. The Committee has found allegations of forced evictions to be admissible under this procedure. For instance, CAT recently found forced eviction to be in violation of the Convention Against Torture, and by doing so not only provided a remedy to the victims of forced eviction but also provided human rights advocates with beneficial jurisprudence. On 2 December 2002, CAT held that the forced eviction and destruction of a Romani community in Serbia and Montenegro violated the Convention, even though the eviction was not perpetrated by public officials. The case, Hijrizi v. Yugoslavia, involved the forced eviction and destruction of the Bozova Glavica settlement in the city of Danilovgrad by private residents who lived nearby. Earlier, the perpeterators threatened to “exterminate” the community and “burn down” their houses. The Danilovgrad Police Department reacted by telling the Romani community that they should evacuate the settlement immediately as they, the police, would be unable to protect them. Most of the Romani residents fled their homes, leaving a few behind to protect their housing and other possessions. During the afternoon of 15 April 1995, the non-Romani residents entered Bozova Glavica shouting slogans such as “we shall evict them” and “we shall burn down the Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 56

settlement.” The crowd soon began to break windows and set fire to the housing, resulting in the entire settlement being levelled and all properties belonging to its Roma residents completely destroyed. Several days later the debris of Bozova Glavica was completely cleared away by municipal construction equipement, leaving no trace of the community. Article 16 of the Convention Against Torture states that “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The Committee found that the Police Department did not take any appropriate steps in order to protect the residents of Bazova Glavica, thus implying acquiescence in the sense of Article 16 of the Convention, and that the burning and destruction of settlement constituted acts of cruel, inhuman or degrading treatment or punishment within the meaning of Article 16. Consequently, the Committee held that the Government of Serbia and Montenegro had violated Article 16 of the Torture Convention by not protecting the rights of the residents of Bozova Glavica. For the first time, and although the right to compensation is not expressly provided in the Convention for victims of acts of ill-treatment other than torture, the Committee concluded that the State Party should compensate the victims of this violation. State Party Reporting CAT has also criticized governments during its State Party reporting procedure. This procedure requires States Parties to submit a periodic report to the Committee on a regular basis in order to allow the Committee to monitor State Party compliance with the Convention. The Committee considered the third such periodic report of Israel in November 2001. In doing so, several members of CAT expressed concern about forced evictions and housing demolition in the occupied Palestinian territories. For instance, one member, citing 380 houses being razed in Gaza, stated that when evictions take place at night and without warning, they were tantamount to cruel and inhuman treatment in violation of Article 16 of the Convention. Similarly, a member of the Committee pointed out that in addition to being unlawful acts of collective punishment, forced evictions and housing demolition amounted to individual violations of Article 16. Yet another member, considering that the forced evictions and demolitions were carried out by the State and designed to punish, was of that opinion that they amounted to torture in violation of Article 1 of the Convention. In its Concluding Observations, the Committee’s official findings with respect to the Government of Israel’s compliance with the Convention Against Torture, the Committee warned that Israel’s policies of housing demolition Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 57

may indeed amount to cruel, inhuman or degrading treatment or punishment in violations of Article 16 of the Torture Convention. Additional International Instruments International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) State compliance with this Convention will be monitored by the UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families: Article 43(1)(d). Migrant workers shall enjoy equality of treatment with national of the State of employment in relation to...(d) Access to housing, including social housing schemes, and protection against exploitation in respect of rents. International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), adopted and opened for signature and ratification by United Nations General Assembly resolution 3068 (XXVIII) of 30 November 1973, entered into force on 18 July 1976 : Article11(b) and (d). For the purpose of the present Convention, the term “the crime of apartheid,” which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following human acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them… (b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part… (d) Any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups....the expropriation of landed property belonging to a racial group or groups or to members thereof. International Labour Organization Convention No. 117 Concerning Social Policy (Basic Aims and Standards) (1962), adopted June 1962. State compliance with this Convention is monitored by the ILO Governing Body and the ILO Committee of Experts on Conventions and Recommendations. Article 4(d). The measures to be considered by the competent authorities for the promotion of productive capacity and the improvement of living of agricultural producers shall include: (d) the supervision of tenancy arrangements and of working conditions with a view to securing for tenants and labourers the highest practicable Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 58

standards of living and an equitable share in any advantages which may result form improvements in productivity or in price levels. Articles 5(2). In ascertaining the minimum standards of living, account shall be taken of such essential family needs of the workers as food and its nutritive value, housing, clothing, medical care and education. International Labour Organization Recommendation No. 115 (1961), adopted at the forty-fifth session of the ILO Governing Body on 7 June 1961: Principle 2. It should be an objective of national [housing] policy to promote, within the framework of general housing policy, the construction of housing and related community facilities with a view to ensuring that adequate and decent housing accommodation and a suitable living environment are made available to all workers and their families. A degree of priority should be accorded to those whose needs are most urgent. Declaration on the Right to Development (1986), adopted by United Nations General Assembly Resolution 41/128 on 4 December 1986: Article 8(1). States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices.

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Regional Legal Sources on Housing Rights Several regional organizations also possess human rights law-making capacities. We have included excerpts on housing rights from legal standards of the Council of Europe the European Union and the Organization of American States and from the African Union (previously the OAU)

Council of Europe

European Convention on Human Rights and Fundamental Freedoms There are 41 States parties to the Convention. 38 countries have ratified the Protocol No.1. Thirty-one countries have ratified Protocol No. 4. Individual and group complaints alleging violations of the ECHR can be submitted to the European Court of Human Rights and Fundamental Freedoms.  Everyone has the right to respect for his private and family life, his home and his correspondence. [Article 8(1)]  Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. [Article 1(1) of Protocol No. 1 of the ECHR]  The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. [Article 1(2) of Protocol No. 1 of the ECHR]  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. [Article 2(1) of Protocol No. 4 of the ECHR states] European Social Charter The European Social Charter was adopted in 1961 and then revised and amended in 1996 to include article 31 on housing rights. State compliance with this Charter is monitored by the European Committee of Independent Experts. Housing rights provisions are also found in articles 16 and 19(4) of the Charter and within article 4 of the Additional Protocol to the Charter. 

With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: 1. to promote access to housing of an adequate standard; 2. to prevent and reduce homelessness with a view to its gradual elimination 3. to make the price of housing accessible to those without adequate resources. [Article 31 ]

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

With a view to ensuring the necessary conditions for the full development of the family which is the fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate means. [Article 16 ]



With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Contracting Party, the Contracting States undertake … (4) to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters … (c) accommodation. [Article 19]



With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular: to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of: (a) provision of housing suited to their needs and their state of health or of adequate support for adapting their housing. [Article 23]



With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake: a. to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance [Article 30]



With a view to ensuring the effective exercise of the right of elderly persons to social protection, the States parties undertake to adopt or encourage, either directly or in cooperation with public private organizations, appropriate measures designed in particular to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of: provision of housing suited to their needs and their states of health or of adequate support for adapting their housing [and] to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution. [Article 4 of the Additional Protocol to the European Social Charter]

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European Union Community Charter of Fundamental Social Rights (1989) 

All disabled persons, whatever be the origin and nature of their disablement must be entitled to additional concrete measures aiming at improving their social and professional integration. These measures must concern, in particular, according to the capacities of the beneficiaries, vocational training, ergonomics, accessibility, mobility, means of transport and housing. [Article 29]

Organization of American States Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) otherwise known as the “Protocol of San Salvador,” represents the first legally binding InterAmerican initiative completely devoted to economic, social and cultural rights. The Protocol of San Salvador recently came into force after Costa Rica deposited its ratification on 16 November 1999. It should be noted, however, that this instrument makes no direct mention of either the right to property, nor to the right to housing. However, certain Articles of the Protocol of San Salvador are relevant to these rights, and as such may be invoked when pursuing housing rights claims within the Inter-American system. 

…although fundamental economic, social and cultural rights have been recognized in earlier international instruments of both world and regional scope, it is essential that those rights be reaffirmed, developed, perfected and protected in order to consolidate in America, on the basis of full respect for the rights of the individual, the democratic representative form of government as well as the right of its peoples to development, selfdetermination, and the free disposal of their wealth and natural resources [Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) Preamble



Everyone shall have the right to live in a healthy environment and to have access to basic public services. [Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988), Article 11]

Charter of the Organization of American States (1948) 

To accelerate their economic social development, in accordance with their own methods and procedures and within the framework of the democratic principles and the institutions of the Inter-American System, the Member Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 62

States agree to dedicate every effort to achieve the following goals…(k) Adequate housing for all sectors of the population. [Article 34 (k)] American Declaration on the Rights and Duties of Man (1948) adopted at the Ninth International Conference of American States at Bogota on 1948: 

Every person has the right to fix his residence within the territory of the state of which he is a national, to move about freely within such territory, and not to leave it except by his own will. [Article 8]



Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care to the extent permitted by public and community resources. [Article 11]



Every person has the right to own such property as meets the essential needs of decent living and helps maintain the dignity of the individual and of the home. [Article 23]

The Organization of African Unity

The African Union (AU) is the regional organisation for Africa and was established in July 2001 at the 37th summit of the African Union. The Organisation of African Unity (OAU) was founded in 1963 to advocate for the political independence of African states, economic development of the continent, and peace. The African Union is the OAU’s successor organization established by the Constitutive Act of African Union. Agreements reached under the OAU apply now under the AU. African [Banjul] Charter on Human and Peoples’ Rights (1981), adopted on 27 June 1981. 

The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. [Article 14]

African Charter on the Rights and Welfare of the Child (1990): 

States Parties …shall in accordance with their means and national conditions take all appropriate measures (a) to assist parents and other persons responsible for the child and in case of need provide material assistance and support programmes particularly with regard to nutrition, health, education, clothing and housing. [Article 2(a)]

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Example: Excerpt From the African Commission on Human and Peoples’ Rights, with regard to Communication 155/96: The Communication (original petition submitted by the Social and Economic Action Rights Centre - SERAC and the Center for Economic and Social Rights - CESR) alleges that the military government of Nigeria has been directly involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations have caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People. … The Commission notes that in the present case, despite its obligation to protect persons against interferences in the enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article 21 of the African Charter. … Although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article 16 above, 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. It is thus noted that the combined effect of Articles 14, 16 and 18(1) reads into the Charter a right to shelter or housing which the Nigerian Government has apparently violated.

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International Humanitarian Law Standards The 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949): 

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited regardless of their motive. [ Article 49]



Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited. [Article 53]



Grave breaches to which [Article 146] relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. [Article 147]

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977) 

The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.



Civilians shall not be compelled to leave their own territory for reasons connected with the conflict. [Article 17]

Examples: The right to humanitarian assistance during armed conflict  Human rights law has been increasingly interpreted as implying a right to humanitarian assistance for victims of armed conflict. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 65

 People have a right to humanitarian assistance in times of armed conflict both from their own State and the international community.  There is an emergent obligation to intervene in circumstances resulting in the massive denial and/or violation of economic, social and cultural rights. Mr. Francis Deng, the United Nations Special Representative to the SecretaryGeneral on Internally Displaced Persons, has echoed this view by asserting that “any government that fails to provide the most fundamental rights for major segments of its population can be said to have forfeited sovereignty and the international community can be said to have a duty in those instances to re-establish it.”

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THE OBLIGATIONS OF THE STATE The State’s obligations in relation to ESC rights in general

Respect, protect and fulfil Like civil and political rights, ESC rights impose three different types of obligations on States:  to respect (i.e. the state must not interfere with the enjoyment of ESC rights)  to protect (i.e. the state must prevent violations by third parties)  to fulfil. (i.e. the state must take appropriate legislative, administrative, budgetary and judicial measures to realize ESC rights)

Obligations of conduct and of result The obligations to respect, protect and fulfil each contain elements of obligation of conduct and obligation of result. The obligation of conduct means that the state must take actions reasonably calculated to realize the enjoyment of a particular right. In the case of the right to health, for example, the obligation of conduct could involve the adoption and implementation of a plan of action to reduce maternal mortality. The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard. With respect to the right to health, for example, the obligation of result requires the reduction of maternal mortality to levels agreed at the 1994 Cairo International Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women. (See Maastricht Guidelines on ESC Rights, no 7 & 8) Margin of discretion As in the case of civil and political rights, States enjoy a margin of discretion in selecting the means for implementing their respective obligations. The fact that the full realization of most economic, social and cultural rights can only be achieved progressively does not alter the nature of the legal obligation of States. Certain steps must be taken immediately and others as soon as possible. The burden is on the State to demonstrate that it is making measurable progress toward the full realization of the rights in question. The State cannot use the "progressive realization" provisions in article 2 of the Covenant as a pretext for non-compliance. Nor can the State justify derogations or limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds.

Minimum core obligations State practice and the application of legal norms to concrete cases and situations by international treaty monitoring bodies as well as by domestic courts have contributed to the development of universal minimum standards and the Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 67

common understanding of the scope, nature and limitation of economic, social and cultural rights. Violations of the Covenant occur when a State fails to satisfy what the Committee on Economic, Social and Cultural Rights has referred to as "a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights [...]. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, violating the Covenant." Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties. (Maastricht Guidelines 9) Housing rights must be broadly interpreted In the Committee's view 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. This is appropriate for at least two reasons. In the first place, the right to housing is integrally linked to other human rights and to the fundamental principles upon which the Covenant is premised. Thus, "inherent dignity of the human person" from which the rights in the Covenant are said to derive requires that the term "housing" be interpreted so as to take account of a variety of other considerations, most importantly that housing rights should be ensured to all persons irrespective of income or access to economic resources. Secondly, the reference in article 11(1) must be read as referring not to housing tout court but to adequate housing. As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: 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.(General Comment 4, para. 7) Obligations begin immediately after ratification Regardless of the state of development of any country, there are certain steps which must be taken immediately. As recommended in the Global Shelter Strategy and in other international analyses, many of the measures required to promote the right to housing require only abstention by the Government from certain practices and a commitment to facilitate "self-help" by affected groups. To the extent that any such steps are considered to be beyond the maximum resources available to a State party, it is appropriate that a request be made as soon as possible for international cooperation in accordance with articles 11(1), 22 and 23 of the Covenant, and that the Committee is informed thereof. (General Comment 4, para. 10) Obligations include the duty to take steps now While the most appropriate means for achieving the full realization of the right to adequate housing will inevitably vary significantly from one State party to another, the Covenant clearly requires that each State party take whatever Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 68

steps are necessary for that purpose. This will almost invariably require the adoption of a national housing strategy which, as stated in the Global Shelter Strategy, "defines the objectives for the development of shelter conditions, identifies the resources available to meet these goals and the most costeffective way of using them and sets out the responsibilities and time-frame for the implementation of the necessary measures" (para. 32). Both for reasons of relevance and effectiveness, as well as in order to ensure respect for other human rights, such a strategy should reflect extensive genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives. Further, steps should be taken to ensure co-ordination between ministries, regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy and so forth) with the obligation arising from article 11 of the Covenant. (General Comment 4, para. 12) The Vancouver Declaration on Human Settlements (1976), adopted by the UN Conference on Human Settlements in 1976 has this to say: Adequate shelter and services are a basic human right which places an obligation on governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided programmes of self-help and community action. Governments should endeavour to remove all impediments hindering attainment of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through the creation of better balanced communities, which blend different social groups, occupations, housing and amenities. (Sec. III(8) ..... The ideologies of States are reflected in their human settlement policies. These being powerful instruments for change, they must not be used to dispossess people from their homes or land or to entrench privilege and exploitation. The human settlement policies must be in conformity with the declaration of principles and the Universal Declaration of Human Rights.(Chap. II (A.3))

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The Obligation To Respect The Right To Adequate Housing The State must 1. Respect the right to popular participation throughout the housing sphere, including the right of citizens to influence and decide upon any housing laws or policies; 2. Respect the rights to organize, assemble and associate, particularly with regard to tenants organizations, community-based organizations and housing cooperatives; 3. Provide legal protection from forced or threatened eviction or house demolitions; 4. Respect the right to equality of treatment, particularly in terms of the allocation of housing resources, access to housing finance and resident permits; 5. Respect the right to privacy, including the protection from arbitrary searches of residences; 6. Respect the right to be free from racial discrimination, particularly in the housing allocation process; 7. Be tolerant of and promote housing-related freedoms, including the right to self-help housing initiatives; 8. Ensure respect for cultural attributes of traditional housing construction methods, the protection of housing of historical significance; 9. Refrain from coercive measures forcing another State to violate housing rights.

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10.

The obligation to Protect and Promote Housing Rights

States Parties have an obligation to protect and promote Housing Rights. This means they mustâ&#x20AC;Ś 1. Take immediate steps to ensure that violations of housing rights standards by the State and its agents are prevented from occurring; 2. Take immediate steps to ensure that violations of housing rights by third parties, including protection from abuse by landlords, are prevented; 3. Make available impartial legal remedies in cases of alleged violations of housing rights 4. Provide comprehensive security of tenure throughout all housing sectors, applicable to all citizens 5. Take active measures to protect all persons against racial or other forms of discrimination, harassment and the withdrawal of services 6. Ensure that housing is affordable for all income groups in society. Housing costs should never be allowed to rise to levels preventing dwellers from accessing and satisfying other basic needs 7. Regulate rent levels and provide housing subsidies to ensure compliance with the affordability principle 8. Actively protect the overall habitability and physical safety of dwellers, with particular regard to protecting dwellers from cold, damp, heat, rain, wind or other threats to health, structural hazards and disease vectors 9. Build housing near to employment options, schools, health care centres and open spaces. Conversely, housing should not be built in dangerous areas where threats to environmental health and hygiene exist 10. Respond constructively to housing rights violations, wherever they occur, both domestically and in other countries 11. Without delay, review all laws, policies, regulations or other directives having any bearing on the fulfilment of housing rights 12. Recognise the right to adequate housing, both in legislation policy 13. Target policies towards ensuring the full realization of housing rights in the shortest possible time frame for all sectors of society

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14. Establish and apply benchmarks to monitor societal housing needs, including the use of appropriate indicators 15. Develop and implement a national housing strategy 16. Prioritise targeted strategies towards satisfying the housing needs of disadvantaged groups, including the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters and people living in disaster-prone areas 17. Ensure full access to housing resources by all ethnic, racial, national, minority or other social groups The Obligation to Fulfil Housing Rights States Parties have an obligation to fulfil Housing Rights. This means they mustâ&#x20AC;Ś 1. Devote a reasonable proportion of public expenditure to housing, consistent with social housing requirements 2. Establish housing subsidies for tenants and first-time home buyers, as well as the effective housing finance measures for low-income groups 3. Ensure that public agencies construct, maintain and finance public housing 4. Provide public services, including infrastructure, water, electricity, sanitation, heating, sewage, draining, roads, health care facilities and emergency services 5. Actively support those persons, families and groups unable to satisfy their housing needs by individual efforts 6. Promote natural and/or indigenous building materials for use in the housing process 7. Industrialized countries should provide a proportion of their overseas developmental assistance towards assisting developing countries in satisfying housing rights obligations 8. Provide adequate housing accommodation for all refugees and asylum seekers within a State's borders

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Obligations of Non-State Actors Traditional views of human rights law distinguish between public and private actors. This once widely accepted dichotomy, however, has become blurred such that private actors (often in conjunction with the State) may now be deemed liable for violations of economic, social and cultural rights. Human rights law has irrevocably entered the private domain. The potential impact of actions by third parties to the overall satisfaction of economic, social and cultural rights is substantial, and perhaps even more so than with regard to civil and political rights. Employers, corporations, landlords, teachers, doctors and any other citizen capable of violating an individual's rights due to neglect or encouragement by the State are increasingly being held accountable as notions of State responsibility expand beyond traditional confines. Examples of private individuals and bodies not respecting Housing rights ď&#x201A;ˇ Landlords evicting tenants from their homes without a good reason and a court order ď&#x201A;ˇ Banks refusing to extend housing finance to people who live in low-income areas because of their race or social status ď&#x201A;ˇ Industries polluting the water supply of communities

International Financial and Other Institutions The World Bank and IMF exert considerable influence over the policy-making (and sometimes law-making) process in borrower countries; yet pay lip service at best to human rights obligations held either by States or these institutions themselves (pursuant to articles 55 and 56 of the Charter). These institutions, as UN entities and subjects of international law, must be considered as bound by its normative framework. The policies of the international financial institutions have resulted in substantial violations of economic, social and cultural rights within a range of developing nations, particularly the poorest countries with the least economic or political leverage. Indirect violations of civil and political rights also may occur in the context of structural adjustment programmes or large-scale project financing. Trans-National Corporations (TNCs) Of the 100 largest economies in the world, 51 are not nation-states, but transnational corporations. States are obliged to ensure that private entities or individuals, including transnational corporations, over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 73

rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors.(MG18)

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Areas for action towards the full and progressive realization of housing rights UN-HABITAT and OHCHR, Nairobi and Geneva, March 2003

Action Respect

Areas

Protect

Fulfil

Legal framework and monitoring



International and national norms, standards and guidelines  Need for reporting on violations and progress in realization of housing rights  Measures against retrogressively



Benchmarks of progressive realization and compliance of domestic measures with international level  Mechanisms for monitoring and evaluation at the local, national and global levels

 

Tenurial arrangements



Need for residential stability



Security of tenure  Measures to eliminate forced evictions  Tenant / landlord relations organized by law  Equal rights of all to inheritance, ownership and control of land and property



Homelessness



Rights and needs of homeless people



Specific measures and programmes for homeless people



Popular participation and involvement of stakeholders



Need for information exchange and advocacy  Expression of needs and preferences  Need for cooperation and



Access to information on all aspects of housing  Roles and responsibilities of all stakeholders and effective



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Legal reforms Comprehensive policies incorporating requirements of a rights based approach  Prevention of violations of housing rights  Facilitation of restitution and compensation measures in cases of violations Improvement of cadastral systems  Improvement of land and property registration  Appropriate management of housing stocks

Eradication of homelessness

Participatory approaches in development and management of housing  Formulation and implementation of effective enabling

Social integration

Sustainable housing development

coordination between stakeholders

cooperation

policies and strategies

Measures against discrimination  Specific needs of women, people living in poverty, disadvantaged and vulnerable groups



Affirmative action targeting women, people living in poverty, disadvantaged and vulnerable groups  Measures integrating all social groups in neighbourhoods and cities



  

Diversity of housing needs Privacy Need for improved access to housing resources (such as land, finance, building materials and services)



Adaptability to diverse needs and conditions Cultural adequacy

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Provision of housing to people with special needs  Inclusive communities and cities



Contributions towards an adequate standard of living for all Effective and efficient housing markets Adequate housing supply, including rental options

NATIONAL HOUSING RIGHTS LAW Constitutional Recognition of Housing Rights Some 70 national Constitutions address housing issues. Thus, approximately 39 per cent of the world’s Constitutions refer to housing or housing rights. Some examples are:  Everyone has the right to enjoy a life in conformity with human dignity ... These rights include, in particular, the right to adequate housing.(Article 23(3), Belgium)  All Hondurans have the right to decent housing. The State shall design and implement housing programmes of social interest. (Article 178, Honduras)  Every family has the right to enjoy decent and proper housing. The law shall establish the instruments and necessary supports to reach the said goal. (Article 4, Mexico)  Nicaraguans have the right to decent, comfortable and safe housing that guarantees familial privacy. The State shall promote the fulfilment of this right. (Article 64, Nicaragua)  Everyone shall have the right for himself and his family to a dwelling of adequate size satisfying standards of hygiene and comfort and preserving personal and family privacy. (Article 65(1), Portugal)  Each person has the right to housing. No one may be arbitrarily deprived of housing. (Article 40(1), Russia)  Everyone has the right to have access to adequate housing. The state must take reasonable progressive legislative and other measures to secure this right. (Article 26(1), South Africa)  The State shall by law, and for the common good, undertake, in cooperation with the private sector, a continuing programme of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centres and resettlement areas. (Article 13(9), Philippines)  All Spaniards have the right to enjoy decent and adequate housing. (Article 47, Spain)

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National Laws and Housing Rights Legislative measures provide for the practical implementation of the different aspects of the right to adequate housing at the national level, and are thereby critical to their effective protection. National level housing rights protections may be manifest legally in any number of ways. Each of these legal regimes provides a framework for determining the overall status of legislative protection and promotion of housing rights at the national level:                 

Housing Acts Rent and Rent Restriction Legislation Specific Housing Rights Legislation, Including Homeless Person Acts Landlord-Tenant Law Urban Reform Laws Security of Tenure Legislation Civil & Criminal Codes Land Use, Zoning and Agrarian Laws Planning Laws and Regulations Building Codes and Standards Laws Relating to Inheritance Rights for Women Land Acquisition and Expropriation Acts Non-Discrimination Equality Rights Eviction Laws Development Laws Environmental Standards

Examples of National housing rights case law, Case law from one country is often used as interpretive guides and indeed persuasive authority in another country dealing with the same issue. With respect to international human rights law, comparative case law is particularly valuable in this regard as courts are dealing with the same legal principals and clauses. The United States Has Had Some Good Cases:  In the Mt. Laurel Case (1982) the New Jersey Supreme Court stated that “there cannot be the slightest doubt that shelter, along with food, are among the most basic human needs.... It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare.”12 1 See also two similar court rulings in Canada finding that local zoning by-laws for group homes were discriminatory and in violation of the Canadian Charter of Rights and Freedoms. (Globe

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 In what is seen by some analysts as one of the most successful homeless rights cases in the US, and the first to recognize a right to shelter, the 1979 case of Callahan v. Carey, a class-action suit was filed on behalf of homeless men on the Lower East Side of New York City, demanding that the city provide shelter to any man who asked for it based on provision of the New York State Constitution, sections of the state’s Social Services Law and the New York Administrative Code. The New York Supreme Court granted a temporary injunction that required New York City to furnish a sufficient number of beds to meet the needs of all homeless men applying for shelter.13 The Court thus recognized a legal right to shelter (but not housing a human right) and set forth minimum standards for operating existing and new shelters.14 India Has Had Some Much Better Cases:  In Francis Coralie v. Union Territory of Delhi (AIR 1981 SC 746), Justices Bhagwati and Murtaza Fazal Ali pronounced “The fundamental right to life which is the most precious human right and which forms the arc of all other rights must, therefore, be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bear necessities of life such as adequate nutrition, clothing, and shelter over the head.”15  In the celebrated Indian case, known colloquially as the ‘Bombay Pavement Dwellers Case’, the Court did expand the protection of Article 21, however, it did allow the eventual eviction of the pavement dwellers. In Olga Tellis v. Bombay Municipal Corporation (1985, 3 SCC 545), a Constitutional bench of the Supreme Court declared that “Eviction of Petitioners from their dwellings would result in the deprivation of their livelihood. Article 21 includes livelihood and so if the deprivation of livelihood is not effected by a reasonable procedure established by law, the same would violate Article 21.” The Court continued, stating: The right under Article 21 is the right to livelihood, because no person can live without the means of living i.e. the means and Mail (21 July 1990). 2 Christine Robitscher Ladd (May 1986) “A Right to Shelter for the Homeless in New York State” in New York University Law Review, pp. 272-299. 3 Case No. 79-42582 (Sup. Ct. N.Y. County, Aug. 26 1981), as considered in: Geoffrey Mort (1984) “Establishing a Right to Shelter for the Homeless” in Brooklyn Law Review, vol. 50, 939. 4 Francis Coralie v. the Union Territory of Delhi, (AIR 1981, SC 746).

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of livelihood. If the right to livelihood is not treated as a part of the Constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.... There is thus a close nexus between life and means of livelihood. And as such that which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life.16  A year later in another case, the Supreme Court made it clear to the Delhi Development Authority (DDA) that even if a person is in unauthorized possession of land or has built on it without authority, he cannot be evicted without authority of law. The case, which involved the demolition of eight huts in the Jagamata leprosy ashram, for which the DDA was ordered by the Court to give the evicted patients alternative accommodation within a two week period.17 In Ram Prasad v. Chairman, Bombay Port Trust, the Supreme Court directed the relevant public authorities not to evict 50 slum dweller families unless alternative sites were provided for them.18  In another housing rights case in 1990 the same Court gave a sweeping definition to the right to life clauses of the Indian Constitution, deciding that: Basic needs of man have traditionally been accepted to be free -- food, clothing and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.... For a human being [the right to shelter] has to be a suitable accommodation which would allow him to grow in every aspect--physical, mental and intellectual.... A reasonable residence is an indispensable necessity for fulfilling the Constitutional goal in the matter of development of man and should be taken as included in ‘life’ in Article 21.19 South Africa’s Grootboom Case:

5 Olga Tellis v. Bombay Municipal Corp. (1985), SCC 545. 6 See: “DDA’s demolition of leper huts illegal: SC” in Indian Express (New Delhi edition), 3 July 1986. 7 Decided on 29th March 1989, AIR 89 SC, 1306. 8 Shanti Star Builders v. Naryan Khimalal Totame & Ors (JT 1990 (1) S.C. 106, Civil Appeal No. 2598 of 1989).

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

The Republic of South Africa and others v. Grootboom and others20 is a landmark decision of South Africa’s Constitutional Court, delivered in 2000, concerning the role of the State in providing “relief for people who have no access to land, no roof over their heads and who are living in intolerable conditions or crisis situations.” The case also diminished the perception of some that the highest court of the land was solely for the benefit, protection and use of the powerful. The background to the case concerns Ms. Irene Grootboom and a group of squatters in Wallacedene who were evicted from land earmarked for low-cost housing development. In the course of the eviction, their structures were demolished and building materials destroyed. In amici curiae brief submitted by the South African Human Rights Commission and the Community Law Centre argued that the Court should follow the approach of the UN Committee on Economic, Social and Cultural Rights, according to which socio-economic rights are found to contain minimum core obligations, and these require the satisfaction of minimum essential components of the right to adequate housing.

The Constitutional Court ultimately made a declaratory judgment requiring the State to meets its obligations under Section 26(2) of the Constitution, which protects the right of access to adequate housing “within its available resources, [and] to achieve the progressive realisation of this right.” The Court noted, however, that the “availability of resources” clause did obligate the State to immediately carry out “effective implementation [which] requires at least adequate budgetary support by national government. This, in turn, requires recognition of the obligation to meet immediate needs in the nationwide housing programme. Recognition of such needs in the nationwide housing programme requires it to plan, budget and monitor the fulfilment of immediate needs and the management of crises.” With respect to the “progressive realization” clause, the Court, using the meaning provided to the clause in the International Covenant on Economic, Social and Cultural Rights, opined that “the goal of the Constitution is that the basic needs of all in our society be effectively met and the requirement of progressive realisation means that the state must take steps to achieve this goal. It means that accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time. Housing must be made more accessible not only to a larger number of people but to a wider range of people as time progresses.” The Court thus declared that the State’s programme to realise this right must include reasonable measures to provide relief to The Republic of South Africa and others v. Grootboom and others, Sup. Ct. of the Rep. of So. Africa, 2000 (3) BCLR.

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persons living in intolerable conditions or crisis situations.

THE JUSTICIABILITY OF HOUSING RIGHTS Introduction: Right to a Remedy The right to adequate housing, including the right to be protected from forced eviction, has increasingly been the subject of judicial and quasi-judicial review at the international, regional and national levels. While some commentators and governments claimed for some time that housing rights were not justiciable, as long ago as 1948, the Universal Declaration of Human Rights recognised that there was a right to a remedy for violations of all human rights. Article 8 says, Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Therefore, access to justice should be viewed as an integral part of the right to housing. Canadian housing rights advocate, Bruce Porter, has captured the importance of procedural and substantive remedies for victims in the following statement: When someone calls me up because they lost their children because of governmentâ&#x20AC;&#x2122;s refusal to provide emergency assistance or adequate shelter, isnâ&#x20AC;&#x2122;t this a human rights issue? When people see things and feel them and understand them as human rights issues, you claim them as rights.21 The provision of both individual and collective remedies is also critical for redressing systematic violations of housing rights. What is justiciability? Justiciability normally means two things. First, the ability of court to apply a certain law to a certain situation. Secondly, the right of a person (or entity) to request that the court make such a ruling. This latter right is often called the right to have standing before the court or other similar body. In traditional discussions over economic, social and cultural rights, it was often claimed that these rights were not inherently justiciable.22 This was firstly 21

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003) at p.79. Available at www.cohre.org/litigation 22 For a detailed review of these arguments see, in English, Craig Scott and Patrick Macklem,

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argued on the basis of judicial capacity. It was claimed that economic, social and cultural rights were too complex (or too vague) for judicial adjudication. The second argument was more principled, as well as fundamental to many constitutions: That courts cannot adjudicate on economic, social and cultural rights since they will be making social policy which is the right of the government, in the form of the executive and parliament. This is the legitimacy argument. Similar objections are made to the decisions of international human rights bodies. However, theory and practice has shown these two assumptions to be wrong. As this Manual has shown, housing rights do have a precise legal content and courts have demonstrated the capacity to make reasonable rulings on all aspects of housing rights. The South African Constitutional Court stated in 2000: Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only…. and the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis.23 This Court in the subsequent four years went onto to give a variety of judgments on housing rights, including access to emergency housing assistance and protection from forced evictions – see Box 1. The case law also shows that Courts are often very sensitive to the policy-making prerogatives of the Parliament and Executive branches of governments, but that they will impose restrictions on that policy and legislative making power to make sure it complies with economic, social and cultural rights. What aspects of housing rights are justiciable? Earlier writings and interpretations on housing rights attempted to identify, even if not conclusively, the various justiciable components. COHRE has often stated for example that any judge can rule upon the following aspects of housing rights:      

Forced Evictions and Demolition Security of Tenure Non-discrimination and Equality of Access Housing Affordability Landlord-Tenant Relations Access to Services

‘Constitutional Ropes of Sand or Justiciable Gurantees? 141 U. Pa. L. Rev. 1 at 66. In Spanish, see Gerardo Pisarello, ‘Los derechos sociales en el constitucionalismo moderno: por una articulación compleja de la relaciones entre política y derecho’ [Social rights in modern constitutionalism: for a complex atriculation of the relations between politics and law], in M. Carbonell, J.A. Cruz Parcero and R. Vazquez (ed.), Derechos sociales y derechos de los minorías, (Mexico: Porrua-UNAM, 2001), at pp.113-138 23 Government of the Republic of South Africa v Grootboom and Others 2000 (11) BCLR 1169 (CC).

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    

Property Rights The Substantive Right to Accommodation The Right to Counsel and Legal Aid The Right to Participation The Right to Habitable Housing

The UN Committee on Economic, Social and Cultural Rights views many component elements of the right to adequate housing as being consistent with the provision of domestic legal remedies. In other words, domestic courts and administrative tribunals already entail procedures that victims or potential victims of housing rights violations can access in order to enforce their rights. For instance, General Comment No. 4 (1991) of the United Nations Committee on Economic, Social and Cultural Rights on the Right to Adequate Housing states: Depending on the legal system, such areas might include, but are not limited to:   

 

Legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions; Legal procedures seeking compensation following an unlawful eviction; Complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance and racial or other forms of discrimination; Allegations of any form of discrimination in the allocation and availability of access to housing Complaints against landlords concerning unhealthy, unsafe or otherwise inadequate housing conditions. In some legal systems, it would also be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness. (General Comment 4)

However, it has been increasingly recognised that Courts and international mechanisms are able to rule on all aspects of housing rights, although the nature and scope of the judgment will vary according to the circumstances.24 Professor Matthew Craven sums up what he believes as the core issue, or core obstacle, to justiciability as follows: Justiciability depends not upon the generality of the norm concerned, but rather on the authority of the body making the decision.25

See for example, Craig Scott and Patrick Macklem, ‘Constitutional Ropes of Sand or Justiciable Gurantees? 141 U. Pa. L. Rev. 1 and Malcolm Langford ‘Judging Resource Availability’ in Malcolm Langford and Bret Thiele (ed.), Current Issues in the Litigation of Economic, Social and Cultural Rights (University of NSW Press, 2005). 25 Matthew Craven, ‘The Domestic Application of the International Covenant on Economic, Social and Cultural Rights’, Netherlands International Law Review, Vol. XL, 1993 at p.389.

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This analysis also takes us back to the original definition of justiciability. If a Court has the power to rule on a right, then it is justiciable. But it is important to note that the injustice suffered by a claimant should (and often does) play an important role in judicial determinations over the content of a human right. Professor Craven has noted that development of legal concepts of justiciability could sometimes block legitimate human rights claims: The silencing of the victim may occur, in other words, even in contexts in which the dispute is overtly amenable to judicial determination, but in which the victim is forced to represent their claim in a language that either distorts or denies the substance of their claim.26 Box 1: The fight for remedies: The Grootboom Case27 In early 1999, the ‘Grootboom community,’ members of a shantytown just outside Cape Town, boarded buses each day for the High Court. Forcibly evicted from nearby private property, they lived on the perimeter of a sports field, with no water, no sanitation, no security of tenure. ‘Our structures were simply bulldozed, and there was no opportunity for us to salvage our personal belongings,’ said one resident. The High Court was told that the right to housing in the South African Constitution entitled the community to something better. While an interim settlement provided for water, sanitation and some aluminium sheets for shelter, the case wound its way up to the Constitutional Court. This court faulted the Government for failing to include provisions for emergency relief in its housing programme, but stopped short of declaring an immediate right to shelter. The judgement was hailed a triumph. The carefully reasoned decision recognised that socio-economic rights carried legal duties. Government policy was closely scrutinised, and subsequent cases have built on the Grootboom precedent, some of the cases have been highly effective. But two years later, the mood was more sombre. The leader of the community told a visiting COHRE team, ‘We won the championship, but where’s the trophy?” Land would be made available only in 2005, and the judgement made no provision for further review of housing policy. The Ministry of Housing has now dedicated a portion of its budget to emergency housing assistance.

See Matthew Craven ‘Assessment Of The Progress On Adjudication Of Esc Rights’, in Malcolm Langford and Bret Thiele (ed.), Current Issues in the Litigation of Economic, Social and Cultural Rights (University of NSW Press, 2005). 27

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003) at p.9. Available at www.cohre.org/litigation

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What are remedies? National courts can offer many remedies, such as:    

    

Declaring a violation and ensuring that a given result is achieved A time-delayed provisional remedy A structured, participatory process to recommend final remedies Ordering the creation of a regulatory regime in which measures are actually specified as being necessary to solve a defined and concrete problem Ordering a government committee of inquiry to report on the situation prior to litigation Preventative damages, including injunctive relief Reparation in kind Supervisory jurisdiction Orders to enact legislation

International courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, are able to impose wide-ranging remedies that are legally binding on the defending State party. However, these courts seem to have limited jurisdiction on housing rights, partly due to self-imposed conservative interpretations of their respective mandates. International committees and commissions which are empowered to hear individual and collective complaints on economic, social and cultrual rights usually make non-binding decisions or recommendations, for example the African Commission on Human and Peoples’ Rights or the Committee on the Elimination of Discrimination Against Women. Nevertheless, these decisions carry authoritative weight. Do governments have to provide remedies? Pacta sunt servanda is a legal principle, which means that States are under a legal obligation to perform their treaty obligations in good faith.28 This means that States must adjust their domestic legal structure to comply with the international standards – for example the International Covenant on Economic, Social and Cultural Rights – to which they have committed themselves.

Article 26 of the Vienna Convention on the Law of Treaties (1969) states that “[e]very treaty in force is binding upon the parties to it and must be performed in good faith.’ Further, States cannot justify their failure to implement international obligations on the basis of a domestic law, which is inconsistent with the international norm. The Vienna Convention on the Law of Treaties (1969) says in Article 27: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ Therefore, the obligation to perform treaties in good faith applies, as far as international law is concerned, irrespective of any conflicting domestic law

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If a State party to this Covenant does not provide remedies for violations of ESC rights, the UN Committee on Economic, Social and Cultural Rights has said it carries the burden of justifying this position.29 Applying the Covenant in national courts General Comment 9, of the UN Committee on Economic, Social and Cultural Rights offers important guidance on the application of the Covenant in national courts. 

It argues that remedies do not have to be judicial in nature (e.g., Administrative remedies can be effective) but says that judicial remedies are necessary whenever a Covenant right cannot be made fully effective without some role for the judiciary.



There is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions



Courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.



When Governments are involved in court proceedings, they should promote interpretations of domestic laws, which can give effect to their Covenant obligations… It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms, which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.

It is generally accepted that domestic law should be interpreted as far as possible in a way, which conforms to a State’s international legal obligations. Thus, when a domestic decision-maker is faced with a choice between an interpretation of domestic laws that would place the State in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter. 29

[A] State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not "appropriate means" within the terms of article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the Committee considers that, in many cases, the other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies. ‘ See Committee On Economic, Social And Cultural Rights, General Comment No. 9 (1998) The domestic application of the Covenant, at para. 3.

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Box 2: Reviewing Canada’s Performance on Applying the Covenant in Courts 30 During its periodic review of Canada’s performance under the International Covenant on Economic, Social and Cultural Rights, the monitoring body faulted Canada for the positions taken by provincial governments and courts in various cases. The Committee said that ‘Provincial governments have urged upon their courts in these cases an interpretation of the [Canadian] Charter which would deny any protection of Covenant rights and consequently leave the complainants without the basic necessities of life and without any legal remedy.’ The cases were brought by people living in poverty (usually women with children) against government policies which them and their children adequate food, clothing and housing. The Committee expressed deep concern at the result that ‘provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights.’ They also said, ‘[the] Committee notes with concern that the courts have taken this position despite the fact that the Supreme Court of Canada has stated, as has the Government of Canada before this Committee, that the Charter can be interpreted so as to protect these rights.’ What are some examples of cases? There has been case law on virtually every aspect and element of the right to housing set out in General Comment No. 4 and No.7. This section will provide a few examples under the headings of non-discrimination and equality and the obligations to respect, protect and fulfil. Non-Discrimination and Right to Equality Many housing rights violations can be traced to conduct that discriminates on prohibited grounds, for example race or sex. Discrimination might be direct, it might be expressly stated in law for example. In ERRC v Greece, the claimants objected to a law that was dedicated to the removal of a minority group, the Roma.31 Discrimination might be indirect and States are then obliged to eliminate practices and policies with have a discriminatory effect or impact.32 Indirect discrimination might include for example a requirement that rent for prospective tenants be no more than a third of income as the Kearney case in Box 3 illustrates. Lastly, the duty to take positive steps towards

See Concluding observations of the Committee on Economic, Social and Cultural Rights : Canada. 10/12/98, E/C.12/1/Add.31 31 See European Committee on Social Rights, ERRC v Greece, Complaint No. 15 (Decision expected in April 2005). 32 See for example, Article 1, Convention on the Elimination of all Forms of Racial Discrimination

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ensuring substantive equality – including the policy of affirmative action – has been made justiciable in a number of cases. 33

Box 3. Right to Housing Equality Cases A Canadian human rights commission in Kearney v Bramlea examined whether the use of a 30 per cent rent-to-income ratio to screen prospective tenants discriminatory impact on groups with lower incomes: namely women, single people, racial minorities and those receiving public assistance.34 The applicants firstly demonstrated that the rule could not be objectively justified: there was no evidence to show that poorer tenants were more likely to default if they paid higher rents, even though such rents were ’unaffordable’. The application of the rule in the tenancy market was found to indirectly discriminate on the basis of sex, marital status, race and income. In the US case of Mt Laurel, zoning regulations and building codes that prevented the development of low and middle income housing were also held to violate equal protection laws since they had a disparate impact on African Americans, women and children.35 Obligation to Respect The obligation to respect requires governments to refrain from interfering with people’s existing access to housing. One clear violation is forced evictions (see chapter on forced evictions in this Manual). Box 4 sets out one of many cases on this topic. Box 4. Halting Force Evictions in Bangladesh ASK (Ain o Salish Kendra) V. Government of Bangladesh (Supreme Court, 1999)36 In Dhaka city, a large number of inhabitants of bastis, or informal settlements, were evicted without notice. Their homes were demolished with bulldozers. Two inhabitants and three NGOs lodged a complaint. The Supreme Court recognised that such inhabitants are often the victims of misfortune and natural calamities, migrants who earlier fled from rural areas where employment 33

In Jaimes v Toledo Metropolitan Housing Authority 758 F.2d 1086 (1985) low-income minorities in a class action suit successfully obtained orders providing that the public housing agency was responsible to redress its past racially discriminatory practices. The agency had decreased access to public housing through segregation policies. The agency was ordered to prepare an affirmative action plan. 34 Kearney & Ors v. Bramlea Ltd & Ors, Board of Inquiry, Ontario Human Rights Code, Canada. 35 Southern Burlington County NAACP v Township of Mount Laural (Mt. Laural I), 67 N.J. 151(N.J. 1975). 36 Centre on Housing Rights and Evictions, ‘Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, Geneva, Switzerland; 2003.

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opportunities, food or shelter were scarce. Slum dwellers also contributed significantly to the national economy. Evictions had a severe impact on the right to livelihood. Noting Olga Tellis V. Bombay Municipality Corporation (Supreme Court of India), the court found that the right to livelihood could be derived from constitutional fundamental rights. These included the right to life, respect for dignity and equal protection of the law. The State must also direct its policy towards ensuring the provision of the basic necessities of life, including shelter (see Constitution, Article.15): ‘Thus, our country is pledge-bound, within its economic capacity and in an attempt for development, to make an effective provision for the right to life, livelihood.’ etc. ‘While such State policies were not judicially enforceable (Article. 15 is only a directive principle), the right to life implied the right not to be deprived of a livelihood and shelter. The Government effort to remove alleged ‘criminals’ through evictions meant that “innocent slum dwellers (had) become victims of repression/oppression not only by mastans and terrorists (sic), but sometimes through government agencies.” The court ordered that: - The Government should develop master guidelines, or pilot projects, for the resettlement of the slum dwellers; - The plan should allow evictions to occur in phases and according to a person’s ability to find alternative accommodation; - Reasonable time is to be given before the eviction, and - For security reasons, slums along railway lines and roadsides should be cleared but inhabitants should be resettled elsewhere according to the guidelines. Obligation to Protect The obligation to protect means ensuring individuals and communities do not suffer from violations of housing rights by non-state actors. Violations must be investigated, perpetrators prosecuted and legal and other remedies provided to victims.37

Box 5. Restraining Multinationals

The African Commission in SERAC v Nigeria offered the following definition: At a secondary level, the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies. This obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms: Decision 155/96.

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SERAC and CESR v. Nigeria38 Oil reserves in Ogoniland were being exploited by a consortium consisting of a subsidiary of the multinational Shell Oil Company and the State-owned Nigerian National Petroleum Company. After the murder of Ogoni activist Ken Saro-Wiwa, the activities surrounding oil production attracted international attention. In 1996, two NGOs – the Nigerian-based Social and Economic Rights Action Centre (SERAC) and the US based Center for Economic and Social Rights (CESR) – filed a petition with the African Commission on Human and Peoples’ Rights alleging that: the oil consortium disposed of toxic waste in the environment, contaminating water, air, soil and crops; security forces – police, army, navy and air force, as well as unidentified gunmen – destroyed villages, crops and animals; security forces attacked villagers and executed Ogoni leaders; pollution had led to skin infections, gastrointestinal and respiratory ailments and increased risk of cancers, and malnutrition and starvation were widespread. Drawing on international law, the African Commission pointed out that all human rights entail four general obligations: to respect, protect, promote and fulfil. The right to health (Article 16) and the right to a clean environment (Article 24) had been contravened. While the Government had the right to produce oil, it had failed to prevent pollution and ecological degradation. It should have: (i) ordered or permitted independent scientific studies prior to major industrial developments; (ii) monitored such activities; and (iii) provided information to affected communities and allowed them to participate in decisions. The failure to monitor oil activities and involve local communities in decisions violated the State’s duty to protect its residents from exploitation (including foreign economic exploitation) and despoliation of their wealth and natural resources (Article 21). It was suggested that the failure to provide material benefits for the local population from the oil exploitation was also a violation. The right to housing and protection from forced eviction was violated by the destruction of housing and the harassment of residents who had returned to rebuild their homes. The right is derived from express rights to property, health and family. Furthermore, the destruction and contamination of crops by Government and non-State actors violated the duty to respect and protect the implied right to food. The Commission ordered that the government: cease attacks on Ogoni people, investigate and prosecute those responsible; provide compensation to victims; prepare environmental and social impact assessments in future; and provide information on health and environment risks. 38

Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, Geneva, Switzerland; 2003.

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Obligation to Fulfil States have an obligation to progressively realise the right of adequate housing by taking steps towards that goal (see chapter on obligation to fulfil in this Manual for additional information). The South African Constitutional Court said that the duty to take measures means:39 The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the Executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the State's obligations. The program must also be reasonably implemented. In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the program. The program must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A program that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the program will require continuous review. Box 6: An Example from the Right to Health Viceconte V. Ministry of Health and Social Welfare40 The plaintiff, Mariela Viceconte, and the National Ombudsmen requested the court to order that the Argentine Government take protective measures against haemorrhagic fever, to produce the Candid-1 vaccine and to rehabilitate those environments where the disease was breeding. The Federal Court of Appeals found that any individual could bring complaints concerning the right to health, due to the Constitutionâ&#x20AC;&#x2122;s incorporation of international treaties referring to the right.41

Government of the Republic of South Africa v Grootboom and Others 2000 (11) BCLR 1169 (CC) at paras 42 and 43. 40 Centre on Housing Rights and Evictions, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, (Geneva, Switzerland; 2003) at chapter 5. 41 The American Declaration on the Rights and Duties of Man (Article XI); Universal Declaration of Human Rights (Article 25); International Covenant on Economic, Social and Cultural Rights (Article 12) including the provision on the duty to prevent, control and treat epidemic and endemic disease (Article 12(2)(c)).

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According to the court, the Government was legally obliged to intervene to provide health care when individuals and the private sector could not protect their health. In the case of Argentine haemorrhagic fever, this duty entailed the production of the Candid-1 vaccine. The court cited evidence from the government that (a) the fever was epidemic and endemic; (b) the Candid-1 vaccine was the most effective protection against the disease; (c) both the World Health Organisation and Argentinaâ&#x20AC;&#x2122;s Minister of Health had previously endorsed Candid-1; (d) the stock of Candid-1 was insufficient; and (e) the disease was exclusive to Argentina, thereby making it an unattractive commercial proposition. The Court found that the Government had not punctually fulfilled its obligations to produce the vaccine and made the Ministers of Health and Economy personally liable for its production with in a specified time schedule.

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VIOLATIONS OF HOUSING RIGHTS Violations of ESC Rights in General Several important concepts should be understood before determining if a violation of economic, social and cultural rights has taken place.    

Acts of Commission and Omission Deliberately Retrogressive Measure The Decency Threshold Minimum Core Entitlements

Acts of Commission and Omission: Human rights violations in the traditional approach to civil and political rights are often seen as particular actions undertaken by the state against a person or a group of people. (i.e., acts of commission) When considering violations of economic, social and cultural rights, however, it is important to remember that violations can also result from a State’s failure to take appropriate action as required by law. (i.e., acts of omission) Two key documents that outline acts of commission and omission by States that can result in violations of ESC rights are: 

The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights were developed by a group of experts in international law that met in Maastricht, the Netherlands from June 2-6, 1986. Among other things, the participants agreed on a set of principles regarding the implementation of the Covenant, and outlined violations of ESC rights through Acts of Commission and Acts of Omission.

Though not legally binding , per se, the international community has repeatedly “emphasized the importance” of the Limburg Principles (see, for example, United Nations Commission on Human Rights resolutions 1995/5 and 1996/11. 

The Maastricht Guidelines is an important document in any discussion of ESC rights. The Guidelines were prepared during a workshop of international lawyers in Maastricht, The Netherlands, in January 1997. While the Guidelines are not technically a legally binding text, they do offer a set of practical principles based on international law that help us to understand State obligations in relation to ESC rights. The Guidelines include a very useful list of acts of commission and omission by States that can result in violations of ESC rights.

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Deliberately Retrogressive Measures are policies or legislative procedures undertaken by the state which undermine its obligations to respect, protect and fulfil economic, social and cultural rights. The Decency Threshold is a normative framework developed by the Committee that monitors the European Social Charter (which is the regional ESC rights treaty in Europe). It offers a practical example of how ESC rights can be implemented. It has been used creatively to apply the generally vague legal notions contained in the Charter, giving them increasing specificity so that state practice can be monitored. The rights to work and a decent standard of living contained in the European Social Charter are difficult to define. The Committee decided that in monitoring these rights, there was a need to recognize the disparities that exist within Europe. For example, there are some countries where the average wage is $25,000 a year. In others, the average is only $5,000. The challenge in this context is to find a way to apply the same legal norm. Under the European Social Charter, any person earning less than 67% of the average wage in the country falls under the decency threshold and, therefore, their rights are being violated. The concept of Minimum Core Obligations was developed by the UN Committee on Economic, Social and Cultural Rights. It is used to establish a baseline. If a State fails to achieve this baseline, a violation of rights is said to have taken place. The Committee developed this concept mainly to refute the argument that a lack of resources hinders fulfilment of obligations. The Committee has stated that every State Party has a minimum core obligation to satisfy minimum essential levels of each right of the Covenant. The Committee has clarified that a State Party â&#x20AC;&#x2DC;in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is prima facie, failing to discharge its obligations under the Covenant.â&#x20AC;&#x2122; Inability to comply In determining which actions or omissions amount to a violation of an economic, social or cultural right, it is important to distinguish the inability from the unwillingness of a State to comply with its treaty obligations. A State claiming that it is unable to carry out its obligation for reasons beyond its control has the burden of proving that this is the case. A temporary closure of an educational institution due to an earthquake, for instance, would be a circumstance beyond the control of the State, while the elimination of a social security scheme without an adequate replacement programme could be an example of unwillingness by the State to fulfil its obligations. ( Maastricht Guideline 13) Criminal sanctions: Victims of violations of economic, social and cultural rights should not face criminal sanctions purely because of their status as victims, for example, through laws criminalizing persons for being homeless. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 95

Nor should anyone be penalized for claiming their economic, social and cultural rights. ( Maastricht Guideline 21) Individuals and groups: As is the case with civil and political rights, both individuals and groups can be victims of violations of economic, social and cultural rights. Certain groups suffer disproportionate harm in this respect. (Maastricht Guideline 20

Tips for arguing that ESC rights have been violated   

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Is the violation an act of omission or an act of commission? Use of the term ‘violation’ rather than terms such as ‘failure to give effect to obligations.’ This will raise the stature of the act or omission. Use the term ‘violation’ cautiously. Not every undesirable action or situation should be called a violation of economic, social and cultural rights. When the term violation is used, it must really be a violation on the basis of law. The term should be used in such a way that it strengthens economic, social, and cultural rights rather than undermining them. The principles of indivisibility and interdependence, human dignity, equality, non-discrimination and any other notion of integrated personhood should guide and form the basis of any conception of legal process linked to violations. Although almost all components of economic, social and cultural rights are justiciable, violations may occur whether or not they are subject to judicial scrutiny. Examine violations of economic, social and cultural rights on a case-bycase basis unless the act or omission concerned is already universally recognized as a clear violation of human rights. All violations of human rights have to be considered serious with regard to the rule of law. It is important to always link economic, social and cultural rights to the rule of law. Any failure by States to comply with an international legal obligation must be examined in terms of whether the State in question is unable to implement the obligation or is simply unwilling to do so. There must be a clear distinction between ability and inability. Few States will ever officially admit that they are currently violating any economic, social and cultural rights. It is up to its citizens to prove that any rights are being violated.

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Acts Constituting Violations of the Right to Adequate Housing The first UN Special Rapporteur on Housing Rights, Justice Rajindar Sachar of India, listed about 30 acts of commission and omission that are seen as constituting violations of the right to adequate housing. Acts of Commission that constitute violations include 

Carrying out, sponsoring, tolerating or supporting the practice of forced evictions

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Demolishing or destroying homes or dwellings as a punitive measure

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Actively denying basic services such as water, heating or electricity, to sectors of society despite a proven ability to provide these

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Acts of racial and other forms of discrimination in the housing sphere

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Adoption of legislation or policies clearly inconsistent with housing rights obligations, particularly when these result in homelessness, greater levels of inadequate housing, the inability of persons to pay for housing and so forth

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Repealing legislation consistent with and in support of housing rights, unless obviously outdated or replaced with equally or more consistent laws

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Unreasonable reductions of public expenditure on housing and other related areas, in the absence of adequate compensatory measures

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Overtly prioritising the housing interests of high-income groups when significant portions of society live without their housing rights having been achieved

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Constructing or allowing the building of housing upon unsafe or polluted sites threatening the lives and health of future occupant

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Harassing, intimidating, or preventing non-governmental organisations, community-based organisations, grassroots movements and groups concerned with housing rights from operating freely.

Acts of omission i.e., failure to act, that constitute a violation include: 

Failing to take “appropriate steps” as required under the Covenant on Economic, Social, and Cultural Rights

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Failing to reform or repeal legislation inconsistent with the Covenant Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 97

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Failing to enforce legislation inherent in the fulfilment and recognition of housing rights

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Failing to intervene in the housing market, especially concerning rent levels, rent control, rent subsidies, issues of security of tenure and prevention of undue speculation

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Failing to incorporate and implement accepted international minimum standards of achievement concerning housing rights

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Failing to provide the infrastructure and basic services (water, electricity, drainage, sewage, etc.)

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Failing to prohibit or prevent individual or civil actions amounting to housing rights violations by any person capable of committing such acts

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Failing to utilize all available resources for the fulfilment of these rights

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Failing to integrate and fully consider the implications for housing rights when developing macro-economic policies impacting upon housing-related social spheres; and failing to submit reports as required under Articles 16 and 17 of the ICESCR, as well as under other treaties; or

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Failing to submit reports required under Articles 16 and 17 of the Covenant on Economic, Social and Cultural Rights as well as other treaties.

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Violators of Housing Rights: An Example of a Non-State Actor A World Bank funded dam construction project in Guatemala has been linked to atrocities and the forced eviction of entire communities from their homes in the last two decades. The World Bank has to date refused to accept responsibility for negligent supervision of the Chixoy Hydroelectric Dam project, which has been linked to the brutal mass murders of hundreds of Mayan peasants by the Guatemalan military, despite having knowledge of these horrific events. While accepting the project was not supervised in a sound manner, the World Bank is apparently of the view that survivors of the atrocities and forced evictions should capitalise on the free market opportunities provided by the bank instead of seeking justice for the gross human rights violations they have experienced in the last two decades. A fact finding mission by the Centre on Housing Rights and Evictions (COHRE) in July 2003 revealed the survivors and a majority of those displaced by the dam project live in appalling conditions, have yet to receive adequate compensation and are regularly subject to abusive treatment, intimidation and harassment by members of the Guatemalan military. The Chixoy Dam project was implemented in the early 1980s during the brutal regime of military dictator Efrain Rios Montt, and was jointly funded by the World Bank and the Inter-American Development Bank. At this time Rios Monttâ&#x20AC;&#x2122;s regime had instituted a â&#x20AC;&#x153;scorched earthâ&#x20AC;? policy, with financial backing from the Reagan Administration, which led to the annihilation of hundreds of thousands of poor peasants from the indigenous Mayan population in Guatemala and was subsequently found to constitute genocide by the United Nations. The first phase of the Chixoy Dam project got underway in the early 1980s and involved the submerging of areas surrounding the reservoir basin, which resulted in the displacement of thousands of Mayan peasants. The villagers, whose ancestors had inhabited these lands for many generations, were never consulted about the proposed project and were offered grossly inadequate compensation for their homes and lands by the Guatemalan authorities. Many of the communities that were adversely affected by the inadequate compensation scheme sought further negotiations with the government. Discussions between the communities and the government reached deadlock in early 1982, when the government refused to put forward a more equitable compensation plan. Soon after, members of the Guatemalan military embarked on a brutal mass killing spree which lasted for nearly eight months, attempting to terrorise and intimidate the Mayan peasants and so remove an obstacle to the dam project. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 99

The first mass killings took place in February 1982, when a local military commander ordered 73 men and women from the Rio Negro community to report to Xococ, a village upstream that had a longstanding history of land conflicts and hostility with Rio Negro. Only one woman managed to return alive; the 72 others were tortured, raped and then murdered by Xococ’s Civil Defence Patrol (PAC), a paramilitary unit established by the Guatemalan military. A month later on 13 March, ten soldiers and 25 paramilitaries rounded up a group of nearly 200 women and children in Rio Negro and marched them to a hill above the village, where many of them were tortured and raped. The soldiers then murdered 70 of the women and 107 children from the group they had rounded up. The women were strangled or hacked to death with machetes. The fate that befell the children was even more gruesome, as their heads were smashed on rocks or trees till they died. Two women from the group managed to escape and 18 children survived as a result of being taken back to Xococ and enslaved by the PAC. Witnesses who spoke to COHRE say that government soldiers and Xococ PAC members returned two months later on 14 May, in a truck owned by Codifa, a company under contract for the dam project funded by the two banks. They rounded up more villagers from Rio Negro and subsequently murdered 82 of them in Los Encuentros, a nearby village. Another 15 villagers who were taken away in a helicopter by government soldiers at the same time were never seen again. The final spate of killings took place in September 1982 when 92 villagers were machine gunned and burned to death in another village near the dam site. Thirty five children who had been orphaned from a previous massacre were among the 92 who were gunned down. Soon after, the survivors were forcibly evicted from their homes and moved to an inadequate resettlement site provided by the government, called the “Model Village” of Pacux, situated behind a military base near the town of Rabinal. When the COHRE team visited Pacux, it was evident it bore no resemblance to a model village and was actually an urban slum with subhuman living conditions. The residents live in abject poverty without adequate access to basic shelter, food, water or healthcare. The team’s findings reveal that the displaced Mayans, who were forced to make their new homes in Pacux after being forcibly evicted from the lands that had been inhabited by their ancestors for hundreds of years, have been subject to regular beatings, rape and intimidation by government soldiers from the nearby military base. Both the World Bank and the Inter-American Development Bank, which have direct supervisory roles in the implementation of the Chixoy Dam project, have apparently made no effort to curb the gross human right violations inflicted on the Mayan people affected by the project, to monitor their welfare, or to provide support for their rehabilitation, reparation and resettlement, since the commencement of the project over two decades ago. Despite being aware of them, the World Bank has thus far chosen to turn a blind eye to the atrocities inflicted on the Mayan people, and maintains that Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 100

survivors should stop behaving like victims and seize the free market opportunities it is providing in Guatemala. When the World Bank was questioned about its negligent supervision of the Chixoy Dam project, a representative of the Bank (name) accepted that supervision had not been carried out in a sound manner, but added callously “What can you do now?”. Several human rights organizations including COHRE have repeatedly requested access to the World Bank’s Supervision Reports, but have been refused on the grounds that these are classified and not for public use. State-sanctioned human rights violations have been a disturbing trend in many developing countries in recent decades, but what is even more alarming is that the World Bank, which claims that its mission is “to fight poverty and improve the living standards of people in the developing world”, has also played a role in endangering the very existence and survival of the most marginalized groups in society, whose welfare it claims to improve and defend. The World Bank’s conduct and role in development projects such as the Chixoy Dam in Guatemala and the Narmada Dam in India, leads to some disturbing conclusions, that do not sit comfortably with its self-proclaimed status as an institution working towards poverty alleviation and improving the quality of life of the marginalized peoples of the developing world. We are forced to ask how committed are multilateral economic institutions such as the World Bank to social justice and basic human rights? How can the democratic deficits prevalent in the operation of such institutions be remedied so as to improve transparency and community participation in the decision-making processes relating to development? If we want a better world where the views of the marginalized and silenced are given voice, social injustices are adequately addressed and unequal power relationships remedied, this must surely begin with an interrogation of the very institutions claiming to champion these causes.

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Housing Rights Remedies, Compensation and Restitution What can be done about housing rights violations? What remedies are available? This issue is addressed in the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights state in Guidelines 22-25 &27: Access to remedies Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels. (Guideline 22) Adequate reparation All victims of violations of economic, social and cultural rights are entitled to adequate reparation, which may take the form of restitution, compensation, rehabilitation and satisfaction or guarantees of non-repetition. (Guideline 23) No official sanctioning of violations National judicial and other organs must ensure that any pronouncements they may make do not result in the official sanctioning of a violation of an international obligation of the State concerned. At a minimum, national judiciaries should consider the relevant provisions of international and regional human rights law as an interpretive aide in formulating any decisions relating to violations of economic, social and cultural rights. (Guideline 24) National institutions Promotional and monitoring bodies such as national ombudsman institutions and human rights commissions should address violations of economic, social and cultural rights as vigorously as they address violations of civil and political rights. (Guideline 25) Impunity States should develop effective measures to preclude the possibility of impunity of any violation of economic, social and cultural rights and to ensure that no person who may be responsible for violations of such rights has immunity from liability for their actions. (Guideline 27)

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FORCED EVICTIONS Understanding Forced Eviction as a Violation of Housing Rights COHRE has documented cases involving of nearly 4.3 million persons in 63 countries who were forcibly evicted from their homes during 1998 - 2000. Often, these evictions were accompanied by severe violence, with victims often detained, arrested, beaten, tortured, and in some cases, even killed. Exceptionally few nations - including strong human rights supporters where the rule of law prevails - have succeeded in protecting all categories of people from unlawful, illegal, arbitrary, or otherwise unjust forced evictions. The United Nations Committee on Economic, Social and Cultural Rights considers that instances of forced evictions are prima facie incompatible with the requirements of the covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law. There are eight key differences between the practice of forced eviction and other types of coerced removal or flight of people from their homes (such as internal displacement, population transfer, mass exodus, refugee movements and ethnic cleansing). As a result of these differences, forced eviction is regarded as a distinct practice under international law, which creates particular legal obligations for States and particular rights for people threatened with forced eviction. 1.

Forced evictions always raise issues of human rights (other forms of displacement might not invariably involve human rights concerns)

Forced evictions are generally planned, foreseen or publicly announced (other types of coerced movement may occur spontaneously and not necessarily be part of a State policy or legal regime)

Forced evictions often involve the conscious use of physical force (other kinds of displacement do not always involve physical force)

Forced evictions raise issues of State responsibility (determining liability for a forced eviction will often be much easier than doing the same for other manifestations of displacement)

Forced evictions affect both individuals and groups (most other forms of displacement are only mass in character)

Forced evictions are generally regulated or legitimised by national or local law (other types of displacement may be more random or simply not addressed legally) Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 103

Forced evictions are often carried out for specific stated reasons (rarely are evictions carried out which do not involve a rationalization of the process by those sponsoring the evictions in question)

Not all evictions are forced eviction, and evictions can sometimes be consistent with human rights (most other forms of displacement cannot be justified on human rights grounds, whereas evictions may be justified for reasons of public order, the safety and security of the dwellers and threats to public health).

A range of human rights bodies have adopted international standards specifically addressing forced evictions by in recent years, and forced evictions are addressed within all national legal jurisdictions. Perhaps most notable among these is General Comment No. 7, adopted by the UN Committee on Economic, Social and Cultural Rights in 1997. General Comment No. 7 affirms that forced eviction violates the International Covenant on Economic, Social and Cultural Rights and defines the practice in terms of concrete elements that lend themselves to judicial enforcement.

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Main Causes of Forced Evictions Forced evictions are carried out in a variety of circumstances and for various reasons such as         

development and infrastructure projects (e.g. construction of dams and other energy projects) prestigious international events (e.g. Olympics) urban redevelopment or city beautification projects conflict over land rights the removal or reduction of housing subsidies for low income groups forced population transfers and forced relocations in the context of armed conflict separation of ethnic or racial groups refugee movements reclaiming public land

COHRE has documented many cases of forced eviction that present a picture of harassment, violence, lack of reasonable compensation and households torn from their means of livelihood. The justification used by governments to legitimise their acts of forced eviction can never excuse the violations of others civil and political rights. As international community stated in the Vienna Declaration and Programme of Action (1993), adopted unanimously at the World Conference on Human Rights, "while development facilitates the enjoyment of human rights, the lack of development may not be invoked to justify the abridgement of internationally recognised human rights." Development projects or urban development policies are important, but it is also important that communities and individuals have a right to be protected against "arbitrary or unlawful interference" with their homes. The Committee on Economic, Social and Cultural Rights in General Comment No. 7 (1997) states that no matter the cause, "evictions should not result in rendering individuals homeless or venerable to the violation of other human rights (Para. 17)."

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Government Obligations to Prevent Forced Evictions States that have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) are obliged to use "all appropriate means" to promote and protect the right to housing and to protect against forced evictions. This can be achieved in a number of ways. Review Legislation States can review legislation to ensure that it conforms with international standards. According to the Committee on Economic, Social and Cultural Rights, such legislation should include measures which:  guarantee security of tenure to occupiers of houses and land  conform to the Covenant on Economic, Social and Cultural Rights  are designed to control the circumstances under which evictions may be carried out  ensure that legislative and other measures are adequate to prevent, and if appropriate, punish forced evictions carried out without appropriate safeguards, by private persons or bodies. Procedural Protections Procedural protections are required in those exceptional cases where there is no alternative to eviction. Procedural protection should include:  an opportunity for genuine consultation with those affected  adequate and reasonable notice for all affected persons prior to the date of the eviction  information on the proposed eviction should be made available in a reasonable time to those affected  government officials or their representatives should be present during an eviction and persons carrying out the eviction should be properly identified;  evictions should not take place in particularly bad weather or at night  legal remedies should be available  legal aid should be available to those in need of it to seek redress from the courts. Prevent Homelessness States are obliged to ensure that no individual or family is rendered homeless as a result of the eviction. In turn, where those affected are unable to provide for themselves, the State party must take all appropriate measures to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.

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Legal sources on Forced Evictions The United Nations Committee on Economic, Social and Cultural Rights says that forced evictions incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law. There are a number of international legal standards that oblige States to prevent forced evictions or to ameliorate the consequences of past evictions. Additionally, there are numerous statements of principle, often adopted by the consensus of the international community. These statements not only condemn the practice of forced eviction generally, but also are intended to either prevent specific planned evictions, condemn specific past evictions or both. Over the years several United Nations bodies, including the UN Commission on Human Rights, have developed consistent standards unequivocally stating that forced evictions constitute grave violations of human rights, especially the right to adequate housing. Indeed, bodies such as the UN Committee on Economic, Social and Cultural rights have increasingly developed the practice of declaring certain countries to have violated the rights of their residents because of forced evictions. Reliance on international standards and mechanisms has even resulted in preventing planned evictions. Following are some of the more prominent international standards and statements of principle addressing the practice of forced eviction. For those desiring a more in-depth collection of resources on forced evictions please refer to COHRE’s publication, Sources No. 3: Forced Evictions and Human Rights: A Manual for Action which can be downloaded for free from our website or ordered in hard copy format for a nominal fee. General Comment No. 7 on the Right to Adequate Housing (E/C.12/1997/4) The leading legal interpretation of the right to be protected against forced eviction is General Comment No. 7 adopted by the Committee on Economic, Social and Cultural Rights in 1997. This general comment represents the most far-reaching decision yet under international law on forced evictions and human rights, detailing what governments, landlords and institutions must do to prevent forced evictions. General Comment No 7 can be found in the appendix to this Manual. According to General Comment No. 7:  Forced evictions are incompatible with the requirements of the Covenant.  A forced eviction is “the permanent or temporary removal against their will of individuals, families, and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 107

law and in conformity with the provisions of the International Human Rights Covenants.” 

Forced evictions frequently violate other human rights such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions

 Before carrying out any evictions States parties must ensure that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force.  Legal remedies or procedures should be provided to those who are affected by eviction orders.  States Parties also have to ensure that all the individuals concerned have a right to adequate compensation for any property which is affected. (see also Article 2.3 of the International Covenant on Civil and Political Rights)  In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality.  The following procedural protections which should be applied in relation to forced evictions (a) an opportunity for genuine consultation with those affected (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction (e) all persons carrying out the eviction to be properly identified (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise (g) provision of legal remedies (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.  Evictions should not result in individuals becoming homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State Party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available. Committee on Economic, Social and Cultural Rights General Comment No. 4 on the Right to Adequate Housing General Comment No. 4, released in 1990, made it clear that forced evictions are a violation of human rights. The Committee considers in paragraph 18: Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 108

"that instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law." Country Review of the Dominican Republic, by the UN Committee on Economic, Social and Cultural Rights (E/C.12/1990/8, para. 249) In a historic declaration, the Committee declared for the first time that a State party to the International Covenant on Economic, Social and Cultural Rights had violated the housing rights provisions of article 11(1), stating: "The information that had reached members of the Committee concerning the massive expulsion of nearly 15,000 families in the course of the last five years, the deplorable conditions in which the families had live, and the conditions in which the expulsions had taken place were deemed sufficiently serious for it to be considered that the guarantees in article 11 of the Covenant has not been respected." Commission on Human Rights Resolution 1993/77 on Forced Evictions The Commission on Human Rights is the world's most important human rights body. While resolutions adopted by this body are not per se legally binding on governments, they are considered important normative standards and they possess political legitimacy as they are adopted by governments. According to the Commissionâ&#x20AC;&#x2122;s Resolution 1993/77 of the United Nations Commission on Human Rights, adopted unanimously on 10 March 1993 , The Commission on Human Rights, 1. Affirms that the practice of forced evictions constitutes a gross violation of human rights, in particular the right to adequate housing; 2. Urges Governments to undertake immediate measures, at all levels, aimed at eliminating the practice of forced evictions; 3. Also urges Governments to confer legal security of tenure to all persons currently threatened with forced eviction and to adopt all necessary measures giving full protection against forced evictions, based upon effective participation, consultation and negotiation with affected persons or groups; 4. Recommends that all Governments provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land, consistent with their wishes or needs, to persons and communities which have been forcibly evicted, following mutually satisfactory negotiations with the affected persons or groups....

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Sub-Commission on the Protection and Promotion of Human Rights Resolution 1998/9 on Forced Evictions Adopted August 20 1998, the resolution, among other things, urges governments to protect those currently threatened with forced evictions, repeal existing plans for forced evictions and include in negotiations and consultation the affected persons or groups. The Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1. Reaffirms that the practice of forced eviction constitutes a gross violation of a broad range of human rights, in particular the right to adequate housing, the right to remain, the right to freedom of movement, the right to privacy, the right to property, the right to an adequate standard of living, the right to security of the home, the right to security of the person, the right to security of tenure and the right to equality of treatment; 2. Strongly urges Governments to undertake immediately measures, at all levels, aimed at eliminating the practice of forced evictions by, inter alia, repealing existing plans involving arbitrary forced evictions and legislation allowing arbitrary forced evictions and ensuring the right to security of tenure for all residents; 3. Also strongly urges Governments to protect all persons who are currently threatened with forced evictions, and to adopt all necessary measures giving full protection against arbitrary or unreasonable forced eviction, based upon effective participation, consultation and negotiation with affected persons or groups; 4. Recommends that all Governments provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land, consistent with their wishes, rights and needs, to persons and communities that have been forcibly evicted, following mutually satisfactory negotiations with the affected persons or groups, and recognizing the obligation to ensure such provision in the event of any forced eviction; 5. Recommends that all Governments ensure that any eviction, whether forced or not, is carried out in a manner which does not violate any of the human rights of those evicted; 6. Invites all international financial, trade, development and other related institutions and agencies, including member or donor States that have voting rights within such bodies, to take fully into account the views contained in the present resolution and other pronouncements under international human rights and humanitarian law on the practice of forced evictions. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 110

Conclusions and Recommendation of the Expert Group Meeting on the Right to Adequate Housing, convened by UNCHS (Habitat) and the United Nations Centre for Human Rights. This meeting, in Geneva on 18/19 January 1996, helped to achieve consensus on the existence and international recognition of the human right to adequate housing. In article 8 of the Conclusion and Recommendations, the Expert Group states that: "Among the core areas of the State role in realising the human right to adequate housing are provisions of security of tenure...prevention of illegal and mass evictions, elimination of homelessness and promotion of participatory processes for individuals and families in need of housing." Forced Evictions and Human Rights Fact Sheet No.25, from the Office of the United Nations High Commissioner for Human Rights. This fact sheet, from May 1996, examines the issue of forced evictions in an international human rights framework and outlines the distinct connections between forced evictions and human rights. It also outlines the relevant international, regional, national and local legal and other developments addressing this topic. The fact sheet is included on the CD-rom which is part of this manual. International Covenant on Economic, Social and Cultural Rights The majority of the developments relating to housing rights since the 1960s have been based on the provisions of article 11 - which codifies the right to adequate housing - of the International Covenant on Economic, Social and Cultural Rights. The right to be protected against forced eviction is an element of the right to housing.

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Strategies to Prevent Forced Evictions Governments and NGOs can play an important role in preventing forced evictions before they occur. The following are some examples of possible activities: 

Governments could enact and enforce legislation guaranteeing universal security of tenure. This would constitute the single most effective action governments could undertake to curtail the practice of forced eviction. Security of tenure - the legal right to protection from arbitrary or forced eviction from the home or land - plays a significant role in discouraging the evictions.

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Community-based and non-governmental organizations often undertake a number of activities to prevent forced eviction such as: the development of alternative plans in instances where evictions are planned; the establishment of housing rights campaigns or movements; and publicizing and exposing planned evictions. These responses to threats of forced eviction have been successful in a number of circumstances, resulting in the prevention of the eviction as well as encouraging positive legislative aimed at reducing the prevalence or scale of evictions.

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Land sharing can provide an alternative to forced eviction. This involves the redistribution of the land in question into parts, some of which are reserved for housing the people who live on the site, others of which are reserved for the landowner to develop. This has been used as a strategy to prevent forced eviction in India, Sri Lanka, and Thailand.

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Invoking international and regional legal remedies provides another avenue for eviction prevention. For example, human rights complaint mechanisms at the United Nations or at the regional level can be utilized. The Committee on Economic, Social and Cultural Rights, while lacking a formal petition procedure, has agreed to receive written submissions from non-governmental organizations and hear oral information from them in the context of its consideration of reports of States parties on the implementation of particular articles of the Covenant, such as the right to housing. While some of these mechanisms are only quasi-legal and more political in nature, if used in conjunction with strategies on the domestic front, they can contribute to the prevention of forced evictions.

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How to Use International Procedures to Prevent Forced Evictions If you are faced with possible forced eviction, it is most often best to first contact for assistance a local lawyer or housing rights organisation in your city or near to where you live. It is also helpful to be aware of potential international and regional mechanisms that you may be able to invoke to prevent forced evictions. We cannot over-emphasise that simply invoking these procedures or contacting the relevant institutions concerned will rarely be enough to halt planned evictions from taking place. Local activities, such as organising the affected communities to work together, are often far more powerful determinants in anti-eviction struggles. If you do choose to use any of the procedures that follow, make sure you are familiar with the various rules governing these. Each institution and procedure has certain rules and limitations, and it is vital that you understand these before going ahead with further action. If you have any questions in this respect, we recommend you contact COHRE for assistance. Examples: International Organisations which will receive submissions (those marked with a * will receive submissions from individuals)

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UN Committee on the Elimination of All Forms of Discrimination Against Women* UN Human Rights Committee* UN Committee on the Elimination of Racial Discrimination* UN Committee on Economic, Social and Cultural Rights UN Committee on the Rights of the Child UN Committee Against Torture* European Court on Human Rights * European Committee of Experts Inter-American Commission on Human Rights* Inter-American Court on Human Rights* African Commission on Human and Peoples Rights* International Court of Justice (ICJ) International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for Rwanda World Bank Inspection Panel*

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NON-JUDICIAL STRATEGIES TO PROMOTE HOUSING RIGHTS Making a positive difference: the role of NGOs 

NGOs can mobilize and collaborate with communities and other organizations

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NGOs can educate the population about their housing rights

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NGOs can respond to individual and community complaints about violations

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NGOs can monitor and report on the government’s compliance with or its violations of international obligations

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NGOs can apply international housing rights standards to the domestic system

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NGOs can develop indicators on housing rights

Examples of non-judicial strategies at the International level Advocacy efforts could involve the United Nations Housing Rights Programme (UNHRP), the Office of the UN High Commissioner for Human Rights (OHCHR) or other institutions. With these institutions, strategies could include:        

Providing Information Lobbying Creative Use of Law and Procedures Speeches Resolutions Creating New Standards and New Procedures Complaint Procedures Sending Communications to Thematic and Country Rapporteurs and Special Representatives

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Examples of non-judicial strategies at a National level These strategies could target National Human Rights Institutions, ombudspersons, National Housing Rights Officers, et cetera and include:     

Political Initiatives Campaigns Successful Strategies for Resisting Eviction Repealing Bad Laws Advocating for New Legislation

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The state reporting process A very important opportunity for action around housing rights relates to the state reporting process to the CESCR. All states that are party to the Covenant have to present periodic reports according to given guidelines. On one hand this provides an opportunity for government and civil society to evaluate the performance of the state in meeting its obligations. The writing of the report can provide opportunities for engagement between state and civil society, or civil society might choose to “go it alone” and produce a shadow report. More details are provided in the section of this manual on using the Committee. Whatever strategy is decided on, it is important to be well-aware of the guidelines for states reporting on the issue of adequate housing. General Comment No. 1 (1989) of the Committee on Economic, Social and Cultural Rights, on reporting by State Parties, provides the following guidelines for state reporting obligations vis-à-vis the right to adequate housing: REVISED GUIDELINES REGARDING THE FORM AND CONTENTS OF STATES REPORTS TO BE SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS THE RIGHT TO ADEQUATE HOUSING a) Please furnish detailed statistical information about the housing situation in your country. b) Please provide detailed information about those groups within your society that are vulnerable and disadvantaged with regard to housing. Indicate, in particular: i) ii)

The number of homeless individuals and families; The number of individuals and families currently inadequately housed and without ready access to basic amenities such as water, heating (if necessary), waste disposal, sanitation facilities, electricity, postal services, etc. (in so far as you consider these amenities relevant in your country). Include the number of people living in overcrowded, damp, structurally unsafe housing or other conditions which affect health; iii) The number of persons currently classified as living in ‘illegal’ settlements or housing; iv) The number of persons evicted within the last five years and the number of persons currently lacking legal protection against arbitrary eviction or any other kind of eviction; Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 116

v) The number of persons whose housing expenses are above any government-set limit of affordability, based upon ability to pay or as a ratio of income; vi) The number of persons on waiting lists for obtaining accommodation, the average length of waiting time and measures taken to decrease such lists as well as to assist those on such lists in finding temporary housing; vii) The number of persons in different types of housing tenure by: social or public housing; private rental sector; owner-occupiers; ‘illegal’ sector; and others.

c) Please provide information on the existence of any laws affecting the realization of the right to housing, including: i) ii) iii)

iv)

v) vi) vii) viii) ix)

x) xi)

Legislation which gives substance to the right to housing in terms of defining the content of this right; Legislation such as housing acts, homeless person acts, municipal corporation acts, etc; Legislation relevant to land use, land distribution, land allocation, land zoning, land ceilings, expropriations including provisions for compensation, land planning including procedures for community participation; Legislation concerning the rights of tenants to security of tenure, to protection from eviction, to housing finance and rent control (or subsidy), housing affordability, etc Legislation concerning building codes, building regulations and standards and the provision of infrastructure; Legislation prohibiting any and all forms of discrimination in the housing sector, including groups not traditionally protected; Legislation prohibiting any form of eviction; Any legislative appeal or reform of existing laws which detracts from the fulfilment of the right to housing; Legislation restricting speculation on housing or property, particularly when such speculation has a negative impact on the fulfilment of housing rights for all sectors of society; Legislative measures conferring legal title to those living in the ‘illegal’ sector; Legislation concerning environmental planning and health in housing and human settlements.

d) Please provide information on all other measures taken to fulfil the right to housing, including: I)

Measures taken to encourage ‘enabling strategies’ whereby local community-based organizations and the ‘informal sector’ can build housing and related services. Are such organizations free to operate? Do they receive Government funding?; Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 117

ii) iii) iv)

vi) vii)

Measures taken by the State to build housing units and to increase other construction of affordable rental housing; Measures taken to release unutilised, under-utilized or mis-utilized land; Financial measures taken by the State including details of the budget of the Ministry of Housing or other relevant Ministry as a percentage of the national budget; Measures taken to ensure that international assistance for housing and human settlements is used to fulfil the needs of the most disadvantaged groups; Measures taken to encourage the development of small and intermediate urban centres, especially at the rural level; Measures taken during, inter alia, urban renewal programmes, redevelopment projects, site upgrading, preparation for international events (Olympics, World Fairs, conferences, etc.), â&#x20AC;&#x2DC;beautiful cityâ&#x20AC;&#x2122; campaigns, etc., which guarantee protection from eviction or guarantee rehousing based on mutual agreement, by any persons living on or near to affected sites.

e) During the reporting period, have there been any changes in the national policies, laws and practices negatively affecting the right to adequate housing?

The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Principles 76-82) also provide suggestions about how the Reporting obligations can be used constructively: 76. States parties should view their reporting obligations as an opportunity for broad public discussion on goals and policies designed to realize economic, social and cultural rights. For this purpose wide publicity should be given to the reports, if possible in draft. The preparation of reports should also be an occasion to review the extent to which relevant national policies adequately reflect the scope and content of each right, and to specify the means by which it is to be realized. 77. States parties are encouraged to examine the possibility of involving non- governmental organizations in the preparation of their reports. 78. In reporting on legal steps taken to give effect to the Covenant, States parties should not merely describe any relevant legislative provisions. They should specify, as appropriate, the judicial remedies, administrative procedures and other measures they have adopted for enforcing those rights and the practice under those remedies and procedures. 79. Quantitative information should be included in the reports of States parties in order to indicate the extent to which the rights are protected in fact. Statistical information and information on budgetary allocations and expenditures should be presented in such a way as to facilitate the Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 118

assessment of the compliance with Covenant obligations. States parties should, where possible, adopt clearly defined targets and indicators in implementing the Covenant. Such targets and indicators should, as appropriate, be based on criteria established through international co-operation in order to increase the relevance and comparability of data submitted by States parties in their reports. 80. Where necessary, governments should conduct or commission studies to enable them to fill gaps in information regarding progress made and difficulties encountered in achieving the observance of the Covenant rights. 81. Reports by States parties should indicate the areas where more progress could be achieved through international co-operation and suggest economic and technical co-operation programmes that might be helpful toward that end. 82. In order to ensure a meaningful dialogue between the States parties and the organs assessing their compliance with the provisions of the Covenant, States parties should designate representatives who are fully familiar with the issues raised in the report.

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Monitoring housing rights Monitoring is the “process of systematically tracking activities of and actions by institutions, organisations or governmental bodies.” The main purpose of monitoring human (and housing) rights is to determine the truth about the compliance of a government with its human rights obligations. Monitoring involves the collection of information (fact-finding) and documentation of findings. Monitoring needs to be done by governments themselves, as well as by NGOs and other actors. As Guideline 32 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights states:  Documenting and monitoring violations of economic, social and cultural rights should be carried out by all relevant actors, including NGOs, national governments and international organizations. It is indispensable that the relevant international organizations provide the support necessary for the implementation of international instruments in this field. The mandate of the United Nations High Commissioner for Human Rights includes the promotion of economic, social and cultural rights and it is essential that effective steps be taken urgently and that adequate staff and financial resources be devoted to this objective. Specialized agencies and other international organizations working in the economic and social spheres should also place appropriate emphasis upon economic, social and cultural rights as rights and, where they do not already do so, should contribute to efforts to respond to violations of these rights. In relation to Housing Rights in particular, General Comment General Comment No. 4 (1991) on the Right to Adequate Housing of the United Nations Committee on Economic, Social and Cultural Rights emphasises that  Effective monitoring is an “obligation of immediate effect.”  For a State Party to satisfy its obligations under Article 11(1) it must determine, inter alia, that it has taken whatever steps are necessary, either alone or on the basis of international cooperation, to ascertain the full extent of homelessness and inadequate housing within its jurisdiction.  The revised reporting guidelines adopted by the Committee emphasise the need to “provide detailed information about those groups within society that are vulnerable and disadvantaged with regard to housing.” They include, in particular, homeless persons and families, those inadequately housed and without ready access to basic amenities, those living in “illegal” settlements, those subject to forced evictions and low-income groups.

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Collecting and documenting information Adapted From: Ravindran, D.J., Guzman, M.; Ignacio, B. (Ed.). (1994). Handbook on FactFinding and Documentation of Human Rights Violations, Bangkok: Asian Forum for Human Rights and Development (Forum Asia). Buhl, Dana. (1997). Ripple in Still Water: Reflections by Activists on Local and National Level Work on Economic, Social and Cultural Rights . Washington, D.C.: International Human Rights Internship Programme, pp. 41-47.

Monitoring human rights practices of governments involves two interrelated aspects - Collection and Documentation of information. Information is collected by human rights organisations to determine the truth as accurately and completely as possible concerning alleged human rights violations for the purposes of monitoring human rights practices of governments. In some cases, information is also collected on alleged human rights violations committed by armed opposition groups. Human rights organisations collect first-hand information to verify the facts for themselves and to make credible reports on alleged violations of human rights. Documentation is the process of systematically recording and organizing the information for easy retrieval and dissemination. The word documentation is normally understood as a collection of existing documents. However, human rights organisations also use it to mean recording facts including collection of documents and establishing a system for easy retrieval and dissemination. Once a violation has been identified, the next step is to conduct an investigation in order to collect and document the “evidence.” This is done by carrying out fact-finding activities and carefully recording the findings. Some guiding principles for human rights fact-finders 

Impartiality and Accuracy Fact-finding must be thorough, accurate and impartial. Ensure the credibility of information collected and disseminated by seeking direct evidence and higher-level evidence. Assess the veracity and reliability of the evidence gathered.

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Using Diverse Sources of Information Locate and use as many sources of information as possible. Examine both the victim’s (individuals and communities) and the violators’ versions of the events. Collect and evaluate ALL available evidence. This evidence should include periodic government budget or policy reports; legislative and judicial records; papers and studies produced by academic or research institutions; reports by or interviews with NGOs. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 121

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Application of International Standards Apply international human rights standards and constitutional rights guarantees to help identify and define what information to collect and to assess the information gathered.

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Respect for all Parties All efforts should be carried out within an atmosphere of utmost respect for those concerned.

Common methods of conducting fact-finding (focussing on housing rights):  Conducting investigation in the field for a limited period of time by skilled fact-finders including staff members of an organisation.  Placing trained field workers in an area for a longer period of time to collect and document information on violations.  Sending a low profile fact-finding delegation (mission) consisting of people from the local area.  Sending a high-level delegation of well-known personalities in the country.  Sending an international delegation (mission) composed mainly of foreign nationals.  Organizing non-governmental tribunals and commissions of enquiry  Conducting research studies, including surveys for the purpose of collecting data on housing rights.

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 Monitoring progressive realisation of housing rights through the use of benchmarks and indicators Adapted from: Diokno, Maria I. Socorro, “Monitoring the Progressive Realisation of Housing Rights.” Focus Asia-Pacific, Newsletter of the Asia-Pacific Human Rights Center, Vol. 16, June 1999.

Benchmarks State Parties themselves, as well as the Committee, need to effectively evaluate the extent to which progress has been made towards the realisation of the obligations contained in the Covenant. For this purpose, it is useful to identify specific benchmarks or goals against which their performance in a given area can be assessed. Thus, for example, it is generally agreed that it is important to set specific goals with respect to the reduction of infant mortality, the extent of vaccination of children, the intake of calories per person, the number of persons per health-care provider, etc. In many of areas, global benchmarks are of limited use, whereas national or other more specific benchmarks can provide an extremely valuable indication of progress. It is important, therefore, to find out what specific benchmarks have been established by the State, and to determine whether the State meets the benchmarks it has set itself. To determine the progressive realisation of housing rights through benchmarks, one may need to answer the following questions:  Has the State set benchmarks or targets towards the realisation of housing rights? If so, what benchmarks or targets has the State set? Are the benchmarks set by the State appropriate?  If the State has not established benchmarks, why has it failed to do so? What can be done to pressure the State into establishing these benchmarks?  Has the State actually met the benchmarks or targets or goals it has established?  If the State has established benchmarks but has failed to meet them, why has the State been unable to meet its benchmarks? What can be done to pressure the State into meeting its benchmarks? Indicators The enjoyment and guarantee of housing rights, and the level of compliance by government of its obligations, must be periodically monitored to assess progress in the realisation of the right. The assessment often takes the form of qualitative and quantitative measurements, called indicators. Indicators are statistical (numerical) data which ‘indicate’ the prevailing circumstance at a given place at a given point in time. But an indicator is not simply a statistical series. It also involves a set of assumptions which requires careful examination and testing before use. Despite their limitations (i.e., they do not always reflect the human condition in a meaningful way) indicators are valuable tools that have the potential to Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 123

adequately and accurately measure not only the existence of housing rights or any derogations there from - but also any advances that may develop. It is essential to use indicators which are compatible with the legal duties of States under existing domestic and international human rights law. Examples of indicators relating to the right to housing 

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Information on housing tenure, e.g., types of housing tenure, number of persons in different types of housing tenure broken down by gender, age, social class, race, ethnicity and geographic location, etc Information on the housing population, broken down by age, gender, race, social class, ethnicity, and geographic location, e.g., number of homeless persons, number of persons currently inadequately housed, number of persons on waiting lists for obtaining accommodations, number of persons currently classified as living in “illegal” settlements or housing, number of persons evicted, and so on. Data on housing affordability, e.g., number of persons whose housing expenses are above any state-set limit of affordability, based upon the ability to pay or as a ratio of income, broken down by age, gender, race, social class, ethnicity and geographic location, cost of housing materials, rent levels, etc Information on the extent of access to natural resources broken down by geographic location, e.g., proportion of households with access to safe and clean potable water, types of access to such water, proportion of households with access to sanitation facilities, proportion of households with access to energy sources, etc. Gender indicators should involve more that just gender disaggregated statistics. Issues such as allocation of household resources for example should be considered. Possible indicators could include: who predominantly controls household resources, who makes decisions within the household, who is entitled to resources upon separation, divorce, or death of a spouse.

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Using education to protect and promote housing rights

Human rights education can be defined as a process of learning, discovery, and action that cultivates the knowledge, skills, attitudes, habits and behaviour needed for people to effectively know, assert, and vindicate their human rights consistent with the Universal Declaration and to respect the rights of others. - Richard Pierre Claude, 1998

Why is there a need for human rights education? Because people must be aware of and informed about the issues affecting them and the choices available to them in order to effectively participate in the development, implementation and evaluation of social and economic policies. What is human rights education? Simply put, human rights education is all learning that develops the knowledge, skills, and values of human rights. The United Nations Decade for Human Rights Education (1995 - 2004) has defined Human Rights Education as â&#x20AC;&#x153;training, dissemination, and information efforts aimed at the building of a universal culture of human rights through the imparting of knowledge and skills and the moulding of attitudes which are directed to: (a) The strengthening of respect for human rights and fundamental freedoms; (b) The full development of the human personality and the sense of its dignity; (c) The promotion of understanding, respect, gender equality, and friendship among all nations, indigenous peoples and racial, national, ethnic, religious and linguistic groups; (d) The enabling of all persons to participate effectively in a free society; (e) The furtherance of the activities of the United Nations for the Maintenance of Peace.â&#x20AC;? (Adapted from the Plan of Action of the United Nations Decade for Human Rights Education (1995 - 2004), paragraph 2).

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Human rights education as a human right Education in human rights is itself a fundamental human right and also a responsibility: the Preamble to the Universal Declaration of Human Rights (UDHR) exhorts “every individual and every organ of society” to “strive by teaching and education to promote respect for these rights and freedoms.” The International Covenant on Civil and Political Rights (ICCPR) declares that a government “may not stand in the way of people learning about [their rights].” People who do not know their rights are more vulnerable to having them abused and often lack the language and conceptual framework to effectively advocate for them. Growing consensus around the world recognizes education for and about human rights as essential. It can contribute to the building of free, just, and peaceful societies. Human rights education is also increasingly recognized as an effective strategy to prevent human rights abuses. What does human rights education involve? Human rights education involves the exploration of human rights principles and instruments and the promotion of critical reflection and inquiry. It is the process of informing people about the human rights framework and facilitating the development of their capacity to use this framework as a lens through which to analyse issues, problems and proposals. What is the goal of human rights education? The purpose or goal of human rights education in empowerment in order to bring about social change. Ultimately, human rights education inspires people to take control of their own lives and the decisions that affect their lives. What methods are most effective and successful in achieving this goal? The practice of human rights education is founded on mutual respect and reciprocal learning. Participatory methods that value and promote the sharing of personal knowledge and experience are fundamental. The role of human rights educators is to foster within each person an awareness of human rights and a sense of the individual’s capacity to effect change. It is the responsibility of human rights educators to provide a supportive environment where people feel free to define the issues that are at the heart of their own human rights struggles.

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USING THE UN COMMITTEE FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS What does the Committee do? The UN Committee on Economic, Social and Cultural Rights is comprised of 18 independent human rights experts who monitor State party compliance with the International Covenant on Economic, Social and Cultural Rights. The Committee is the only institution which has been given the legal authority by State parties to the Covenant to issue authoritative decisions and pronouncements concerning how the Covenant is or is not implemented by States parties. This is why the Committee is so important in the overall effort to secure economic, social and cultural rights. The Committee holds two three-week long sessions in Geneva, in May and in November. In the future, the Committee may begin to hold an additional meeting each year in New York City, but this has not yet been decided. As a treaty monitoring body, the Committee is responsible for holding States parties to the ICESCR to their legal obligations to respect, protect, promote and fulfill the rights contained in the ICESCR. The Committee monitors treatment of poor and other disadvantaged groups and assesses whether governments are meeting their obligations. The Committee does this by:  Receiving the required States reports from governments every five years;  Receiving parallel or shadow reports from NGOs;  Requesting further information and clarification of particular issues that may constitute violations of rights contained in the ICESCR;  Conducting oral hearings where it questions representatives of States parties regarding laws and policies related to economic, social and cultural rights;  Listening to oral submissions from NGOs;  Assessing all of the information it has received throughout the review process;  Writing reports — Concluding Observations — evaluating each State party’s performance based on this information;  Developing law by writing and adopting General Comments elaborating on the content and meaning of specific rights and key implementation issues to assist States parties with their reporting obligations and domestic implementation of the ICESCR;  Reaching out to UN specialized agencies and programmes such as UNHCR, ILO, and UNICEF;  Occasionally, in emergency situations, communicating directly with governments to inquire about particularly serious or emerging situations.

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Determining Whether To Use The Committee Advocacy at the Committee should constitute just one of many strategies to improve conditions in your country. In deciding whether this is in fact a strategy you would like to engage at the outset you should consider the following two questions: Does the Committee have jurisdiction over your country? To be of assistance to your advocacy goals, the Committee has to have jurisdiction over your country. The Committee has jurisdiction over your country if your country has ratified or acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Once a government has ratified or acceded to the ICESCR they become a State party to it. If your government is not a State party to the Covenant, the Committee's procedures and mechanisms are not available to you. If, however, you think that the Covenant could be important for your work, you may want to try to convince your government to ratify or accede to it. Generally it is up to a government's parliamentary body to ratify or accede to a treaty, but your government's Foreign Ministry will also have a good deal of power over ratification decisions. If possible, you should contact your foreign ministry to learn more about the status of the International Covenant on Economic, Social and Cultural Rights in your country. Or you can look at the web-site of he UN Office of the High Commissioner for Human Rights at: http: //www.unhchr.ch/html/menu3/b/a_cescr.htm Can your work at the Committee feed into an existing campaign or initiative in your country? In COHRE's experience the NGOs that meet with the most success at the Committee are those which directly link their international efforts with a domestic campaign or initiative. Assuming you have convinced the Committee that the problem you have raised is within the scope of their work and a pressing concern, what actions or results can you expect? Concluding observations are published by the Committee about your government’s performance under the Covenant. Concluding observations can include very helpful language, including: A finding that your government has violated the Covenant; A statement urging that your government adopt new legislation, for example regularization of land ownership arrangements;  A statement urging the repeal of legislation, for example a law which discriminates against women will need to be overturned;  

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An appeal to your government to implement existing laws, for example laws allowing the government to requisition housing left unoccupied by owners; A request that your government not take a planned action that would violate the Covenant, for example a mass forced eviction; Encouragement from the Committee that your government use your input when taking a decision with a bearing on economic, social and cultural rights; A recommendation that your government provide specific services, policies, and institutions, for example that the government should construct low-cost rental housing, develop a comprehensive housing policy or create a national Commission on Housing. Letters to governments concerning emergency human rights situations involving pending and clear violations of the Covenant; and Written answers and video footage of government responses to questions you convinced the Committee to put to them.

But remember, even if the Committee issues a statement that assists your work (i.e., in the form of a concluding observation or urgent letter), it is unlikely that the government will implement the Committee’s recommendations without follow up activity from you. At the same time, many governments take their human rights obligations seriously, and the Committee’s activities may open up new opportunities for you to convince policy makers and judges, attract media attention and change public opinion.

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When is the best time to approach the Committee? State party reports are due to the Committee every 5 years. These reports should detail the status of implementation of all of the rights in the ICESCR. Once these reports are submitted, the Committee will undertake an initial consideration of the report at a meeting of the "Pre-Sessional Working Group" (normally immediately following a Committee session). During the PreSessional Working Group meeting the Committee drafts a "List of Issues" seeking further information and clarification from the State party. The Committee transmits the List of Issues to the State party for written response prior to the oral review of the State party. The List of Issues and the written response form the bulk of the oral review that generally occurs 6 months â&#x20AC;&#x201D; 1 year after the Pre-Sessional Working Group. The oral hearing occurs during a Committee session in November or May in Geneva. Delegations of the State party are asked to attend in-person for three 3 hour sessions to answer Committee questions. On the first day of the session NGOs have an opportunity to make oral submissions to the CESCR. During the oral review of the State party, however, NGOs do not participate, but can attend to monitor the proceedings. Your best chance of getting the Committee's attention to your concerns, therefore, is during the period when the Committee first begins to consider your country's report. You can find out what part of the reporting cycle your country is in now on the COHRE website, or by contacting the Secretary of the Committee, Mr. Alexander Tikhonov, atikhonov.hchr@unog.ch .

Committee Timelines The Committee's work with the Philippine government and NGOs concerning Presidential Decree 772 provides an example of the timeline you can expect in planning your campaign with the Committee:

1975 1976 1986 1970s and 1980s 1986-1991 1992

1993 1994 January

Dictator Ferdinand Marcos promulgates Presidential Decree 772, criminalizing squatting Philippines government ratifies the Covenant Marcos regime falls Philippines submits initial reports on compliance with the Covenant 100,000 people forcibly evicted yearly Passage of the Urban Development and Housing Act (UDHA), requiring inventory and distribution of land for existing squatters Filipino NGO holds meeting of regional and international NGOs active in policies surrounding the urban poor Filipino Senator complains that the UDHA is not being implemented Manila Chronicle runs two columns describing the UN Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 130

1994 May 1994 May 1994

April 1995 June 1995

November 1997

Committee on Economic, Social and Cultural Rights' concerns about potential housing rights violations in Philippines Filipino government appears before Committee, domestic NGOs actively lobby the Committee Filipino government floods the Committee with new information about housing issues during the session; the Committee decides to take more time to issue its Concluding Observations NGO alternative report released Committee releases Concluding Observations, including the statement that "the Committee urges that consideration be given to the repeal of PD 772 and PD 1818, and recommends that all existing legislation relevant to the practice of forced evictions should be reviewed so as to ensure its compatibility with the provisions of the Covenant." PD 772 is repealed.

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Committee procedures relating to NGOs To help you develop your activities with the Committee you need to understand the Committeeâ&#x20AC;&#x2122;s procedures and rules about NGO interaction. Provide Written Information to Committee Members In general, the Committee accepts written materials from NGOs at any time. However, for written materials to be most effective, they should take the form of an alternative or shadow report submitted in reply to or after the Government submits its report, and shorter documents in response to the State party's response to the List of Issues or fact sheets used to assist Committee members in understanding complex issues. At the same time, the Committee Secretariat maintains a 'country file' on every State party to the Covenant. You may submit any information you deem relevant to your country's compliance with the Covenant at any time, and request this be included in the country file of your country. Participate in the Pre-Sessional Working Group The Committee holds two three-week formal sessions each year where it reviews a number of countries. Before each session, five members of the Committee hold a Pre-Sessional Working Group. The purpose of the working group is to "identify in advance the questions which will constitute the principal focus of the dialogue with the representatives of the reporting states." NGOs can provide written or in- person information to the working group as long as it "relates to matters on the agenda of the working group." The working group usually meets at least six months prior to the actual consideration of a States party report, which means that if you plan to attend the working group and the consideration of your government's report, you will need to make two trips to Geneva. Participate in NGO Hearings Before the Committee It is important for NGOs to attend and make oral submissions at the NGO session. This demonstrates your commitment to the issues and it allows you to introduce yourself to Committee members and any government representatives who may be in attendance. On the first afternoon of each formal session in May and November, the Committee holds NGO hearings in which it allows NGO representatives to make presentations. This meeting is open and provided with interpretation and press services. It is important to remember that you will have to get official approval from the Committee Secretariat or Chairperson before actually speaking to the Committee. If you make an oral presentation, you will be expected to provide a written version of your speech to the Committee. Your oral submission can include a brief slide and video show. COHRE does not recommend showing videos unless it is very brief and you make available copies of the text in English, Spanish and French. Attend the Oral Review of Your Country's Global Report Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 132

The Committee generally holds three three-hour meetings to examine a State party report. If your government is presenting a report, representatives will likely attend this session to answer questions from the Committee about how well the government is doing in meeting its obligations under the ICESCR. Only governments, relevant specialized agencies and other international bodies may speak at these sessions, but they are open to the public. The Committee makes audiotapes of these sessions available to the public and you are permitted to videotape the sessions as well. These tapes can be very useful advocacy tools for domestic use. It is also possible to influence the questions the Committee members put to your government as the proceedings unfold, and it is very important that your organization attend these sessions. Meet Individual Committee Members When a country's report is up for review, one member of the Committee is named as the "Rapporteur" for that country. The Rapporteur takes the lead on deciding what issues are presented to the government and what is said in the Committee's Concluding Observations of the Committee about that country. Therefore, it is important that you meet with the country Rapporteur either at the Pre-Sessional Working Group or at the session when your country is under review. Participate in Days of General Discussion One day of each session, usually the Monday of the third week, is devoted to a day of "general discussion" to discuss a particular theme or right rather than a particular country. You should only plan to participate in this process if you are an expert in the theme or issue being discussed. If you are not able to participate in that way, you may want to find out what experts will be participating and offer them examples from your country to use during the discussions. Committee Timeline For The Review of a State Party Please note: Timelines can vary. Always check with the Secretary of the Committee, Mr. Alexander Tikhonov, atikhonov.hchr@unog.ch to confirm the stage your country has reached.

Month 1: Government submits report Month 7: Pre-Sessional Working Group: List of Issues drafted Month 13: Committee receives written response to List of Issues from State Party Month 19: Formal Session: Oral Review of State Party/NGO Oral Submission First Week of Formal Session Monday a.m.: Adoption of the agenda, organization of work, relations with UN organs and other treaty bodies, discussion on reporting procedures Monday p.m.: NGO Hearings Tuesday-Friday: Consideration of Country Reports (open sessions) Second Week of Formal Session Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 133

Monday-Friday: Consideration of Country Reports (open sessions) Third Week of Formal Session Monday-Friday: Consideration of Reports and Adoption of Concluding Observations (closed sessions) Friday: Discussion on reporting procedures

What is your government's role in the Committee process? Ultimately, your government has the power to make, or at the least allow or facilitate, the changes that you want to see in your country. The goal of the Committee processes is to convince governments to comply with the Covenant, and that should be your ultimate goal as well. Depending on your advocacy goals and your government's attitude, you can serve as a resource, a catalyst or a critic of your government. State Party Reports Article 16 of the Covenant requires any government that has ratified or acceded to the Covenant to provide reports "on the measures [it has] adopted and the progress made in achieving the observance of the rights recognized [in the Covenant]." After trying out various reporting cycles, the Economic and Social Council decided that governments should submit one global report (addressing its performance under every provision of the Covenant) within two years of ratifying the Covenant, then every five years after that. The Committee has written detailed reporting guidelines that describe the kinds of information the government should provide in its reports. These reporting guidelines will assist you in assessing the government's report to the Committee. Is it complete? Is it accurate? Have women's economic, social and cultural rights been reviewed? The reporting guidelines may also assist you in drafting your parallel or shadow report. After providing its report, your government will be invited to present the report in the first meeting of the Committee where the report is examined. The representative of the government is asked to make brief introductory comments and introduce its written replies to the List of Issues drawn up months before by the Pre-Sessional Working Group. (Ideally the State party provides its written response to the List of Issues to the Committee prior to the oral review of the State party). The Committee then reviews the response to the List of Issues article by article, asking the government representatives to respond to the Committee's oral questions. In the next periodic report, your government will be expected to explain the steps it has taken to implement the recommendations in the Concluding Observations. The Committee may also ask the government to provide Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 134

supplemental information, for example additional statistical data, before the next periodic report. Importance of the State party report The state report is the heart of the Committee's processes. Submission of the report triggers the Committee to schedule hearings about your country and to write Concluding Observations about your country's performance under the Covenant. You should be sure to obtain a copy of the report as soon as it is made public and familiarize yourself with it. You can obtain copies of these State reports either from the Committee Secretary, the Committee's or UN websites, or from your country's Ministry of Foreign Affairs. Should NGOs participate in the State party report? In many countries, NGOs become involved with their government's process of writing their reports, often trying to spur on their government to get the reports written. You have to decide whether it is a good idea to give your government input about your concerns as it writes the state report. The report writing process can be the best time to convince the government to collect certain new types of data, such as gender-disaggregated figures on poverty and homelessness. You might be better able to convince the Committee to recommend a particular action in its Concluding Observations if you can show that you alerted the government to the problem previously and the government did not respond even though it had the information and the opportunity to take the requested action. At the same time, you want to be cautious about becoming closely involved in the reporting process if your involvement will appear to "endorse" the government's report which may not adequately reflect your position. Also, if you think your government will use the information you have provided to "skew" its data and hide from the Committee the problems you have flagged, it may be better to save your time, resources and energy for your alternative report and presentations. When will the government appear before the Committee? Your government will be asked to appear before the Committee for two or three three-hour sessions during the official consideration of your government's report. You can find out which governments are scheduled for a particular session about a year before the session, and about six months before the relevant pre-sessional working group. However, you will not know for certain on which precise days your government will be scheduled to appear until just prior to the Committee session. What if your government's report is overdue? It could be that your government has not yet submitted an initial report to the Committee or is late in its submission of a subsequent report. If this is the case, there may still be opportunities to address the Committee. The Committee is very active about reminding overdue governments of their reporting obligations and, on occasion, has reviewed State party compliance even in the absence of a report. In these situations, the Committee appoints a Committee member to be a country Rapporteur. The country Rapporteur Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 135

investigates the situation in the country and the process goes forward without the government's participation. If this occurs with respect to your country, the Committee will especially need NGO assistance as it gathers information. In most cases, however, the Committee's reporting and review procedure is much less useful to your work without the government's participation, so you should pressure your government to participate in the reporting regime. Email the Committee's Secretary, Mr. Alexander Tikhonov atikhonov.hchr@unog.ch to learn whether there has been any formal pronouncement by the Committee naming your government as an overdue country in the reporting process to use in pressuring your government to participate in the process.

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Preparing for your participation in the Committee Attending a session of the Committee is just one small step in a long series of important activities. For your work with the Committee to have an impact, at a minimum, you must set the stage at home to prepare for the Committee session. Research  As a starting point, make sure that your work at the Committee will feed into an existing campaign, activity or advocacy programme at home.  Research your country's record with the Covenant and the Committee  Determine whether your country has ratified the ICESCR.  Next, find out what reports — if any — your government has already submitted to the Committee.  Then, find out what, if anything, the Committee has written or said about your government. This will help you determine whether your issue has already been noted by the Committee or whether you will have to start from the beginning.  Research the Committee's record on your specific area or issue of concern  Once you have retrieved all this information, you should decide where the Committee stands on your concerns. Has the Committee issued a General Comment on your issue area?  Retrieve copies of your Government's reports to the Committee. Your government's reports and written responses to the Lists of Issues are the heart of the Committee's work, and you need to know what your government has told the Committee. The best way to access past reports (if any) is at the website of the UN High Commissioner for Human Rights.  The most important report will be the most recent report that your government is presenting at an upcoming session, and you will most likely have to get that directly from your government. If you have trouble getting a copy of the report, you can email the Secretary of the Committee, Mr. Alexander Tikhonov at atikhonov.hchr@unog.ch Analyse Compare your country's performance with its obligations. To get the Committee to view the human rights situation in your country the same way you do, you will have to convince Committee members that your government is not meeting its obligations, or is about to violate, the ICESCR. An analysis of your country's performance should look at: Government Report  Has your government adequately responded to the Committee's guidelines for reporting on your issue of concern?  Did they consult with NGOs during their reporting process?  Is the information provided complete and accurate in light of your knowledge and observations Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 137

Government's Actual Performance  What has your government done to either remedy or exacerbate the problem you want to address?  What rights are affected by the problem?  What would you like your country to do to remedy the problem you want to address? In evaluating your government's performance under the Covenant, you should focus first on situations where government actions are the problem, such as when the government is tearing down housing and evicting poor people from their homes. Next you should consider situations in which the government is failing to protect people from the actions of third parties that are violating or jeopardizing their economic, social and cultural rights. Third, you should look at actions the government should be taking to provide minimally acceptable conditions for people, such as providing important vaccines to poor children. Prepare and submit an alternate or shadow report Just as your government's report and response to the List of Issues is the heart of the Committee's interactions with the government, an alternative report to the Committee on the government's compliance with the Covenant will be the heart of NGO work with the Committee. The alternative report should contain all the information you want the Committee to use when it questions your government and writes its concluding observations. The formal Committee rule 69.3 about all material submitted by NGOs is that it must be "of direct relevance to matters under consideration by the Committee, be reliable, and not be abusive." There are many excellent alternative reports to the Committee and you may want to ask COHRE and other NGOs for examples of reports to give you ideas about how to present the information you want the Committee to have. Following is a list of suggestions based on COHRE's experiences of the elements your alternative report should include:  a well-written executive summary of no more than three pages  a vivid and specific description of the problem or problems of concern  a statement of which provision or provisions of the Covenant you feel the government is violating  the report should be organized by articles of the Covenant and should provide an analysis of the government's purported position/action as contained in their report followed by an overview of the actual situation as understood and experienced by NGOs  an overview of statements on this government and this issue by other international human rights mechanisms and the relevant regional mechanisms  a list of the abbreviations used in the report, particularly abbreviations of national institutions and laws  a list of the NGOs that support and/or contributed to the report  the report should have a brightly coloured cover  the report should be in large, easy-to-read font Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 138

    

if the report is not written in English, the executive summary should be translated into English if the report is covering all the provisions of the Covenant, the body of the report should be no longer than 30 pages if the report is covering only a few Covenant provisions or one issue, the body of the report should be around six pages a list of 15-20 suggested questions you think the Committee should ask your government. a separate chapter containing at least 5-10 suggested recommendations you think should be directed at your government by the Committee.

When to submit the alternate or shadow report If your alternative report is to have an impact, it must be submitted in a timely fashion. At any time that it is finished, it can be submitted to the Committee Secretariat for inclusion in the relevant country file. However, to have an impact, your report should be put before the Committee members at key moments in the Committee's procedures. Ideally, you should send your report to the members participating in the Pre-Sessional Working Group before it takes place. Additional copies should be provided to the Working Group members during the session. Within a month before the actual session, you should send an updated copy of the report to each of the Committee members in their home institutions. When travelling to Geneva for the actual review of your country, bring enough copies of the report to distribute to Committee members and others. Should you work in coalition with other NGOs? Working in coalition with other NGOs to advocate with the Committee has many advantages. Not only will working in coalition allow you to address more issues, or handle particular issues more thoroughly, but it will also help to convince funders, the Committee and your government to respond to your concerns. One model is to solicit other NGOs to address particular provisions of the Covenant in writing, using a model format and combining all the provisions into one alternative report. The usual drawbacks to using coalitions include defining and maintaining leadership roles, agreeing what information to release and when, what the "bottom line" negotiating positions will be, and who can speak for the coalition. In addition, when working in coalition to address the Committee, there may be challenges funding and coordinating the oral presentations.

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What to Expect: How Does the Committee Make Decisions? To assess State party compliance with the ICESCR, the Committee compares government performance with its obligations under the Covenant. The Committee generally relies on the factual information provided in the State reports and by NGOs. There are, however, other sources you should examine to assist in a prediction of what the Committee is likely to say in its Concluding Observations after it evaluates your government’s report and your interventions. The Law The key sources of the law that the Committee will be using are:  The Covenant on Economic, Social and Cultural Rights  Limitations in your government’s original ratification of the Covenant (When a government ratifies a treaty, it may make an additional statement that there are certain provisions of the treaty which it will not be bound by, or that it will only be bound by in a certain way. These limitations on ratification are called reservations, declarations and objections.)  General Comments of the Committee. The Committee’s Jurisprudence and Precedents (You should be sure you know everything that the Committee has written about your government. If the Committee has published Concluding Observations about other countries that might have similar issues to yours, for geographic or other reasons, then the Committee may think it has to treat your government similarly and you should know what to expect. )  General Principles of International Law  International and Regional Treaties and Treaty Bodies  Other arrangements of your government such as bilateral treaties or arrangements with international aid entities that affect its ability to fulfil its economic, social and cultural rights obligations.  Customary International Law. Some rules are so ingrained and widely used that human rights judges are willing to apply them in the same manner as if they were written down and formally binding on the government in question. When this occurs, the widespread rule is called customary international law. The Merits The Committee will have to make factual decisions about the actual situation in your country. When it writes its Concluding Observations the Committee will look to the following three main sources of information:  States Reports/Governmental Input Unless your government refuses to submit a report, the first source of information the Committee receives about economic, social and cultural conditions in your country is the government’s report.  UN Agencies The Covenant says that specialized agencies can submit reports to the Economic and Social Council "on the progress made in achieving the Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 140

observance of the provisions of the present Covenant falling within the scope of their activities." One example of this would be the situation of a country in which the government is blocking the provision of food aid to a drought-stricken area in its own territory or that of another country. It could be that the Food and Agriculture Organisation of the UN (FAO) would be interested in providing information to the Committee about that country’s compliance with the right to adequate food under the Covenant. Under rule 68 of the Committee’s rules of procedure, specialized agencies can participate orally in formal Committee sessions as well, and have the right to speak during the consideration of government reports. In practice, specialized agencies have commented specifically on the reports submitted by governments. The Committee’s General Comment 2 notes that the agencies have not participated in the Committee proceedings a great deal. The International Labor Organisation (ILO) and UNESCO have participated the most. In addition, the Committee itself researches relevant reports by the agencies and includes in the country files maintained by the Secretariat. Be aware of what the agencies are saying about your concern so that you can point it out if it is helpful or refute it if it is not. 

NGO Information The Committee has been unusually willing to provide formal, open access to NGOs and can use NGO information to inform its Concluding Observations. The Committee has even been criticized for its willingness to use NGO information. This puts a responsibility on NGOs to ensure that every claim you make is properly documented.

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Country missions as an advocacy tool Thus far the Committee has conducted missions to Panama and the Dominican Republic. Although these missions can be useful for media purposes, the Committee is extremely under-resourced, and future official Committee missions are likely to be the exception rather than the rule. However, individual Committee members have been willing to take unofficial missions in their personal capacities. It may be very useful for you to arrange to bring a Committee member or member of the Secretariat staff to your country to educate him or her about a particular situation. Follow-up Domestic Activities The Committee's presumes that State parties will take the Concluding Observations seriously but they are enforceable only to the extent that your government is convinced to follow them. There is unfortunately no guarantee that the Committee's views will be fully implemented. It is the job of NGOs to do the convincing, using the criticism and continued scrutiny of a UN human rights body as a tool. Following are some follow-up actions that NGOs have successfully used. 

Publicizing the Committee's actions As in the example of the Philippines given above, the press is a key element in your advocacy work.

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Implementing Committee findings in domestic law and practice in the courts There are a number of ways to convince courts to apply the international standards and recommendations of the Committee as binding domestic law. Many litigators refer to international human rights treaties as well as General Comments in their legal arguments to courts and other tribunals, highlighting the relevance of these documents to the case at hand. To support written submissions, international human rights experts can be called as expert witnesses to discuss international human rights standards. NGOs and academics can also write briefs highlighting the international human rights angle in the case before the court.

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Legislative uses The Committee's statements can form the basis of legislative advocacy, especially when combined with effective media work. Language from the ICESCR can be introduced into legislative records as history of particular legislation to soften or enhance the effect of particular language. Courts can also be encouraged to use the Committee's Concluding Observations and General Comments to interpret statutes.

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Follow-up with the Committee As discussed above, the Committee has on many occasions asked countries for additional contact, either data or information about follow-up Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 142

action, without waiting for the next five-year report. If the Committee felt strongly enough to request follow-up action on your issue, it can be a strong ally to you and you should be an active participant in that process, reminding both the Committee and your government about the need for immediate action. ď&#x201A;ˇ

General discussions The Committee usually sets aside one "general day of discussion" to discuss a particular theme or issue. The General Comments grow out of these days of discussion. As a recognized expert in a particular issue, you may be invited to participate in a general day of discussion.

ď&#x201A;ˇ

New declarations on your issue The UN expresses concern about human rights violations in many settings and at many levels. It may be helpful to convince other bodies of the UN to issue declarations, guidelines and other pronouncements on your issue to keep attention on it and to reflect recent improvements in how the issue is viewed. These "sub-treaty" standards will have less weight and effect than a treaty, but can be helpful.

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EDITOR Note: all worksheets must have the same layout format, with distinguishing edge of page border or else different coloured paper.

WORKSHEETS Worksheet 1: Housing Rights Squares Find a different person to answer each question. Write the answer and the name of the person who gave you the answer in the space beneath each question. Name any housing right.

Name any law or covenant that protects housing rights.

Name any housing rights violation in your country.

Do you think that housing rights are equal in importance to other human rights?

Name an NGO which promotes housing rights in your country.

Name any economic social or cultural right in addition to housing rights

What kind of housing rights violation disturbs you most?

Is the government of your country obliged to provide housing?

Name a wellknown defender of human rights

Name a housing right which refugees should have.

Name a violator of housing rights in hour country.

Is the right to access water part of housing rights?

Name two facilities that a healthy house must have.

Do you agree? You should have the right to a house close to employment options?

Do you agree? You should have the right to have a house made of modern materials (eg bricks) instead of natural

Do you agree? Informal settlements (slums) will always exist.

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materials (eg mud or bamboo) Worksheet 2: What do we mean when we say adequate housing? EDITOR: Please make a two page handout of photos. Suggestions below. Please only use photos that are very clear. Look at these pictures In your group, discuss what adequate housing means. Use the headings below to guide your answers.

EDITOR WE NEED PHOTOS OF E.G.: Picture of a huge mansion for sale (see price) Squatter camp, showing health, water, energy, heating, washing, refuse, etc problems Picture of rubbish truck. Clinic Forced eviction Rent increase notice Physically disabled plus housing Shack in the rain School Road Local building materials tent

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(EDITOR: leave adequate spaces for notes to be written) Legal security of tenure

Availability of Services, Materials, Facilities and infrastructure

Affordability

Habitability

Accessibility

Location

Cultural Adequacy

Other

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Worksheet 3: Questionnaire on housing rights. Read each statement and mark whether you agree or disagree. Use the comments column to elaborate on your answer. PLEASE base your responses on your immediate feeling as you read each statement.

Statements The right to housing is equally important to other human rights.

Agree

Disagree

Comments

Housing Rights are only an issue in the developing world. There is no clear definition of a housing rights violation. If property rights are guaranteed, there is little need to be concerned about housing rights. A government does not have to take immediate action to promote and protect Economic, Social and Cultural Rights. The only effective way to protect housing rights is through legislation. In a free market, the government does not have to ensure that people have access to affordable housing. As long as a dwelling has the basic amenities (running water, sanitation, energy for cooking) it should be considered adequate.

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Statements Housing rights cannot be fully implemented because the costs involved are unaffordable.

Agree

Disagree

Comments

National laws do not recognise housing rights, thus, neither can international law. Adequate housing must be near to employment options, health care services, schools, child-care centres and other social facilities. Poor people live in slums because they are too lazy to help themselves. Generally, residents of subsidised housing are taking advantage of the system. Homeless people are usually drug addicts or drunks. The right to housing cannot be enforced through the courts. When national wealth increases, housing conditions and home ownership will automatically improve.

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Worksheet 4 : Housing Rights In My Country 1. What are the principal housing rights problems in your country? List five in the chart below.

Housing Rights Problems

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2 What is the attitude of the government and the public in your country towards these housing rights problems?

3 List three of the principal factors causing housing rights violations in your country.

4 List three of the principal factors that can be seen as supporting and promoting housing rights in your country.

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Worksheet 5 : Case study on Rights-based intervention Acknowledgement: Ravindran, D.J. (2003). Economic Social and Cultural Rights, Concepts and Tools. Facilitating learning Process. Bangkok: Forum Asia, Asian Forum for Human Rights and Development, pg 18

Ujung Gading Jae village is situated more or less 600 km from the city of Medan in Malaysia. The village has about 1000 families with a total population of 5000 people. In this area all lands are traditionally owned. The people opened an area of 3000 Ha of land for cultivation and planted traditional crops which they sold on the local market. The community was not poverty-stricken but faced the problems of a poor community. Their health was not good, with a high infant mortality rate and maternal mortality rate. There was no school close to the village and therefore most children did not have access to a regular school. Employment was based on the seasons and during some parts of the year, the people were unemployed or under-employed. In May 2001, the village was affected by severe flooding and the people had to move out of the area. They lost all their personal belongings, livestock and seeds. Flooding was caused by the closing of a waterway for building a foodprocessing factory by a big plantation company. The company had originally offered to buy the land from the people but they had refused since it was their traditional land and also the money promised was too little. The company had told the people that some of them would be given employment in the company. The company also said it would establish small production units related to food processing and packaging industry. The company argued that by getting out of their subsistence farming and becoming part of the modern industry the community would be able to become rich. Since they lost everything in the floods, the people are not able to begin their normal life again and they continue to stay near the city in a temporary camp. The company and the local government are saying that it is the mistake of the people that they refused to sell the land to the company and now they are suffering as a result. The government and the company are also saying that they cannot be blamed if there was excess rain that season. The people immediately want food, shelter, clothing, medicine and school for their children. The community is now divided â&#x20AC;&#x201C; one group wants to forget about their land and become part of the food processing industry. The second group wants to reclaim their land, but they would need assistance for buying seeds, implements etc. The last group wants to do odd jobs like domestic help, work in restaurants and not return to the area. You are a human rights group. Some members of the community have approached you for help. Develop a plan for helping them by applying Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 151

human rights principles. Explain why you are following this approach and not just providing mere welfare assistance to the people.

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Worksheet 6 : The Rights of the Child from Declaration to Convention (Acknowledgements: Flowers,N (2000) The Human Rights Education Handbook. Human Rights Resource Centre, University of Minnesota)

The Convention on the Rights of the Child provides an excellent example of the evolution of a UN convention. In 1959, a working group drafted the Declaration on the Rights of the Child, which consisted of ten principles that set forth basic rights to which all children should be entitled. However, a declaration in not legally binding law; these principles needed to be codified in a legally-binding convention. The drafting process lasted nine years, during which representatives of governments, intergovernmental and specialised agencies like UNICEF, UNESCO, the International Committee of the Red Cross, and non-governmental organisations such as Save the Children, worked together to create consensus on the language of the convention. The resulting Convention on the Rights of the Child (CRC) contains over fifty articles. The Childrenâ&#x20AC;&#x2122;s Convention was adopted by the General Assembly in 1989 and was immediately signed by more nations in a shorter period of time than any other UN convention. It was ratified by 61 states and as a result entered into force in 1990. Furthermore, the total number of member states that have ratified the CRC has surpassed that of all other convention. As of Fall 2003, only two member states had not ratified it: Somalia and the United States, although both have signed the Convention. A treaty body called the UN Committee on the Rights of the Child monitors compliance with the Convention on the Rights of the Child. This Committee receives and considers reports from States Parties. The Committee uses the understanding it has gained from examining state reports to produce General Comments. These are authoritative interpretations or guides to the rights laid out in the treaty, which aim to promote the implementation of the Convention and to assist State Parties in fulfilling their obligations to the Convention. They explain what a specific right really means and consists of, and as such define what constitutes a violation.

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Use the case study to complete the diagram of the process of making a Convention EDITOR PLEASE Fix up the flow-chart

_________________________________

drafts the Declaration

(fill in missing words here)

__________________________________

by the UN General Assembly

__________________________________

by member states

__________________________________

by member states

__________________________________

when a specified number of states have ratified it

_________________________________

monitors compliance with it

and writes_________________________

to clarify and interpret the meaning of the treaty

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Worksheet 7 : Some Questions about ESC Rights Use the articles A guide to key provisions of the International Covenant on Economic, Social and Cultural Rights and An overview of ESC Rights, as well as your group’s own experiences, to answer these questions.

1. What are some of the challenges we face in implementing ESC rights?

2. What are the State’s obligations with respect to ESC rights?

3. Explain the concept of progressive realisation with respect to ESC rights.

4. What is a government’s obligation with respect to the non-discrimination clause in the International Covenant on Economic, Social and Cultural Rights?

5. Name some other sources of international standards on ESC rights.

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Worksheet 8 : Special Beneficiaries of Housing Rights       

Women and Housing Rights Children and Housing Rights Disabled Persons and Housing Rights The Elderly and Housing Rights The Housing Rights of the Poor Occupied Populations and Housing Rights Refugees, Asylum Seekers and Internally Displaced Persons and Housing Rights

1. What are the specific housing issues for each of these groups?

2. What are the housing rights of each of these groups in International Law?

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Worksheet 9 : Violations of Housing Rights Are these acts of omission or acts of commission? 1. Failing to monitor the realization of economic, social and cultural rights, including the development and application of criteria and indicators for assessing compliance 2. Actively denying of ESC rights to particular individuals or groups, whether through legislated or enforced discrimination 3. Failing to enforce legislation or put into effect policies designed to implement provisions of the ICESCR 4. Actively supporting measures adopted by third parties which are inconsistent with ESC rights 5. Failing to regulate activities of individuals or groups so as to prevent them from violating economic, social and cultural rights 6. Adopting any deliberately retrogressive measure that reduces the extent to which any ESC right is guaranteed 7. Failing to utilize the maximum of available resources towards the full realization of the Covenant 8. Reducing specific public expenditure without adequate measures to ensure minimum subsistence rights for everyone, which results in the non-enjoyment of ESC rights. 9. Failing to meet a generally accepted international minimum standard of achievement, which is within the Stateâ&#x20AC;&#x2122;s powers and ability to meet 10. Failing to take into account the Stateâ&#x20AC;&#x2122;s international legal obligations in the field of ESC rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations.

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Worksheet 10 : Can forced evictions be justified? Scenario one: The Olympic Games The International Olympic Committee has agreed that the Olympic Games will be held in your country in 8 years time. Everyone is excited because it will bring lots of revenue to the country, lots of money for development of infrastructure, millions of tourists and will also bring lots of fame and prestige to the country. The problem is that people are already living on the land chosen for building the big stadium village that will house the Olympic athletes. In fact there is a large informal settlement on the site, where nearly 3000 people live and work. What do you think? Will the government be justified in evicting people from this informal settlement to enable them to build the Olympic stadium and village? Under what circumstances would you accept such an eviction-taking place?

Scenario two: The hydroelectric scheme A contract is about to be signed for building a huge hydroelectric power plant on a major river in your country. Foreign investors are ready to be involved. At the moment your government has to buy electricity form a neighbouring country, but they are promising that this new scheme will mean cheaper electricity as well as more people getting electric connections. The big problem: there are a number of villages which are in the way of the big dam which will have to be built as part of this scheme. When the dam is built the villages will be covered with water. What do you think? Will the government be justified in evicting people from these villages to enable them the hydroelectric scheme? Under what circumstances would you accept such an eviction-taking place?

Scenario three: The inner city clean up The central part of the capital city in your country has been getting more and more run-down over the past ten years. Landlords now rent out office blocks for people to live in, but they have not maintained the buildings, and they have allowed uncontrolled subletting to occur. Businesses have moved their offices to the suburbs because they do not like the high levels of crime, the generally dirty streets and apartments and the large numbers of poor people living in the area. But now the city government, backed by the landlords, wants to attract businesses back to the centre of town. They want to get rid of the residents and renovate the buildings to make the centre of town more attractive again. What do you think? Will the government be justified in evicting people from these buildings to enable them to â&#x20AC;&#x153;renewâ&#x20AC;? the central business district? Under what circumstances would you accept such an eviction taking place?

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Scenario four: The rubbish dump In your town rubbish is deposited on a huge dump-site at the edge of the city. About 250 families have built shacks on the dump site, and the people make their living buy sorting through the rubbish to find things that can be sold or reused. The city authorities are worried about this situation â&#x20AC;&#x201C; rubbish dumps are very unhealthy places to live, and certainly do not provide safe environments for children to grow up in. They want to evict the families from their homes on the rubbish dump. What do you think? Will the government be justified in evicting the families from the rubbish dump? Under what circumstances would you accept such an eviction taking place?

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Worksheet 11 : The Grootboom Case – The Right to Shelter Acknowledgements: Debbie Budlender, Women’s Budget Initiative

In South Africa, socio-economic rights are written into the Constitution and Bill of Rights. In particular the constitution says that every person has a right of access to adequate housing and protection against arbitrary evictions and demolitions. The Constitution says that government must ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights. in terms of fulfilling, the Constitution recognises that this will take time and money. It says that he government ‘must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation ‘ of rights, Rights for children are even stronger than those for adults. The Constitution says that children have an absolute right to basic nutrition, shelter, basic health care services and social services. These rights do not depend on the government’s resources. The Grootboom case was one of the first cases to test government’s responsibility to protect the socio-economic rights of citizens. The case started when about 900 adults and children (one of whom was called Grootboom) from the Wallacedene squatter area in the Cape Province said that the government had a duty to provide them with adequate temporary shelter or housing. The case first went to the High Court. The facts The applicants had lived in Wallacedene for many years. They moved onto vacant private land to have better living conditions. After moving, they were evicted from the land by the owner. The municipality wanted to buy the land and assisted the owner with the eviction. After the eviction, the applicants could not return to Wallacedene as their previous shacks were now occupied by new residents. Further, during the eviction, the materials they had used to build their new shacks were destroyed. The people were left without any shelter or housing materials. The people camped on a sports field next to the community centre. They asked for, and won, a temporary court order. The order said that all the children and one parent for each child who needed supervision must be given accommodation in the Wallacedene Community Hall. In their application for a final court order, the people argued:  The government must provide them with temporary shelter as part of their right of access to adequate housing and children’s right to shelter.  This was the government’s minimum duty while it took steps to progressively realize their full right to adequate housing. The government said:

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   

The government has policies and plans in place to realise these rights, but these do not include a right to temporary shelter. The government does not have the money to provide temporary shelter The applicants have no right to ‘jump the queue’ for housing assistance Children’s shelter rights in the constitution mean a place of safety – not housing that includes the family.

The High Court ordered the government:  To provide the children with shelter until the parents were able to provide shelter for the children  Also to provide the parents of the children with shelter, as this is in the ‘best interests ‘ of the children  To present reports to the Court on the steps they had taken to implement the order within three months of the date of the court order. The Court said that the minimum kind of shelter includes tents, portable latrines and a regular supply of water. The Court also said that:  The group of people who brought the case must have an opportunity to comment on the proposals made by the government on how to provide shelter. The court said that to win a case against government on these socioeconomic rights, applicants must prove that government is not implementing a ‘rational’ or ‘good faith’ programme that will help to advance the realisation of the rights concerned. The Court said that to win the case, the government must present “clear evidence that a rational housing programme has been initiated at all levels of government in the context of the scarce financial resources.” The government was not happy with the judgement and took it on appeal to the Constitutional Court. What arguments, including arguments about budgets, would you use in arguing before the Constitutional Court if you were representing (a) The government and (b) The community?

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Worksheet 12 : A Pending Mass Forced Eviction - The Case of Beedieville, India The Municipal government of Bangalore, India has just announced its intention to evict a neighbourhood called ‘Beedieville’, set on 2.3ha of land on the outskirts of Bangalore. Beedieville is a very poor community, established by the residents in 1974. It is now home to 12,000 families or roughly 60,000 people. The majority of the residents are women and children. A considerable portion of the community is disabled to varying degrees. Most of the residents are employed in a local factory that makes ‘Beedie’ cigarettes, hence the name Beedieville. The average family earns 1000 Rupees a month. The community has sporadic supplies of water and electricity supplied by the local government, and the residents have been paying municipal fees since the early 1980’s. Some houses have telephones and televisions. Drainage remains a severe problem, and floods regularly inundate the area. No garbage services are available to the community and emergency vehicles such as ambulances or fire trucks cannot enter Beedieville due to the tiny size of the paths that criss-cross the slum. Officials from previous administrations of the Bangalore Municipal Authority (BMA) had given assurances to the residents of Beedieville that they could remain safely on the site of the community, even though they did not have legal title to remain there. In essence, however, the dwellers did have a form of informal security of tenure. The ownership of the land is in dispute. The BMA claims that the land is public land and thus owned by the BMA, while a rich local businessman, a Mr. Ramesh Sen, claims he owns the land. A protracted court battle has been waged during the past 30 years, but has not yet been resolved. As is commonly the case, many of the original settlers of Beedieville have rented out small shacks at the back of their land plots and thus act as informal landlords to some of the newer residents who have come to the city in search of work. The current BMA administration, however, now wishes to re-possess the land where Beedieville is located and to use it to build a new high-tech research park. The first the residents heard about the planned eviction was from an administrative eviction order issued by the BMA. A range of foreign companies have already indicated their interest in establishing operations there. The BMA’s eviction order for re-possession of the 2.3ha plot, orders the entire community to vacate the land within 20 days. The BMA has promised the residents a resettlement site some 50km from Beedieville, but has said that the residents will need to buy plots at the resettlement site at the going market rate of 800 Rupees per month.

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The residents have found a local NGO to assist them and are now determining what their legal strategy will be to resist the pending eviction. The community is desperate not to leave their beloved Beedieville, though six families have already moved. Issues to Consider in Making Your Case Although this case is fictional, it is very much based on real circumstances. Every year tens of millions of people are forcibly evicted from their homes throughout the world. There is nothing exceptional about the case of Beedieville. Bearing this in mind, please consider the following issues in making your case, and make sure that these are addressed in some way during your teamâ&#x20AC;&#x2122;s presentations 1. Is the planned eviction consistent with international human rights law? If so, which treaties and other standards would allow such an eviction? Remember, there are various groups of persons potentially affected by the planned eviction. 2. Is the planned eviction, on the other hand, a violation of international human rights law? If so, which treaties and other standards would prohibit such an eviction? 3. Which standards are relevant in this case? In addition to general treaties, which additional standards could be used in this case? Are there any General Comments which might be pertinent? Assume for the purposes of this exercise that India is a signatory to all the international covenants and treaties. 4. In addition to legal ground for or against the eviction, which procedural grounds could be argued as a basis to carry out or prevent the planned eviction? 5. Be sure to address every fact in the case description. 6. What role could the United Nations play in the present case? Are there any UN procedures that could be invoked to justify or avert the planned eviction? Order of Proceedings: Opening Statement Team BMA Opening Statement Team Beedieville Arguments Team BMA Arguments Team Beedieville Questions by Team Tribunal Cross Examination by Team BMA Cross Examination by Team Beedieville Deliberations by Team Tribunal Judgment by Team Tribunal

2 minutes 2 minutes 15 minutes 15 minutes 15 minutes 10 minutes 10 minutes 5 minutes 5 minutes

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Worksheet 13 : Developing a plan for Progressive Realisation of a State housing rights obligation.  

 

Select ONE of the State’s obligations with regard to the progressive realisation of housing rights in your country. Use the framework provided below to outline a plan for monitoring the State obligation you selected. Consider how this plan would address gender issues related to housing rights. Apply the steps from the perspective of an NGO. Write your plan for monitoring progressive realisation of this obligation below.

STATE OBLIGATION: ________________________________________ 1. SET BENCHMARKS  Explain the process you would follow to set benchmarks for monitoring in this case.  Decide how to obtain the necessary information.  Decide who should be involved in this process of information gathering and explain why.  Ensure that gender issues are considered.

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2. DEVELOP INDICATORS  Describe indicators that could be used to monitor progressive realisation.  Decide who should be involved in developing the indicators. Explain why.  Ensure that gender issues are considered.

3. COLLECT DATA  Identify some of the important steps in the data collection process.  Decide who should be involved and why.

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4. FORMULATE POLICY OBJECTIVES  How can NGOs use monitoring to promote legislative and policy change?  Who should be involved and why?

5. STRATEGY EVALUATION  Evaluate what challenges you might face in putting your plan into practice.

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Worksheet 14 : Potential Objectives of Monitoring In the chart below are examples of purposes of monitoring. Complete the table in relation to your organisation. 

 

For which of the purposes listed does your organisation conduct monitoring activities? Indicate your answer by placing a check beside the relevant purposes. For what types of housing rights issues does your organisation conduct monitoring activities? Provide some examples of monitoring activities that your organisation might undertake. Purposes

Types of Housing Rights Issues

 Providing immediate assistance

 Education and mobilization

 Monitoring to assess progressive realisation

 Litigation

 Undertaking legislative advocacy and policy formulation

 Making submissions to intergovernmental agencies

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Monitoring Activities e.g., gathering first hand information from victims

Worksheet 15 : Conducting a fact-finding mission a) Define a Precise Focus. 

What is the scope of your investigation?

b) Establish Clear Criteria. 

What criteria will you use for determining the reliability of the information you gather?

c) Identify the Sources of Information. 

Who is/are the victim(s)?



Who is the alleged violator?



Who are the witnesses? - those who saw the event - those who would know the background



Who can help identify additional sources?

d) Identify Written and Documentary Evidence. 

What documentary evidence is available that can help your investigation?



Is the information reliable?

e) Conduct On-site Inspection. 

What should be done before visiting the site?



What should be done during the on-site visit? Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 168



What should be done after the visit?



Who can assist with the investigation?

f) Determine the Level of Proof Required. 

What level of proof is sufficient to arrive at reasonably founded conclusions?



What factors impact on the establishment of the level of proof?

g) Corroboration. 

How will you cross-check the information you have gathered?

h) Human Rights Standards 

What human rights standards would you apply in this case?

Some additional questions to consider: 1. Once you have completed your investigation and prepared your report, where should you send it? 2. What additional action should you undertake to ensure that housing rights are realized?

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Worksheet 16 : Presentation to the Board of Directors Read the case study you have been given. Develop an argument to be presented to the Board of Directors of a National NGO about how and why the organisation should adopt the campaign you recommend to address the rights violations in the case study. In developing your argument and designing your campaign, you should incorporate all the aspects addressed in this training workshop.  Identify the rights issues/violations involved, being as specific as possible  Cite the relevant provisions of the national constitution, if applicable, as well as provisions of the ICESCR, General Comments and other conventions, as applicable  Specify the right or rights on which you are particularly focussing  Identify the actors and the role they have played  Identify the obligations that have been violated and by whom  Specify the actors the campaign should focus on  Describe how you will build in participation and empowerment/capacity building elements into the design, implementation and evaluation of the campaign  Describe the information and documentation that will need to be monitored, gathered and/or developed and explain how it will be monitored/gathered/developed  Propose the strategies the organisation should follow to ensure respect for the rights involved and explain why these strategies are the most promising The Board will be listening to a lot of presentations, and so you will want to develop a creative and engaging presentation to get their attention. You will only be allowed ______ minutes for your presentation

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Worksheet 17 : Planning for using the UN Committee for Economic, Social and Cultural Rights

Your country is a signatory to the International Covenant on Economic, Social and Cultural Rights. It should have submitted a report to the committee last year, but has not done so. What is more, there is a huge spate of threatened forced evictions in the country at the moment. Some of the evictions have already taken place. You are a group of NGOs and CBOs concerned with housing rights, and you are meeting to discuss how you can pressurise your government to honour its international obligations.   

Do you think you could use the Committee in any way to meet your goal? If not, why not? What alternative strategies will you use? If you can use the committee, how will you do it? Develop a plan of action for what you will do, when you will do it, and so on.

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Worksheet 18 : Brazil- who owns the land? Of the 165 million people in Brazil, fewer than 50 000 own most of the land. At the same time, approximately 42% of all privately owned land in Brazil lies idle. As a result of these inequalities, Brazil has seen the evolution of Sem Terra, a popular movement of landless Brazilians who demand land reform and implement thins demand by “squatting” on uncultivated land and resettling people on this land in massive numbers. Sem Terra estimates that the idle land in Brazil would be enough for 3 million hungry peasant families to live on. With this form of resettlement comes forced eviction carried out by those who oppose the redistribution of Brazil’s land: private landowners backed by the police and privately funded paramilitary groups. The Brazilian Movement in Defence of Life and the Popular Front Against Eviction plays an active role in combating abuses of housing rights and helping to promote the active participation of poor people in community leadership and decision-making. In Rio de Janeiro, over 28 000 families without proper homes are united in that Popular Front, which supports the city’s threatened communities. The Front keeps a list of low-income communities threatened with forced eviction and currently there are 106 communities on the list. The Centre on Housing Rights and Evictions, in their Global survey 6 on Forced Eviction, reported that since 1989, there had been periodic evictions of residents from Barra do Tijuca , a protected mangrove ecosystem around a lagoon on the southern outskirts of Rio de Janeiro. A total of 25 000 people living in 56 favelas and other poor communities in the areas had undergone, or were threatened with eviction. On the ten-square-kilometre site, the real estate and construction company, Carvalho Hoskens, planned to build highrise condominiums comprising 45 000 luxury apartments and offices. The company obtained title ot the property from the city authorities, even though the site was public land and therefore could not be sold legally. Nevertheless, after the Supreme Court in Brasilia ruled that the original settlements were illegal, Mayor Cesar Maia of Rio ignored a wave of domestic and international protest and pressed ahead with the evictions. At the end of August 1994, more than 300 armed municipal police and other officials forcibly evicted all 83 families of the Via Parque fishing community in Barra do Tijuco and bulldozed their houses. Although the residents resisted peacefully, somewhere beaten with clubs. The community leader who had refused to co-operate with the property developers was killed, the 20th such leader to be assassinated since the start of the land conflict. The families were eventually resettled between two dangerous favelas elsewhere in Rio, in tiny houses without water, electricity, toilets, doors or even roofs. The city authorities categorically rejected all compensation claims submitted on behalf of the victims, just as they had refused to hear the community’s lawyers prior to the evictions. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 172

Worksheet 19: Case study activities Activity 1: Getting familiar with the facts  What housing rights violations occurred in the case study?  Who were the victims of housing rights violations?  Who were the violators of housing rights?  What other Human rights violations occurred? What is the interrelationship between the violations of housing rights and of the human rights violations? Activity 2: Is the State violating the ICESCR?  Is the State in the case study violating the Covenant on ESC Rights with regard to “forced evictions”? Explain your rationale. The following information in the Resource Manual will be useful in answering this question: Acts constituting violations of housing rights; information on forced evictions: the Limburg Principles and Maastricht Treaty. Activity 3: State obligations regarding progressive realisation  What are some of the relevant State obligations to “respect, protect, promote and fulfil” housing rights in this Case?  Does it appear that the State is meeting these obligations? Explain.  DO you think that the State is taking appropriate steps to achieve full realisation of the housing rights in question? Explain. Activity 4: Develop a plan for Progressive realisation of state housing rights obligations. Use the framework provided in Worksheet 13 to outline a plan for monitoring state obligations. Activity 5 : Fact-finding activities Apply the approach to fact-finding suggested in Worksheet 15 to the incident in your case study

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APPENDICES Universal Declaration of Human Rights "Regular English" Version by Little House Alternative Schools, Massachusetts

Article 1: All human beings are born free and equal. You are worth the same, and have the same rights as anyone else. You are born with the ability to think and to know right from wrong, and should act toward others in a spirit of friendliness. Article 2: Everyone should have all the rights and freedoms in this statement, no matter what race, sex, or color he or she may be. It shouldn't matter where you were born, what language you speak, what religion you are, what political opinions you have, or whether you're rich or poor. Everyone should have all of the rights in this statement. Article 3: Everyone has the right to live, to be free, and to feel safe. Article 4: No one should be held in slavery for any reason. The buying and selling of human beings should be prevented at all times. Article 5: No one shall be put through torture, or any other treatment or punishment that is cruel, or makes him or her feel less than human. Article 6: Everyone has the right to be accepted everywhere as a person, according to law. Article 7: You have the right to be treated equally by the law, and to have the same protection under the law as anyone else. Everyone should have protection from being treated in ways that go against this document, and from having anyone cause others to go against the rights in this document. Article 8: If your rights under the law are violated, you should have the right to fair and skilful judges who will see that justice is done. Article 9: No one shall be arrested, held in jail, or thrown and kept out of her or his own country for no good reason. Article 10: You have the same right as anyone else to a fair and public hearing by courts that will be open-minded and free to make their own decisions if you are ever accused of breaking the law, or if you have to go to court for some other reason. Article 11: 1) If you are blamed for a crime, you have the right to be thought of as innocent until you are proven guilty, according to the law, in a fair and public trial where you have the basic things you need to defend yourself. 2) No one shall be punished for anything that was not illegal when it Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 174

happened. Nor can anyone be given a greater punishment than the one that applied when the crime was committed. Article 12: No one has the right to butt-in to your privacy, home, or mail, or attack your honesty and self-respect for no good reason. Everyone has the right to have the law protect him or her against all such meddling or attacks. Article 13: 1) Within any country you have the right to go and live where you want. 2) You have the right to leave any country, including your own, and return to it when you want. Article 14: 1) Everyone has the right to seek shelter from harassment in another country. 2) This right does not apply in cases where the person has done something against the law that has nothing to do with politics, or when she or he has done something that is against what the United Nations is all about. Article 15: 1) You have a right to a country where you're from. 2) No one should be able to take you away from, or stop you from changing your country for no good reason. Article 16: 1) Grown men and women have the right to marry and start a family, without anyone trying to stop them or make it hard because of their race, country, or religion. Both partners have equal rights in getting married, during the marriage, and if and when they decide to end it. 2) A marriage shall take place only with the agreement of the couple. 3) The family is the basic part of society, and should be protected by it. Article 17: 1) Everyone has the right to have belongings that they can keep alone, or share with other people. 2) No one has the right to take your things away from you for no good reason. Article 18: You have the right to believe the things you want to believe, to have ideas about right and wrong, and to believe in any religion you want. This includes the right to change your religion if you want, and to practice it without anybody interfering. Article 19: You have the right to tell people how you feel about things without being told that you have to keep quiet. You have the right to read the newspaper or listen to the radio without someone trying to stop you, no matter where you live. Finally, you have the right to print your opinions in a newspaper or magazine, and send them anywhere without having someone try to stop you. Article 20: 1) You have the right to gather peacefully with people, and to be with anyone you want. 2) No one can force you to join or belong to any group.

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Article 21: 1) You have the right to be part of your government by being in it, or choosing the people who are in fair elections. 2) Everyone has the right to serve her or his country in some way. 3) The first job of any government is to do what its people want it to do. This means you have the right to have elections every so often, where each person's vote counts the same, and where everyone's vote is his or her own business. Article 22: Everyone, as a person on this planet, has the right to have her or his basic needs met, and should have whatever it takes to live with pride, and become the person he or she wants to be. Every country or group of countries should do everything they possibly can to make this happen. Article 23: 1) You have the right to work and to choose your job, to have fair and safe working conditions, and to be protected against not having work. 2) You have the right to the same pay as anyone else who does the same work, without anyone playing favorites. 3) You have the right to decent pay so that you and your family can get by with pride. That means that if you don't get paid enough to do that, you should get other kinds of help. 4) You have the right to form or be part of a union that will serve and protect your interests. Article 24: Everyone has the right to rest and relaxation, which includes limiting the number of hours he or she has to work, and allowing for holidays with pay once in a while. Article 25: You have the right to have what you need to live a decent life, including food, clothes, a home, and medical care for you and your family. You have the right to get help from society if you're sick or unable to work, if you're older or a widow, or if you're in any other kind of situation that keeps you from working through no fault of your own. Article 26: 1) Everyone has the right to an education. It should be free of charge, and should be required for all, at least in the early years. Later education for jobs and college has to be there for anyone who wants it and is able to do it. 2) The idea of education is to help people become the best they can be. It should teach them to respect and understand each other, and to be kind to everyone, no matter who they are or where they are from. Education should help to promote the activities of the United Nations in an effort to create a peaceful world. Article 27: 1) You have the right to join in and be part of the world of art, music, and books. You have the right to enjoy the arts, and to share in the advantages that come from new discoveries in the sciences. 2) You have the right to get the credit and any profit that comes from something that you have written, made, or discovered. Article 28: Everyone has the right to the kind of world where their rights and freedoms, such as the ones in this statement, are respected and made to happen. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 176

Article 29: 1) You have a responsibility to the place you live and the people around you -- we all do. Only by watching out for each other can we each become our individual best. 2) In order to be free, there have to be laws and limits that respect everyone's rights, meet our sense of right and wrong, and keep the peace in a world where we all play an active part. 3) Nobody should use her or his freedom to go against what the United Nations is all about. Article 30: There is nothing in this statement that says that anybody has the right to do anything that would weaken or take away these rights.

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International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976, in accordance with article 27 Preamble The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles: PART I Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

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3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of selfdetermination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. PART II Article 2 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Article 4 The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far 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. Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant. 2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law,

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conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent. PART III Article 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays Article 8

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1. The States Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (d) The right to strike provided that it is exercised in conformity with the laws of the particular country. 2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. Article 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. Article 10 The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

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2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both foodimporting and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need. Article 12 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

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2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. Article 13 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

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(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. Article 14 Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all. Article 15 1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

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4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields. PART IV Article 16 1. The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein. 2. (a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant;

(b) The Secretary-General of the United Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialized agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments. Article 17 1. The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned. 2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant. 3. Where relevant information has previously been furnished to the United Nations or to any specialized agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice. Article 18 Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant

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falling within the scope of their activities. These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs. Article 19 The Economic and Social Council may transmit to the Commission on Human Rights for study and general recommendation or, as appropriate, for information the reports concerning human rights submitted by States in accordance with articles 16 and 17, and those concerning human rights submitted by the specialized agencies in accordance with article 18. Article 20 The States Parties to the present Covenant and the specialized agencies concerned may submit comments to the Economic and Social Council on any general recommendation under article 19 or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein. Article 21 The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant. Article 22 The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant. Article 23 The States Parties to the present Covenant agree that international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned.

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Article 24 Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant. Article 25 Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources. PART V Article 26 1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant. 2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession. Article 27 1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession. 2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

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Article 28 The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions. Article 29 1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval. 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes. 3. When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted. Article 30 Irrespective of the notifications made under article 26, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph I of the same article of the following particulars: (a) Signatures, ratifications and accessions under article 26; (b) The date of the entry into force of the present Covenant under article 27 and the date of the entry into force of any amendments under article 29. Article 31 1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 26.

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General Comment 4: The right to adequate housing CESCR General comment 4. The right to adequate housing (Art.11 (1)) : . 13/12/91. 1. Pursuant to article 11 (1) of the Covenant, States parties "recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions". The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights. 2. The Committee has been able to accumulate a large amount of information pertaining to this right. Since 1979, the Committee and its predecessors have examined 75 reports dealing with the right to adequate housing. The Committee has also devoted a day of general discussion to the issue at each of its third (see E/1989/22, para. 312) and fourth sessions (E/1990/23, paras. 281-285). In addition, the Committee has taken careful note of information generated by the International Year of Shelter for the Homeless (1987) including the Global Strategy for Shelter to the Year 2000 adopted by the General Assembly in its resolution 42/191 of 11 December 1987 1/ . The Committee has also reviewed relevant reports and other documentation of the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.2/ 3. Although a wide variety of international instruments address the different dimensions of the right to adequate housing 3/ article 11 (1) of the Covenant is the most comprehensive and perhaps the most important of the relevant provisions. 4. Despite the fact that the international community has frequently reaffirmed the importance of full respect for the right to adequate housing, there remains a disturbingly large gap between the standards set in article 11 (1) of the Covenant and the situation prevailing in many parts of the world. While the problems are often particularly acute in some developing countries which confront major resource and other constraints, the Committee observes that significant problems of homelessness and inadequate housing also exist in some of the most economically developed societies. The United Nations estimates that there are over 100 million persons homeless worldwide and over 1 billion inadequately housed 4/ . There is no indication that this number is decreasing. It seems clear that no State party is free of significant problems of one kind or another in relation to the right to housing. 5. In some instances, the reports of States parties examined by the Committee have acknowledged and described difficulties in ensuring the right to adequate housing. For the most part, however, the information provided has been insufficient to enable the Committee to obtain an adequate picture of the situation prevailing in the State concerned. This General Comment thus aims to identify some of the principal issues which the Committee considers to be important in relation to this right. 6. The right to adequate housing applies to everyone. While the reference to "himself and his family" reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to female-headed households or other such groups. Thus, the concept of "family" must be understood in a wide sense. Further, individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group

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or other affiliation or status and other such factors. In particular, enjoyment of this right must, in accordance with article 2 (2) of the Covenant, not be subject to any form of discrimination. 7. In the Committee's view, 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. This is appropriate for at least two reasons. In the first place, the right to housing is integrally linked to other human rights and to the fundamental principles upon which the Covenant is premised. This "the inherent dignity of the human person" from which the rights in the Covenant are said to derive requires that the term "housing" be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all persons irrespective of income or access to economic resources. Secondly, the reference in article 11 (1) must be read as referring not just to housing but to adequate housing. As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: "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". 8. Thus the concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute "adequate housing" for the purposes of the Covenant. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. They include the following: (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. 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. 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. 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

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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. 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. The Committee encourages States parties to comprehensively apply the Health Principles of Housing 5/ 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. 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. 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. 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. Activities geared towards 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. 9. As noted above, the right to adequate housing cannot be viewed in isolation from other human rights contained in the two International Covenants and other applicable international instruments. Reference has already been made in this regard to the concept of human dignity and the principle of non-discrimination. In addition, the full enjoyment of other rights - such as the right to freedom of expression, the right to freedom of association (such as for tenants and other community-based groups), the right to freedom of residence and the right to participate in public decision-making - is indispensable if the right to adequate housing is to be realized and maintained by all

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groups in society. Similarly, the right not to be subjected to arbitrary or unlawful interference with one's privacy, family, home or correspondence constitutes a very important dimension in defining the right to adequate housing. 10. Regardless of the state of development of any country, there are certain steps which must be taken immediately. As recognized in the Global Strategy for Shelter and in other international analyses, many of the measures required to promote the right to housing would only require the abstention by the Government from certain practices and a commitment to facilitating "self-help" by affected groups. To the extent that any such steps are considered to be beyond the maximum resources available to a State party, it is appropriate that a request be made as soon as possible for international cooperation in accordance with articles 11 (1), 22 and 23 of the Covenant, and that the Committee be informed thereof. 11. States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others. The Committee is aware that external factors can affect the right to a continuous improvement of living conditions, and that in many States parties overall living conditions declined during the 1980s. However, as noted by the Committee in its General Comment 2 (1990) (E/1990/23, annex III), despite externally caused problems, the obligations under the Covenant continue to apply and are perhaps even more pertinent during times of economic contraction. It would thus appear to the Committee that a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant. 12. While the most appropriate means of achieving the full realization of the right to adequate housing will inevitably vary significantly from one State party to another, the Covenant clearly requires that each State party take whatever steps are necessary for that purpose. This will almost invariably require the adoption of a national housing strategy which, as stated in paragraph 32 of the Global Strategy for Shelter, "defines the objectives for the development of shelter conditions, identifies the resources available to meet these goals and the most cost-effective way of using them and sets out the responsibilities and time-frame for the implementation of the necessary measures". Both for reasons of relevance and effectiveness, as well as in order to ensure respect for other human rights, such a strategy should reflect extensive genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives. Furthermore, steps should be taken to ensure coordination between ministries and regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy, etc.) with the obligations under article 11 of the Covenant. 13. Effective monitoring of the situation with respect to housing is another obligation of immediate effect. For a State party to satisfy its obligations under article 11 (1) it must demonstrate, inter alia, that it has taken whatever steps are necessary, either alone or on the basis of international cooperation, to ascertain the full extent of homelessness and inadequate housing within its jurisdiction. In this regard, the revised general guidelines regarding the form and contents of reports adopted by the Committee (E/C.12/1991/1) emphasize the need to "provide detailed information about those groups within ... society that are vulnerable and disadvantaged with regard to housing". They include, in particular, homeless persons and families, those

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inadequately housed and without ready access to basic amenities, those living in "illegal" settlements, those subject to forced evictions and low-income groups. 14. Measures designed to satisfy a State party's obligations in respect of the right to adequate housing may reflect whatever mix of public and private sector measures considered appropriate. While in some States public financing of housing might most usefully be spent on direct construction of new housing, in most cases, experience has shown the inability of Governments to fully satisfy housing deficits with publicly built housing. The promotion by States parties of "enabling strategies", combined with a full commitment to obligations under the right to adequate housing, should thus be encouraged. In essence, the obligation is to demonstrate that, in aggregate, the measures being taken are sufficient to realize the right for every individual in the shortest possible time in accordance with the maximum of available resources. 15. Many of the measures that will be required will involve resource allocations and policy initiatives of a general kind. Nevertheless, the role of formal legislative and administrative measures should not be underestimated in this context. The Global Strategy for Shelter (paras. 66-67) has drawn attention to the types of measures that might be taken in this regard and to their importance. 16. In some States, the right to adequate housing is constitutionally entrenched. In such cases the Committee is particularly interested in learning of the legal and practical significance of such an approach. Details of specific cases and of other ways in which entrenchment has proved helpful should thus be provided. 17. The Committee views many component elements of the right to adequate housing as being at least consistent with the provision of domestic legal remedies. Depending on the legal system, such areas might include, but are not limited to: (a) legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions; (b) legal procedures seeking compensation following an illegal eviction; (c) complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; (d) allegations of any form of discrimination in the allocation and availability of access to housing; and (e) complaints against landlords concerning unhealthy or inadequate housing conditions. In some legal systems it would also be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness. 18. In this regard, the Committee considers that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law. 19. Finally, article 11 (1) concludes with the obligation of States parties to recognize "the essential importance of international cooperation based on free consent". Traditionally, less than 5 per cent of all international assistance has been directed towards housing or human settlements, and often the manner by which such funding is provided does little to address the housing needs of disadvantaged groups. States parties, both recipients and providers, should ensure that a substantial proportion of financing is devoted to creating conditions leading to a higher number of persons being adequately housed. International financial institutions promoting measures of structural adjustment should ensure that such measures do not compromise the

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enjoyment of the right to adequate housing. States parties should, when contemplating international financial cooperation, seek to indicate areas relevant to the right to adequate housing where external financing would have the most effect. Such requests should take full account of the needs and views of the affected groups. Notes

* Contained in document E/1992/23. 1/ Official Records of the General Assembly, Forty-third Session, Supplement No. 8, addendum (A/43/8/Add.1). 2/ Commission on Human Rights resolutions 1986/36 and 1987/22; reports by Mr. Danilo TĂźrk, Special Rapporteur of the Sub-Commission (E/CN.4/Sub.2/1990/19, paras. 108-120; E/CN.4/Sub.2/1991/17, paras. 137-139); see also Sub-Commission resolution 1991/26. 3/ See, for example, article 25 (1) of the Universal Declaration on Human Rights, article 5 (e) (iii) of the International Convention on the Elimination of All Forms of Racial Discrimination, article 14 (2) of the Convention on the Elimination of All Forms of Discrimination against Women, article 27 (3) of the Convention on the Rights of the Child, article 10 of the Declaration on Social Progress and Development, section III (8) of the Vancouver Declaration on Human Settlements, 1976 (Report of Habitat: United Nations Conference on Human Settlements (United Nations publication, Sales No. E.76.IV.7 and corrigendum), chap. I), article 8 (1) of the Declaration on the Right to Development and the ILO Recommendation Concerning Workers' Housing, 1961 (No. 115). 4/ See footnote 1/. 5/ Geneva, World Health Organization, 1990.

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General Comment 7 : Forced Evictions CESCR: The right to adequate housing (Art.11.1): forced evictions : 20/05/97.

1. In its General Comment No. 4 (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirements of the Covenant. Having considered a significant number of reports of forced evictions in recent years, including instances in which it has determined that the obligations of States parties were being violated, the Committee is now in a position to seek to provide further clarification as to the implications of such practices in terms of the obligations contained in the Covenant. 2. The international community has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to "undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made". 1/ In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in its resolution 43/181, the "fundamental obligation [of Governments] to protect and improve houses and neighbourhoods, rather than damage or destroy them" was recognized. 2/ Agenda 21 stated that "people should be protected by law against unfair eviction from their homes or land". 3/ In the Habitat Agenda Governments committed themselves to "protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided". 4/ The Commission on Human Rights has also indicated that "forced evictions are a gross violation of human rights". 5/ However, although these statements are important, they leave open one of the most critical issues, namely that of determining the circumstances under which forced evictions are permissible and of spelling out the types of protection required to ensure respect for the relevant provisions of the Covenant. 3. The use of the term "forced evictions" is, in some respects, problematic. This expression seeks to convey a sense of arbitrariness and of illegality. To many observers, however, the reference to "forced evictions" is a tautology, while others have criticized the expression "illegal evictions" on the ground that it assumes that the relevant law provides adequate protection of the right to housing and conforms with the Covenant, which is by no means always the case. Similarly, it has been suggested that the term "unfair evictions" is even more subjective by virtue of its failure to refer to any legal framework at all. The international community, especially in the context of the Commission on Human Rights, has opted to refer to "forced evictions", primarily since all Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 195

suggested alternatives also suffer from many such defects. The term "forced evictions" as used throughout this general comment is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights. 4. The practice of forced evictions is widespread and affects persons in both developed and developing countries. Owing to the interrelationship and interdependency which exist among all human rights, forced evictions frequently violate other human rights. Thus, while manifestly breaching the rights enshrined in the Covenant, the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions. 5. Although the practice of forced evictions might appear to occur primarily in heavily populated urban areas, it also takes place in connection with forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements. In all of these contexts, the right to adequate housing and not to be subjected to forced eviction may be violated through a wide range of acts or omissions attributable to States parties. Even in situations where it may be necessary to impose limitations on such a right, full compliance with article 4 of the Covenant is required so that any limitations imposed must be "determined by law only insofar as this may be compatible with the nature of these [i.e. economic, social and cultural] rights and solely for the purpose of promoting the general welfare in a democratic society". 6. Many instances of forced eviction are associated with violence, such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence. 7. Other instances of forced eviction occur in the name of development. Evictions may be carried out in connection with conflict over land rights, development and infrastructure projects, such as the construction of dams or other large-scale energy projects, with land acquisition measures associated with urban renewal, housing renovation, city beautification programmes, the clearing of land for agricultural purposes, unbridled speculation in land, or the holding of major sporting events like the Olympic Games. 8. In essence, the obligations of States parties to the Covenant in relation to forced evictions are based on article 11.1, read in conjunction with other relevant provisions. In particular, article 2.1 obliges States to use "all appropriate means" to promote the right to adequate housing. However, in view of the nature of the practice of forced evictions, the reference in article Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 196

2.1 to progressive achievement based on the availability of resources will rarely be relevant. The State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions (as defined in paragraph 3 above). Moreover, this approach is reinforced by article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognizes, inter alia, the right to be protected against "arbitrary or unlawful interference" with one's home. It is to be noted that the State's obligation to ensure respect for that right is not qualified by considerations relating to its available resources. 9. Article 2.1 of the Covenant requires States parties to use "all appropriate means", including the adoption of legislative measures, to promote all the rights protected under the Covenant. Although the Committee has indicated in its General Comment No. 3 (1990) that such measures may not be indispensable in relation to all rights, it is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection. Such legislation should include measures which (a) provide the greatest possible security of tenure to occupiers of houses and land, (b) conform to the Covenant and (c) are designed to control strictly the circumstances under which evictions may be carried out. The legislation must also apply to all agents acting under the authority of the State or who are accountable to it. Moreover, in view of the increasing trend in some States towards the Government greatly reducing its responsibilities in the housing sector, States parties must ensure that legislative and other measures are adequate to prevent and, if appropriate, punish forced evictions carried out, without appropriate safeguards, by private persons or bodies. States parties should therefore review relevant legislation and policies to ensure that they are compatible with the obligations arising from the right to adequate housing and repeal or amend any legislation or policies that are inconsistent with the requirements of the Covenant. 10. Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction. Women in all groups are especially vulnerable given the extent of statutory and other forms of discrimination which often apply in relation to property rights (including home ownership) or rights of access to property or accommodation, and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. The non-discrimination provisions of articles 2.2 and 3 of the Covenant impose an additional obligation upon Governments to ensure that, where evictions do occur, appropriate measures are taken to ensure that no form of discrimination is involved. 11. Whereas some evictions may be justifiable, such as in the case of persistent non-payment of rent or of damage to rented property without any reasonable cause, it is incumbent upon the relevant authorities to ensure that they are carried out in a manner warranted by a law which is compatible with Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 197

the Covenant and that all the legal recourses and remedies are available to those affected. 12. Forced eviction and house demolition as a punitive measure are also inconsistent with the norms of the Covenant. Likewise, the Committee takes note of the obligations enshrined in the Geneva Conventions of 1949 and Protocols thereto of 1977 concerning prohibitions on the displacement of the civilian population and the destruction of private property as these relate to the practice of forced eviction. 13. States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders. States parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. In this respect, it is pertinent to recall article 2.3 of the International Covenant on Civil and Political Rights, which requires States parties to ensure "an effective remedy" for persons whose rights have been violated and the obligation upon the "competent authorities (to) enforce such remedies when granted". 14. In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality. In this regard it is especially pertinent to recall General Comment 16 of the Human Rights Committee, relating to article 17 of the International Covenant on Civil and Political Rights, which states that interference with a person's home can only take place "in cases envisaged by the law". The Committee observed that the law "should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances". The Committee also indicated that "relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted". 15. Appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognized in both the International Covenants on Human Rights. The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 198

take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts. 16. Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available. 17. The Committee is aware that various development projects financed by international agencies within the territories of State parties have resulted in forced evictions. In this regard, the Committee recalls its General Comment No. 2 (1990) which states, inter alia, that "international agencies should scrupulously avoid involvement in projects which, for example ... promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation. Every effort should be made, at each phase of a development project, to ensure that the rights contained in the Covenant are duly taken into account".6/ 18. Some institutions, such as the World Bank and the Organisation for Economic Cooperation and Development (OECD) have adopted guidelines on relocation and/or resettlement with a view to limiting the scale of and human suffering associated with forced evictions. Such practices often accompany large-scale development projects, such as dam-building and other major energy projects. Full respect for such guidelines, insofar as they reflect the obligations contained in the Covenant, is essential on the part of both the agencies themselves and States parties to the Covenant. The Committee recalls in this respect the statement in the Vienna Declaration and Programme of Action to the effect that "while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights" (Part I, para. 10). 19. In accordance with the guidelines for reporting adopted by the Committee, State parties are requested to provide various types of information pertaining directly to the practice of forced evictions. This includes information relating to (a) the "number of persons evicted within the last five years and the number of persons currently lacking legal protection against arbitrary eviction or any other kind of eviction", (b) "legislation concerning the rights of tenants to security of tenure, to protection from eviction" and (c) "legislation prohibiting any form of eviction". 7/ 20. Information is also sought as to "measures taken during, inter alia, urban renewal programmes, redevelopment projects, site upgrading, preparation for Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 199

international events (Olympics and other sporting competitions, exhibitions, conferences, etc.) 'beautiful city' campaigns, etc. which guarantee protection from eviction or guarantee rehousing based on mutual consent, by any persons living on or near to affected sites". 8/ However, few States parties have included the requisite information in their reports to the Committee. The Committee therefore wishes to emphasize the importance it attaches to the receipt of such information. 21. Some States parties have indicated that information of this nature is not available. The Committee recalls that effective monitoring of the right to adequate housing, either by the Government concerned or by the Committee, is not possible in the absence of the collection of appropriate data and would request all States parties to ensure that the necessary data is collected and is reflected in the reports submitted by them under the Covenant. Notes * Contained in document E/1998/22, annex IV. 1/ Report of Habitat: United Nations Conference on Human Settlements, Vancouver, 31 May - 11 June 1976 (A/CONF.70/15), chap. II, recommendation B.8, para. C (ii). 2/ Report of the Commission on Human Settlements on the work of its eleventh session, Addendum (A/43/8/Add.1), para. 13. 3/ Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. I (A/CONF.151/26/Rev.1(vol.I), annex II, Agenda 21, chap. 7.9 (b). 4/ Report of the United Nations Conference on Settlements (Habitat II) (A/CONF.165/14), annex II, The Habitat Agenda, para. 40 (n). 5/ Commission on Human Rights resolution 1993/77, para. 1. 6/ E/1990/23, annex III, paras. 6 and 8 (d). 7/ E/C.12/1999/8, annex IV. 8/ Ibid.

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Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights

Introduction (i) A group of distinguished experts in international law, convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, United States of America), met in Maastricht on 2-6 June 1986 to consider the nature and scope of the obligations of States parties to the International Covenant on Economic, Social and Cultural Rights, the consideration of States parties Reports by the newly constituted ECOSOC Committee on Economic, Social and Cultural Rights, and international co-operation under Part IV of the Covenant. (ii) The 29 Participants came from Australia, the Federal Republic of Germany, Hungary, Ireland, Mexico, Netherlands, Norway, Senegal, Spain, United Kingdom, United States of America, Yugoslavia, the United Nations Centre for Human Rights, the International Labour Organisation (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), the Commonwealth Secretariat, and the sponsoring organizations. Four of the participants were members of the ECOSOC Committee on Economic, Social and Cultural Rights. (iii) The Participants agreed unanimously upon the following principles which they believe reflect the present state of international law, with the exception of certain recommendations indicated by the use of the verb "should" instead of "shall". Part I: The Nature and Scope of States Parties' Obligations A. General Observations 1. Economic, social and cultural rights are an integral part of international human rights law. They are the subject of specific treaty obligations in various international instruments, notably the International Covenant on Economic, Social and Cultural Rights. 2. The International Covenant on Economic, Social and Cultural Rights, together with the International Covenant on Civil and Political Rights and the Optional Protocol, entered into force in 1976. The Covenants serve to elaborate the Universal Declaration of Human Rights: these instruments constitute the International Bill of Human Rights. 3. As human rights and fundamental freedoms are indivisible and interdependent, equal attention and urgent consideration should be given to Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 201

the implementation, promotion and protection of both civil and political, and economic, social and cultural rights. 4. The International Covenant on Economic, Social and Cultural Rights (hereafter the Covenant) should, in accordance with the Vienna Convention on the Law of Treaties (Vienna, 1969), be interpreted in good faith, taking into account the object and purpose, the ordinary meaning, the Preparatory work and the relevant practice. 5. The experience of the relevant specialized agencies as well as of United Nations bodies and intergovernmental organizations, including the United Nations working groups and special rapporteurs in the field of human rights, should be taken into account in the implementation of the Covenant and in monitoring States parties' achievements. 6. The achievement of economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-market economies, in both centralized and decentralized political structures. 7. States parties must at all times act in good faith to fulfil the obligations they have accepted under the Covenant. 8. Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time. 9. Non-governmental organizations can play an important role in promoting the implementation of the Covenant. This role should accordingly be facilitated at the national as well as the international level. 10. States parties are accountable both to the international community and to their own people for their compliance with the obligations under the Covenant. 11. A concerted national effort to invoke the full participation of all sectors of society is, therefore, indispensable to achieving progress in realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies. 12. The supervision of compliance with the Covenant should be approached in a spirit of co-operation and dialogue. To this end, in considering the reports of States parties, the Committee on Economic, Social and Cultural Rights, hereinafter called "the Committee", should analyse the causes and factors impeding the realization of the rights covered under the Covenant and, where possible, indicate solutions. This approach should not preclude a finding, where the information available warrants such a conclusion, that a State party has failed to comply with its obligations under the Covenant.

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13. All organs monitoring the Covenant should pay special attention to the principles of non-discrimination and equality before the law when assessing States parties' compliance with the Covenant. 14. Given the significance for development of the progressive realization of the rights set forth in the Covenant, particular attention should be given to measures to improve the standard of living of the poor and other disadvantaged groups, taking into account that special measures may be required to protect cultural rights of indigenous peoples and minorities. 15. Trends in international economic relations should be taken into account in assessing the efforts of the international community to achieve the Covenant's objectives. B. Interpretative Principles specifically relating to Part II of the Covenant Article 2 (1): "to take steps ... by all appropriate means, including particularly the adoption of legislation" 16. All States parties have an obligation to begin immediately to take steps towards full realization of the rights contained in the Covenant. 17. At the national level States Parties shall use all appropriate means, including legislative, administrative, judicial, economic, social and educational measures, consistent with the nature of the rights in order to fulfil their obligations under the Covenant. 18. Legislative measures alone are not sufficient to fulfil the obligations of the Covenant. It should be noted, however, that article 2 (1) would often require legislative action to be taken in cases where existing legislation is in violation of the obligations assumed under the Covenant. 19. States parties shall provide for effective remedies including, where appropriate, judicial remedies. 20. The appropriateness of the means to be applied in a particular State shall be determined by that State party, and shall be subject to review by the United Nations Economic and Social Council, with the assistance of the Committee. Such review shall be without prejudice to the competence of the other organs established pursuant to the Charter of the United Nations. "to achieve progressively the full realization of the rights" 21. The obligation "to achieve progressively the full realization of the rights" requires States parties to move as expeditiously as possible towards the realization of the rights. Under no circumstances shall this be interpreted as implying for States the right to defer indefinitely efforts to ensure full

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realization. On the contrary all States parties have the obligation to begin immediately to take steps to fulfil their obligations under the Covenant. 22. Some obligations under the Covenant require immediate implementation in full by all States parties, such as the prohibition of discrimination in article 2 (2) of the Covenant. 23. The obligation of progressive achievement exists independently of the increase in resources; it requires effective use of resources available. 24. Progressive implementation can be effected not only by increasing resources, but also by the development of societal resources necessary for the realization by everyone of the rights recognized in the Covenant. "to the maximum of its available resources" 25. States parties are obligated regardless of the level of economic development, to ensure respect for minimum subsistence rights for all. 26. "Its available resources" refers to both the resources within a State and those available from the international community through international cooperation and assistance. 27. In determining whether adequate measures have been taken for the realization of the rights recognized in the Covenant attention shall be paid to equitable and effective use of and access to the available resources. 28. In the use of the available resources due priority shall be given to the realization of rights recognized in the Covenant, mindful of the need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services. "individually and through international assistance and co-operation, especially economic and technical" 29. International co-operation and assistance pursuant to the Charter of the United Nations (arts. 55 and 56) and the Covenant shall have in view as a matter of priority the realization of all human rights and fundamental freedoms, economic social and cultural as well as civil and political. 30. International co-operation and assistance must be directed towards the establishment of a social and international order in which the rights and freedoms set forth in the Covenant can be fully realized (cf. art. 28 Universal Declaration of Human Rights). 31. Irrespective of differences in their political, economic and social systems, States shall co-operate with one another to promote international social,

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economic and cultural progress, in particular the economic growth of developing countries, free from discrimination based on such differences. 32. States parties shall take stet)s by international means to assist and cooperate in the realization of the rights recognized by the Covenant. 33. International co-operation and assistance shall be based on the sovereign equality of States and be aimed at the realization of the rights contained in the Covenant. 34. In undertaking international co-operation and assistance Pursuant to article 2 (1) the role of international organizations and the contribution of nongovernmental organizations shall be kept in mind. Article 2 (2): Non-discrimination 35. Article 2 (2) calls for immediate application and involves and explicit guarantee on behalf of the States Parties. It should, therefore, be made subject to judicial review and other recourse Procedures. 36. The grounds of discrimination mentioned in article 2 (2) are not exhaustive. 37. Upon becoming a party to the Covenant States shall eliminate de jure discrimination by abolishing without delay any discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights. 38. De facto discrimination occurring as a result of the unequal enjoyment of economic, social and cultural rights, on account of a lack of resources or otherwise, should be brought to an end as speedily as possible. 39. Special measures taken for the sole purpose of securing adequate advancement of certain groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment of economic, social and cultural rights shall not be deemed discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different groups and that such measures shall not be continued after their intended objectives have been achieved. 40. Article 2 (2) demands from States parties that they prohibit private persons and bodies from practising discrimination in any field of public life. 41. In the application of article 2 (2) due regard should be paid to all relevant international instruments including the Declaration and Convention on the Elimination of all Forms of Racial Discrimination as well as to the activities of the supervisory committee (CERD) under the said Convention. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 205

Article 2 (3): Non-nationals in developing countries 42. As a general rule the Covenant applies equally to nationals and nonnationals. 43. The purpose of article 2 (3) was to end the domination of certain economic groups of non-nationals during colonial times. In the light of this the exception in article 2 (3) should be interpreted narrowly. 44. This narrow interpretation of article 2 (3) refers in particular to the notion of economic rights and to the notion of developing countries. The latter notion refers to those countries which have gained independence and which fall within the appropriate United Nations classifications of developing countries. Article 3: Equal rights for men and women 45. In the application of article 3 due regard should be paid to the Declaration and Convention on the Elimination of All Forms of Discrimination against Women and other relevant instruments and the activities of the supervisory committee (CEDAW) under the said Convention. Article 4: Limitations 46. Article 4 was primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the State. 47. The article was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or integrity of the person. "determined by law"* 48. No limitation on the exercise of economic, social and cultural rights shall be made unless provided for by national law of general application which is consistent with the Covenant and is in force at the time the limitation is applied. 49. Laws imposing limitations on the exercise of economic, social and cultural rights shall not be arbitrary or unreasonable or discriminatory. 50. Legal rules limiting the exercise of economic, social and cultural rights shall be clear and accessible to everyone. 51. Adequate safeguards and effective remedies shall be provided by law against illegal or abusive imposition on application of limitations on economic, social and cultural rights. "promoting the general welfare" Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 206

52. This term shall be construed to mean furthering the well-being of the people as a whole. "in a democratic society"** 53. The expression "in a democratic society" shall be interpreted as imposing a further restriction on the application of limitations. 54. The burden is upon a State imposing limitations to demonstrate that the limitations do not impair the democratic functioning of the society. 55. While there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the United Nations Charter and the Universal Declaration of Human Rights may be viewed as meeting this definition. "compatible with the nature of these rights" 56. The restriction "compatible with the nature of these rights" requires that a limitation shall not be interpreted or applied so as to jeopardize the essence of the right concerned. Article 5 57. Article 5 (1) underlines the fact that there is no general, implied or residual right for a State to impose limitations beyond those which are specifically provided for in the law. None of the provisions in the law may be interpreted in such a way as to destroy "any of the rights or freedoms recognized". In addition article 5 is intended to ensure that nothing in the Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources. 58. The purpose of article 5 (2) is to ensure that no provision in the Covenant shall be interpreted to prejudice the provisions of domestic law or any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected. Neither shall article 5 (2) be interpreted to restrict the exercise of any human right protected to a greater extent by national or international obligations accepted by the State party. C. Interpretative Principles specifically relating to Part III of the Covenant Article 8: "prescribed by law"*** 59. See the interpretative principles under the synonymous term "determined by law" in article 4. "necessary in a democratic society" Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 207

60. In addition to the interpretative principles listed under article 4 concerning the Phrase "in a democratic society", article 8 imposes a greater restraint upon a State party which is exercising limitations on trade union rights. It requires that such a limitation is indeed necessary. The term n necessary" implies that the limitation: (a) responds to a pressing public or social need; (b) pursues a legitimate aim; and (c) is proportional to that aim. 61. Any assessment as to the necessity of a limitation shall be based upon objective considerations. "national security" 62. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force. 63. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order. 64. National security cannot be used as a Pretext for imposing vague or arbitrary limitations and may be invoked only when there exist adequate safeguards and effective remedies against abuse. 65. The systematic violation of economic, social and cultural rights undermines true national security and may jeopardize international Peace and security. A State responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive Practices against its population. "public order (ordre public)" 66. The expression "public order (ordre public)" as used in the Covenant may be defined as the sum of rules which ensures the functioning of society or the set of fundamental principles on which a society is founded. Respect for economic, social and cultural rights is part of public order (ordre public). 67. Public order (ordre public) shall be interpreted in the context of the purpose of the particular economic, social and cultural rights which are limited on this ground. 68. State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 208

"rights and freedoms of others" 69. The scope of the rights and freedoms of others that may act as a limitation upon rights in the Covenant extends beyond the rights and freedoms recognized in the Covenant. D. Violations of Economic, Social and Cultural Rights 70. A failure by a State party to comply with an obligation contained in the Covenant is, under international law, a violation of the Covenant. 71. In determining what amounts to a failure to comply, it must be borne in mind that the Covenant affords to a State party a margin of discretion in selecting the means for carrying out its objects, and that factors beyond its reasonable control may adversely affect its capacity to implement particular rights. 72. A State party will be in violation of the Covenant, inter alia, if: - it fails to take a step which it is required to take by the Covenant; - it fails to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfilment of a right; - it fails to implement without delay a right which it is required by the Covenant to provide immediately; - it wilfully fails to meet a generally accepted international minimum standard of achievement, which is within its powers to meet; - it applies a limitation to a right recognized in the Covenant other than in accordance with the Covenant; - it deliberately retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure; - it fails to submit reports as required under the Covenant. 73. In accordance with international law each State party to the Covenant has the right to express the view that another State party is not complying with its obligations under the Covenant and to bring this to the attention of that State party. Any dispute that may thus arise shall be settled in accordance with the relevant rules of international law relating to the peaceful settlement of disputes. Part II. Consideration of States Parties' Reports and International Cooperation Under Part IV of the Covenant Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 209

A. Preparation and submission of reports by States parties 74. The effectiveness of the supervisory machinery provided in Part IV of the Covenant depends largely upon the duality and timeliness of reports by States parties. Governments are therefore urged to make their reports as meaningful as possible. For this purpose they should develop adequate internal procedures for consultations with the competent government departments and agencies, compilation of relevant data, training of staff, acquisition of background documentation, and consultation with relevant non-governmental and international institutions. 75. The Preparation of reports under article 16 of the Covenant could be facilitated by the implementation of elements of the programme of advisory services and technical assistance as proposed by the chairmen of the main human rights supervisory organs in their 1984 report to the General Assembly (United Nations Doc. A39/484). 76. States parties should view their reporting obligations as an opportunity for broad public discussion on goals and policies designed to realize economic, social and cultural rights. For this purpose wide publicity should be given to the reports, if possible in draft. The preparation of reports should also be an occasion to review the extent to which relevant national policies adequately reflect the scope and content of each right, and to specify the means by which it is to be realized. 77. States parties are encouraged to examine the possibility of involving nongovernmental organizations in the preparation of their reports. 78. In reporting on legal steps taken to give effect to the Covenant, States parties should not merely describe any relevant legislative provisions. They should specify, as appropriate, the judicial remedies, administrative procedures and other measures they have adopted for enforcing those rights and the practice under those remedies and procedures. 79. Quantitative information should be included in the reports of States parties in order to indicate the extent to which the rights are protected in fact. Statistical information and information on budgetary allocations and expenditures should be Presented in such a way as to facilitate the assessment of the compliance with Covenant obligations. States Parties should, where Possible, adopt clearly defined targets and indicators in implementing the Covenant. Such targets and indicators should, as appropriate, be based on criteria established through international cooperation in order to increase the relevance and comparability of data submitted by States parties in their reports. 80. Where necessary, governments should conduct or commission studies to enable them to fill gaps in information regarding progress made and difficulties encountered in achieving the observance of the Covenant rights. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 210

81. Reports by States Parties should indicate the areas where more progress could be achieved through international co-operation and suggest economic and technical co-operation programmes that might be helpful toward that end. 82. In order to ensure a meaningful dialogue between the States Parties and the organs assessing their compliance with the provisions of the Covenant, States parties should designate representatives who are fully familiar with the issues raised in the report. B. Role of the Committee on Economic, Social and Cultural Rights 83. The Committee has been entrusted with assisting the Economic and Social Council in the substantive tasks assigned to it by the Covenant. In particular, its role is to consider States parties reports and to make suggestions and recommendations of a general nature, including suggestions and recommendations as to fuller compliance with the Covenant by States parties. The decision of the Economic and Social Council to replace its sessional Working Group by a Committee of independent experts should lead to a more effective supervision of the implementation by States parties. 84. In order to enable it to discharge fully its responsibilities the Economic and Social Council should ensure that sufficient sessions are provided to the Committee. It is imperative that the necessary staff and facilities for the effective Performance of the Committee's functions be provided, in accordance with ECOSOC resolution 1985/17. 85. In order to address the complexity of the substantive issues covered by the Covenant, the Committee might consider delegating certain tasks to its members. For example, drafting grounds could be established to prepare preliminary formulations or recommendations of a general nature or summaries of the information received. Rapporteurs could be appointed to assist the work of the Committee in particular to prepare reports on specific topics and for that purpose consult States parties, specialized agencies and relevant experts and to draw up proposals regarding economic and technical assistance projects that could help overcome difficulties States parties have encountered in fulfilling their Covenant obligations. 86. The Committee should, pursuant to articles 22 and 23 of the Covenant, explore with other organs of the United Nations, specialized agencies and other concerned organizations, the possibilities of taking additional international measures likely to contribute to the progressive implementation of the Covenant. 87. The Committee should reconsider the current six-year cycle of reporting in view of the delays which have led to simultaneous consideration of reports submitted under different phases of the cycle. The Committee should also review the guidelines for States parties to assist them in preparing reports and propose any necessary modifications. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 211

88. The Committee should consider inviting States parties to comment on selected topics leading to a direct and sustained dialogue with the Committee. 89. The Committee should devote adequate attention to the methodological issues involved in assessing compliance with the obligations contained in the Covenant. Reference to indicators, in so far as they may help measure progress made in the achievement of certain rights, may be useful in evaluating reports submitted under the Covenant. The Committee should take due account of the indicators selected by or in the framework of the specialized agencies and draw upon or promote additional research, in consultation with the specialized agencies concerned, where gaps have been identified. 90. Whenever the Committee is not satisfied that the information provided by a state Party is adequate for a meaningful assessment of progress achieved and difficulties encountered it should request supplementary information, specifying as necessary the precise issues or questions it would like the State party to address. 91. In preparing its reports under ECOSOC resolution 1985/17, the Committee should consider, in addition to the "summary of its consideration of the reports", highlighting thematic issues raised during its deliberations. C. Relations between the Committee and Specialized Agencies, and other international organs 92. The establishment of the Committee should be seen as an opportunity to develop a positive and mutually beneficial relationship between the Committee and the specialized agencies and other international organs. 93. New arrangements under article 18 of the Covenant should be considered where they could enhance the contribution of the specialized agencies to the work of the Committee. Given that the working methods with regard to the implementation of economic, social and cultural rights vary from one specialized agency to another, flexibility is appropriate in making such arrangements under article 18. 94. It is essential for the proper supervision of the implementation of the Covenant under Part IV that a dialogue be developed between the specialized agencies and the Committee with respect to matters of common interest. In particular consultations should address the need for developing indicators for assessing compliance with the Covenant; drafting guidelines for the submission of reports by States parties; making arrangements for submission of reports by the specialized agencies under article 18. Consideration should also be given to any relevant procedures adopted in the agencies. Participation of their representatives in meetings of the Committee would be very valuable.

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95. It would be useful if Committee members could visit specialized agencies concerned, learn through personal contact about programmes of the agencies relevant to the realization of the rights contained in the Covenant and discuss the possible areas of collaboration with those agencies. 96. Consultations should be initiated between the Committee and international financial institutions and development agencies to exchange information and share ideas on the distribution of available resources in relation to the realization of the rights recognized in the Covenant. These exchanges should consider the impact of international economic assistance on efforts by States Parties to implement the Covenant and possibilities of technical and economic co-operation under article 22 of the Covenant. 97. The Commission on Human Rights, in addition to its responsibilities under article 19 of the Covenant, should take into account the work of the Committee in its consideration of items on its agenda relating to economic, social and cultural rights. 98. The Covenant on Economic, Social and Cultural Rights is related to the Covenant on Civil and Political Rights. Although most rights can clearly be delineated as falling within the framework of one or other Covenant, there are several rights and Provisions referred to in both instruments which are not susceptible to clear differentiation. Both Covenants moreover share common provisions and articles. It is important that consultative arrangements be established between the Economic, Social and Cultural Rights Committee and the Human Rights Committee. 99. Given the relevance of other international legal instruments to the Covenant, early consideration should be given by the Economic and Social Council to the need for developing effective consultative arrangements between the various supervisory bodies. 100. International and regional intergovernmental organizations concerned with the realization of economic, social and cultural rights are urged to develop measures, as appropriate, to promote the implementation of the Covenant. 101. As the Committee is a subsidiary organ of the Economic and Social Council, non-governmental organizations enjoying consultative status with the Economic and Social Council are urged to attend and follow the meetings of the Committee and, when appropriate, to submit information in accordance with ECOSOC resolution 1296 (XLIV). 102. The Committee should develop, in co-operation with intergovernmental organizations and non-governmental organizations as well as research institutes an agreed system for recording, storing and making accessible case law and other interpretative material relating to international instruments on economic, social and cultural rights. Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 213

103. As one of the measures recommended in article 23 it is recommended that seminars be held Periodically to review the work of the Committee and the progress made in the realization of economic, social and cultural rights by States parties. */ The Limburg Principles 48-51 are derived from the Siracusa Principles 1518, United Nations Doc. E/CN.4/1984/4, 28 September 1984 and 7 Human Rights Quarterly 3 (1985), at p. 5. **/ Compare Siracusa Principles 19-21, ibid., at p. 5. ***/ The Limburg Principles 59-69 are derived from the Siracusa Principles 10, 15-26, 29-32 and 35-37, ibid., at pp. 4-7.

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Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997. Introduction On the occasion of the 10th anniversary of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter 'the Limburg Principles'), a group of more than thirty experts met in Maastricht from 22-26 January 1997 at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands). The objective of this meeting was to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies. The participants unanimously agreed on the following guidelines which they understand to reflect the evolution of international law since 1986. These guidelines are designed to be of use to all who are concerned with understanding and determining violations of economic, social and cultural rights and in providing remedies thereto, in particular monitoring and adjudicating bodies at the national, regional and international levels. THE MAASTRICHT GUIDELINES ON VIOLATIONS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IThe significance of economic, social and cultural rights 1. Since the Limburg Principles were adopted in 1986, the economic and social conditions have declined at alarming rates for over 1.6 billion people, while they have advanced also at a dramatic pace for more than a quarter of the world's population. The gap between rich and poor has doubled in the last three decades, with the poorest fifth of the world's population receiving 1.4% of the global income and the richest fifth 85%. The impact of these disparities on the lives of people - especially the poor - is dramatic and renders the enjoyment of economic, social and cultural rights illusory for a significant portion of humanity. 2. Since the end of the Cold War, there has been a trend in all regions of the world to reduce the role of the state and to rely on the market to resolve problems of human welfare, often in response to conditions generated by international and national financial markets and institutions and in an effort to attract investments from the multinational enterprises whose wealth and power exceed that of many states. It is no longer taken for granted that the realization of economic, social and cultural rights depends significantly on action by the state, although, as a matter of international law, the state Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 215

remains ultimately responsible for guaranteeing the realization of these rights. While the challenge of addressing violations of economic, social and cultural rights is rendered more complicated by these trends, it is more urgent than ever to take these rights seriously and, therefore, to deal with the accountability of governments for failure to meet their obligations in this area. 3. There have also been significant legal developments enhancing economic, social and cultural rights since 1986, including the emerging jurisprudence of the Committee on Economic, Social and Cultural Rights and the adoption of instruments, such as the revised European Social Charter of 1996 and the Additional Protocol to the European Charter Providing for a System of Collective Complaints, and the San Salvador Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988. Governments have made firm commitments to address more effectively economic, social and cultural rights within the framework of seven UN World Summits conferences (1992-1996). Moreover, the potential exists for improved accountability for violations of economic, social and cultural rights through the proposed Optional Protocols to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. Significant developments within national civil society movements and regional and international NGOs in the field of economic, social and cultural rights have taken place. 4. It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights. 5. As in the case of civil and political rights, the failure by a State Party to comply with a treaty obligation concerning economic, social and cultural rights is, under international law, a violation of that treaty. Building upon the Limburg Principles , the considerations below relate primarily to the International Covenant on Economic, Social and Cultural Rights (hereinafter "the Covenant"). They are equally relevant, however, to the interpretation and application of other norms of international and domestic law in the field of economic, social and cultural rights. II The meaning of violations of economic, social and cultural rights Obligations to respect, protect and fulfil 6. Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfil. Failure to perform any one of these three obligations constitutes a violation of such rights. The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the State engages in arbitrary Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 216

forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation. Obligations of conduct and of result 7. The obligations to respect, protect and fulfil each contain elements of obligation of conduct and obligation of result. The obligation of conduct requires action reasonably calculated to realize the enjoyment of a particular right. In the case of the right to health, for example, the obligation of conduct could involve the adoption and implementation of a plan of action to reduce maternal mortality. The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard. With respect to the right to health, for example, the obligation of result requires the reduction of maternal mortality to levels agreed at the 1994 Cairo International Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women. Margin of discretion 8. As in the case of civil and political rights, States enjoy a margin of discretion in selecting the means for implementing their respective obligations. State practice and the application of legal norms to concrete cases and situations by international treaty monitoring bodies as well as by domestic courts have contributed to the development of universal minimum standards and the common understanding of the scope, nature and limitation of economic, social and cultural rights. The fact that the full realization of most economic, social and cultural rights can only be achieved progressively, which in fact also applies to most civil and political rights, does not alter the nature of the legal obligation of States which requires that certain steps be taken immediately and others as soon as possible. Therefore, the burden is on the State to demonstrate that it is making measurable progress toward the full realization of the rights in question. The State cannot use the "progressive realization" provisions in article 2 of the Covenant as a pretext for noncompliance. Nor can the State justify derogations or limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds. Minimum core obligations 9. Violations of the Covenant occur when a State fails to satisfy what the Committee on Economic, Social and Cultural Rights has referred to as "a minimum core obligation to ensure the satisfaction of, at the very least, Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 217

minimum essential levels of each of the rights [...]. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, violating the Covenant." Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties. Availability of resources 10. In many cases, compliance with such obligations may be undertaken by most States with relative ease, and without significant resource implications. In other cases, however, full realization of the rights may depend upon the availability of adequate financial and material resources. Nonetheless, as established by Limburg Principles 25-28, and confirmed by the developing jurisprudence of the Committee on Economic, Social and Cultural Rights, resource scarcity does not relieve States of certain minimum obligations in respect of the implementation of economic, social and cultural rights. State policies 11. A violation of economic, social and cultural rights occurs when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standard of conduct or result. Furthermore, any discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant. Gender discrimination 12. Discrimination against women in relation to the rights recognized in the Covenant, is understood in light of the standard of equality for women under the Convention on the Elimination of All Forms of Discrimination Against Women. That standard requires the elimination of all forms of discrimination against women including gender discrimination arising out of social, cultural and other structural disadvantages. Inability to comply 13. In determining which actions or omissions amount to a violation of an economic, social or cultural right, it is important to distinguish the inability from the unwillingness of a State to comply with its treaty obligations. A State claiming that it is unable to carry out its obligation for reasons beyond its control has the burden of proving that this is the case. A temporary closure of an educational institution due to an earthquake, for instance, would be a circumstance beyond the control of the State, while the elimination of a social

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security scheme without an adequate replacement programme could be an example of unwillingness by the State to fulfil its obligations. Violations through acts of commission 14. Violations of economic, social and cultural rights can occur through the direct action of States or other entities insufficiently regulated by States. Examples of such violations include: (a) The formal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed; (b) The active denial of such rights to particular individuals or groups, whether through legislated or enforced discrimination; (c) The active support for measures adopted by third parties which are inconsistent with economic, social and cultural rights; (d) The adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups; (e) The adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed; (f) The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure; (g) The reduction or diversion of specific public expenditure, when such reduction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone. Violations through acts of omission 15. Violations of economic, social, cultural rights can also occur through the omission or failure of States to take necessary measures stemming from legal obligations. Examples of such violations include: (a) The failure to take appropriate steps as required under the Covenant;

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(b) The failure to reform or repeal legislation which is manifestly inconsistent with an obligation of the Covenant; (c) The failure to enforce legislation or put into effect policies designed to implement provisions of the Covenant; (d) The failure to regulate activities of individuals or groups so as to prevent them from violating economic, social and cultural rights; (e) The failure to utilize the maximum of available resources towards the full realization of the Covenant; (f) The failure to monitor the realization of economic, social and cultural rights, including the development and application of criteria and indicators for assessing compliance; (g) The failure to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfilment of a right guaranteed by the Covenant; (h) The failure to implement without delay a right which it is required by the Covenant to provide immediately; (i) The failure to meet a generally accepted international minimum standard of achievement, which is within its powers to meet; (j) The failure of a State to take into account its international legal obligations in the field of economic, social and cultural rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations. III Responsibility for violations State responsibility 16. The violations referred to in section II are in principle imputable to the State within whose jurisdiction they occur. As a consequence, the State responsible must establish mechanisms to correct such violations, including monitoring investigation, prosecution, and remedies for victims. Alien domination or occupation 17. Under circumstances of alien domination, deprivations of economic, social and cultural rights may be imputable to the conduct of the State exercising effective control over the territory in question. This is true under conditions of Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 220

colonialism, other forms of alien domination and military occupation. The dominating or occupying power bears responsibility for violations of economic, social and cultural rights. There are also circumstances in which States acting in concert violate economic, social and cultural rights. Acts by non-state entities 18. The obligation to protect includes the State's responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors. Acts by international organizations 19. The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result from the programmes and policies of the organizations of which they are members. It is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international financial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Member States of such organizations, individually or through the governing bodies, as well as the secretariat and nongovernmental organizations should encourage and generalize the trend of several such organizations to revise their policies and programmes to take into account issues of economic, social and cultural rights, especially when these policies and programmes are implemented in countries that lack the resources to resist the pressure brought by international institutions on their decisionmaking affecting economic, social and cultural rights. IV Victims of violations Individuals and groups 20. As is the case with civil and political rights, both individuals and groups can be victims of violations of economic, social and cultural rights. Certain groups suffer disproportionate harm in this respect such as lower-income groups, women, indigenous and tribal peoples, occupied populations, asylum seekers, refugees and internally displaced persons, minorities, the elderly, children, landless peasants, persons with disabilities and the homeless. Criminal sanctions 21. Victims of violations of economic, social and cultural rights should not face criminal sanctions purely because of their status as victims, for example, Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 221

through laws criminalizing persons for being homeless. Nor should anyone be penalized for claiming their economic, social and cultural rights. V Remedies and other responses to violations Access to remedies 22. Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels. Adequate reparation 23. All victims of violations of economic, social and cultural rights are entitled to adequate reparation, which may take the form of restitution, compensation, rehabilitation and satisfaction or guarantees of non-repetition. No official sanctioning of violations 24. National judicial and other organs must ensure that any pronouncements they may make do not result in the official sanctioning of a violation of an international obligation of the State concerned. At a minimum, national judiciaries should consider the relevant provisions of international and regional human rights law as an interpretive aide in formulating any decisions relating to violations of economic, social and cultural rights. National institutions 25. Promotional and monitoring bodies such as national ombudsman institutions and human rights commissions, should address violations of economic, social and cultural rights as vigorously as they address violations of civil and political rights. Domestic application of international instruments 26. The direct incorporation or application of international instruments recognizing economic, social and cultural rights within the domestic legal order can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Impunity 27. States should develop effective measures to preclude the possibility of impunity of any violation of economic, social and cultural rights and to ensure that no person who may be responsible for violations of such rights has immunity from liability for their actions. Role of the legal professions Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 222

28. In order to achieve effective judicial and other remedies for victims of violations of economic, social and cultural rights, lawyers, judges, adjudicators, bar associations and the legal community generally should pay far greater attention to these violations in the exercise of their professions, as recommended by the International Commission of Jurists in the Bangalore Declaration and Plan of Action of 1995. Special rapporteurs 29. In order to further strengthen international mechanisms with respect to preventing, early warning, monitoring and redressing violations of economic, social and cultural rights, the UN Commission on Human Rights should appoint thematic Special Rapporteurs in this field. New standards 30. In order to further clarify the contents of States obligations to respect, protect and fulfil economic, social and cultural rights, States and appropriate international bodies should actively pursue the adoption of new standards on specific economic, social and cultural rights, in particular the right to work, to food, to housing and to health. Optional protocols 31. The optional protocol providing for individual and group complaints in relation to the rights recognized in the Covenant should be adopted and ratified without delay. The proposed optional protocol to the Convention on the Elimination of All Forms of Discrimination Against Women should ensure that equal attention is paid to violations of economic, social and cultural rights. In addition, consideration should be given to the drafting of an optional complaints procedure under the Convention on the Rights of the Child. Documenting and monitoring 32. Documenting and monitoring violations of economic, social and cultural rights should be carried out by all relevant actors, including NGOs, national governments and international organizations. It is indispensable that the relevant international organizations provide the support necessary for the implementation of international instruments in this field. The mandate of the United Nations High Commissioner for Human Rights includes the promotion of economic, social and cultural rights and it is essential that effective steps be taken urgently and that adequate staff and financial resources be devoted to this objective. Specialized agencies and other international organizations working in the economic and social spheres should also place appropriate emphasis upon economic, social and cultural rights as rights and, where they do not already do so, should contribute to efforts to respond to violations of these rights.

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GLOSSARY OF HOUSING RIGHTS TERMS Accessibility: Adequate housing must be accessible, or readily attainable, to those entitled to it. For example, disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Disadvantaged groups such 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, persons living in disaster-prone areas, and other vulnerable groups should be ensured some degree of priority consideration with respect to their housing rights. Both housing law and policy should take fully into account the special housing needs of such groups if States wish to comply with their legal obligations.

Adequate Housing: Adequate Housing is defined in General Comment No. 4 of the UN Committee on Economic, Social and Cultural Rights. In short, Adequate Housing encompasses legal security of tenure; availability of services, materials, and infrastructure; affordability; habitability; accessibility; a location which allows access to employment, health, education, child care, and other social facilities; and cultural adequacy. For a detailed description of what constitutes "adequate housing" see General Comment No. 4 General comment 4.doc or UN Human Rights Fact Sheet No. 21.

Arbitrary Eviction: The permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. For example, when a tenant allegedly breaches a contractual obligation with the property owner, specific legal procedures (due process) must be followed in order to determine whether the tenant can be lawfully evicted. At a minimum, these procedures must be compatible with international legal standards and most often include a judicial determination as to whether, as a matter of fact, the breach occurred and whether, as a matter of law, the tenant can be evicted on account of that breach. If such legal procedures are not followed, the eviction is arbitrary and contravenes international law. For more information see General Comment No. 7 General Comment 7.doc and UN Human Rights Fact Sheet No.25: Forced Evictions and Human Rights.

Benchmarks: Precise time-related targets set by Governments as a means of planning to achieve the full realisation of a particular right. The eradication of homelessness within ten years is a benchmark. Under the Covenant on Economic, Social and Cultural Rights, States parties are expected to create benchmarks for each of the rights contained in the Covenant.

Bilateral Agreement: An agreement, usually made by way of a treaty, between two States. See, for comparison, Multilateral Agreement.

Commission on Human Rights: A 53 Member State United Nations body responsible for addressing human rights issues, both country-specific situations and thematic issues.

Committee on Economic, Social and Cultural Rights (CESCR): CESCR is a United Nations Treaty Body which monitors implementation of the International Covenant on Economic, Social and Cultural Rights. The Committee is comprised of 18 members who are experts with recognised competence in the field of human rights. Members of the Committee are independent and serve in their personal capacity, not as representatives of Governments. The Committee convenes twice a year, holding two three-week sessions, generally in May and November/December. It holds all its meetings at the United Nations Office at Geneva.

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Compensation: In-kind or monetary payment or reparation for a loss, such as a human rights violation. Under international law, compensation must be "just compensation" which is usually defined as "fair market value" for property losses unless very exceptional circumstances apply. For example, "just compensation" must be an amount equivalent to the value of the property taken and must be paid at the time of the taking, or with interest from that date, in a form economically usable by the person compensated.

Complaint: A petition to an international, regional, or national human rights monitoring body alleging a violation of human rights. Complaints can be made by States, groups, or individuals depending on the particular human rights instrument being monitored.

Communications Procedure: The procedure for making a formal Complaint to the United Nations. A procedure whereby groups or individuals may, under certain conditions, appeal to a UN commission, committee, or treaty body concerning an alleged violation of human rights. In most cases the petitioner must first exhaust all domestic remedies. A complaint of this kind is referred to as a "communication".

Concluding Observations: Upon completion by a UN Committee or Treaty Body of its analysis of periodic reports and the appearance by States Parties, the Committee concludes its consideration of States Parties' reports by issuing Concluding Observations, which constitute the decision of the Committee regarding the status of compliance with given treaties in a given State party. Concluding observations are divided into five sections: (a) introduction; (b) positive aspects; (c) factors and difficulties impeding the implementation of the Covenant; (d) principal subjects of concern; (e) suggestions and recommendations. If the Committee concludes that the State party is violating the respective Covenant or Convention, it may also use Concluding Observations to urge the State party to desist from any further infringement of the rights in question. Concluding observations are adopted in private session, and are released to the public on the final day of each session.

Condominium: Apartment building where each apartment is individually owned and where the common areas are jointly owned.

Contracting State: A State that has consented to be bound by a Covenant, Convention, or Treaty, whether or not the Covenant, Convention, or Treaty has entered into force. See for comparison State party.

Convention: Synonymous with Covenant or Treaty. An international agreement, whether bilateral or multilateral, whereby States agree to bind themselves under international law to conform to its provisions.

Co-operative: Collectively owned and managed housing, usually in joint benefit. Covenant: Synonymous with Convention or Treaty. An international agreement, whether bilateral or multilateral, whereby States agree to bind themselves under international law to conform to its provisions.

Customary International Law: Considered one of the main sources of international law, Customary International Law becomes binding on States although it is not written, but rather adhered to consistently out of custom by a significant number of States which do so out of a sense of legal obligation.

Declaration: Unlike a Covenant, Convention, or Treaty, a Declaration is a statement of principle rather than an agreement by which countries bind themselves under international law. Though not legally binding, Declarations - and in particular the Universal Declaration of

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Human Rights - are considered to have an authoritative moral force, and the Universal Declaration is considered to be the clearest and most forceful expression in the international arena of universally recognized human rights principles. The Universal Declaration of Human Rights, it is argued, has also ripened into customary international law.

Demolition: The act of intentionally demolishing, tearing down, razing, or otherwise destroying a dwelling or other building. Demolitions are often carried out in conjunction with forced evictions.

Derogation: The active assertion by States that certain provisions of a Covenant, Convention, or Treaty are no longer binding upon them. Derogations are official proclamations used most often in the context of a public emergency that threatens the life of a nation. Depending on the terms of particular Covenants, Conventions, or Treaties, a State party may derogate from a number of rights to the extent strictly required by the situation. The State party, however, may not derogate from certain specific rights deemed to be nonderogable and in any event may not derogate on a discriminatory basis. The State party is also under an obligation to inform the other States Parties immediately, through the appropriate mechanism, of the derogations it has made including the reasons for derogation and the date on which the

Displacement: The relocating of individuals or groups away from their place of residence. Displacement can have a number of causes including natural disasters such as floods and earthquakes, development projects such as the construction of dams, armed conflicts, "ethnic cleansing", and urban renewal/development projects. Displacement can occur for legitimate as well as illegitimate purposes. See for comparison: Forced Eviction.

Dweller: Everyone is a Dweller. Dweller is a term used to describe a person in his or her capacity as a resident. The term Dweller does not necessarily describe a person residing in a structure. See also: Pavement Dweller.

Enabling Policies/Principles/Strategies: Policies, principles, and strategies designed to achieve the fulfilment of the right to adequate housing by encouraging all private sector stakeholders to become engaged in housing and urban development.

Enforcement: The act of forcing compliance with legal obligations and protection of rights. Enforcement mechanisms include State Reporting to Treaty Bodies, Communications/Complaint Procedures, judicial remedies, and other procedures at the national, regional, or international level.

Entered Into Force: The date on which a Covenant, Convention or Treaty gains the force of law and thus becomes legally binding upon States Parties.

Entitlement: The right to a certain good under law, such as social welfare, social security, social housing, etc.

Eviction: The permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land that they occupy. See also for comparison: Arbitrary Eviction, Displacement, and Forced Eviction.

Exhaustion of Domestic Remedies: Requirement that a person or group bringing a communication or complaint alleging human rights violations before an international body must first seek all remedies within the States alleged to have violated those rights.

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Expropriation: The taking of land by a government entity, in exchange for compensation, against the sellerยนs will. Similar a Compulsory Purchase or the power of Eminent Domain, Expropriation is a tool used most often by government agencies, local authorities, or public utilities in order to acquire land or certain right to land for what is considered a public purpose.

Forced Eviction: The permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. Forced Evictions are a particular type of Displacement which are most often characterized by (1) a relation to specific decisions, legislation, or policies of States or the failure of States to intervene to halt evictions by non-state actors; (2) an element of force or coercion; and (3) are often planned, formulated, and announced prior to being carried out. The UN Committee on Economic, Social and Cultural Rights has stated that "forced eviction are prima facie incompatible with the requirements of the [International Covenant on Economic, Social and Cultural Rights] and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law." For more information see the Committeeยนs General Comment No. 7 and UN Fact Sheet No. 25: Forced Evictions and Human Rights.

Gender Equality: The principle that discrimination based on gender is prohibited and that all persons, regardless of gender, fully enjoy all human rights on the basis of equality.

General Comment: An official interpretation or elaboration on a specific right enumerated in an international instrument such as a Covenant, Convention, or Treaty.

Global Campaign for Secure Tenure: Campaign launched by the UN Centre on Human Settlements (HABITAT) in September 2000 with the objective of ensuring secure tenure for all within ten years. Security of Tenure is a fundamental requirement for the progressive integration of the urban poor in the city and is one of the most important components of housing rights. This Campaign, undertaken with COHRE as well as Habitat's other partners, will be backed by a work programme offering assistance in key policy areas including land markets and tenure reform. Access to urban services and infrastructure, particularly water and sanitation, are vital elements of the strategy. HABITAT will also provide policy advice and technical support in housing finance, with an emphasis on micro-credit and micro-enterprise, as well as urban transport policy and shelter delivery systems. For more information see: http://www.unchs.org/tenure/.

Homeless: A person or family lacking access to permanent housing. A homeless person is a person who lacks a fixed, regular, and adequate night time residence or a person whose primary night-time residence is a supervised or publicly operated shelter designed to provide temporary living accommodation, or an institution that provides a temporary residence for individuals intended to be institutionalised, or a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.

Housing: Both the actual process of creating a physical home, as well as the generic term for the dwellings in which all human beings reside.

Housing Discrimination: Acts or policies that block or do not provide for equal access to housing. For example, not selling or renting to a person on account of that persons race, gender, nationality, religion, ethnicity, sexual orientation, disability etc. would constitute housing discrimination. Likewise, not lending financial support in order to purchases housing on account of the above factors would constitute housing discrimination.

Housing Rights: The extensive body of rights at the international, regional, national, and local levels that apply to housing ownership, tenancy, housing quality, etc. For example, the international right to adequate housing is enshrined in the Universal Declaration of Human

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Rights as well as the International Covenant on Economic, Social and Cultural Rights. Housing rights are also to be found in regional instruments such as the European Convention as well as national legislation and municipal ordinances.

Human Rights: The basic and alienable rights to which all members of the human family are universally entitled. Human Rights are articulated in a large body of international, regional and national laws.

Internally Displaced Person (IDP): Persons who have been forced to flee their homes to escape armed conflict, generalized violence, human rights abuses, or natural or man-made disasters but remain in the country of their nationality or country of habitual residence.

Implementation: To put into effect, for example human rights and State obligations under a human rights instrument.

Inadequate Housing: Housing which does not meet the legal definition of Adequate Housing as defined in General Comment No. 4 of the UN Committee on Economic, Social and Cultural Rights or which otherwise threatens a personยนs security, health, welfare or dignity. In other words, housing which does not meet one or more of the general criteria consisting of legal security of tenure; availability of services, materials, and infrastructure; affordability; habitability; accessibility; a location which allows access to employment, health, education, child care, and other social facilities; or cultural adequacy. For a detailed description of what constitutes Adequate Housing see: General Comment No. 4 or UN Fact Sheet No. 21.

Inhabitant: One who resides actually and permanently in a given place. Jurisprudence: Case law and other judicial decisions amounting to a coherent system of law. Jurisprudence often provides authoritative or persuasive interpretations of legal standards and norms.

Justiciability: The ability to utilize judicial remedies as a means of enforcing legal rights, obligations, standards, and norms.

Legal Obligation: An obligation that a State or private entity must abide by in order to comply with a legally recognized and articulated standard or norm. International law creates legal obligations on behalf of States which ratify treaties, which in turn create legal obligations.

Limitations: An act of a State party that restricts the exercise of a specific right or rights enumerated in a Covenant, Convention, or Treaty.

Minimum Core Entitlements: Pursuant to the Minimum Core Entitlements principle, persons residing in a State party to the International Covenant on Economic, Social, and Cultural Rights enjoy minimum core entitlements to the rights embodied in the ICESCR. See also: Minimum Core Obligations.

Minimum Core Obligations: The Committee on Economic, Social and Cultural Rights has stated that State parties to the ICESCR have minimum core obligations to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights embodied in the ICESCR. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations

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under the Covenant. For more information see the Committeeยนs General Comment 3, paragraph 10.

Multilateral Agreement: An agreement, usually made by way of a Covenant, Convention, or Treaty, among more than two States. See, for comparison, Bilateral Agreement.

Non-Governmental Organisation: :Non-Governmental Organisations (NGOs) are organisations that operate independently from governments. The functions of NGOs differ according to their respective mandates, resources, and the geographic and thematic areas in which they operate. Many major NGOs have consultative status with international organisations such as the United Nations, the Council of Europe, the Organization for African Unity, the Organization of American States, and other regional or specialized intergovernmental organization. As such, NGOs work on fact-finding, lobbying, submitting reports, and testifying before these international bodies. COHRE is an international human rights NGO.

Optional Protocol: An international agreement complementing or supplementing a Covenant, Convention, or Treaty by adding new elements or requirements. The term "optional" emphasises that the States, which ratified the original Covenant, Convention, or Treaty, are not under any formal obligation to agree to the protocol as well, though they are encouraged to do so.

Ratification: An act whereby a State establishes on the international plane its consent to be bound by a Covenant, Convention, or Treaty.

Recommendation: Documents explaining how a particular Covenant, Convention, or Treaty should be interpreted and applied.

Refugee: A refugee is a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.

Rehabilitation: Restoring a person or thing to a former capacity. Restoration of a person to his or her greatest potential, whether physically, mentally, socially, or vocationally.

Relocation: The act of moving persons from their usual dwelling places to another location. Relocation, like resettlement (see below) should be avoided if at all possible, unless it is in the express interests of the dwellers concerned. If relocation is unavoidable, sufficient resources must be made available so that the effected population does not suffer from the process. The parties benefiting from the relocation should be responsible for such resources.

Removal: The act of removing persons from the location in which they reside. Removal should only occur if it is in the public interest and those affected are afforded due process. Proper Relocation/resettlement plans should be part of any Removal.

Resettlement: Resettlement in the context of mass eviction, whether voluntary or involuntary, entails moving persons to a new location. Persons should only be displaced and resettled when it is in the public interest, or where the safety, health or enjoyment of human rights so demands. Suitable resettlement includes the right to alternative land or housing which is safe, secure, accessible, affordable and habitable.

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Reservation: A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving, or acceding to a Covenant, Convention, or Treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the Covenant, Convention, or Treaty in their application to that State.

Resolution: An official statement by an inter-governmental, regional, or non-governmental organization adopted by a majority vote or by consensus. The legal validity of resolutions adopted by inter-governmental organization such as the United Nations is subject to different interpretations. A UN resolution, however, is considered a persuasive statement by the international community representing its collective views on a particular legal standard or specific situation.

Restitution: Compensation for loss or injury by returning as far as possible to the original position, including the return of arbitrarily or illegally confiscated housing or property as a form of restorative justice. Housing and property restitution is increasingly viewed as a right of displaced persons under international human rights law, and as the key means to returning situations to their original state. COHRE carries out a Housing and Property Restitution Programme designed to strengthen this right.

Right to Adequate Housing: The Right to Adequate Housing is enshrined in Article 25(1) of the Declaration of Human Rights and Art. 11(1) of the International Covenant on Economic, Social and Cultural Rights. The UN Committee on Economic, Social and Cultural Rights has elaborated on the Right to Adequate Housing in its General Comment No. 4.

Right to the City: A phrase used mostly in Latin America (el derecho a ciudad) to describe the right of all citizens, particularly the poor, to have a right to live in the city and benefit from the economic and cultural opportunities that cities have to offer.

Security of Tenure: Security of tenure describes an agreement, governed by a legal framework, between individuals or groups regarding use of land or residential property generally to such an extent that those with security of tenure are protected against arbitrary forced eviction. The Security derives from the fact that the right of access to and use of the land or property is underwritten by a known set of rules and that the right is justiciable. An individual or group, such as a family, can be said to have Secure Tenure when they are protected from involuntary removal from their land or residence, except in exceptional circumstances, and then only by means of a known and agreed legal procedure. Forms of Secure Tenure include leasehold, freehold, conditional freehold, collective tenure, and communal tenure. COHRE believes that secure tenure is essential to developing sustainable cities, human dignity and urban development. Sites and Services: The provision of plots of land served by a basic infrastructure commonly including water supply systems, electricity supply systems, road construction, rainwater drainage systems, and street lighting. Persons provided with Sites and Services construct their own dwellings.

Social Housing: Housing financed, constructed and/or allocated by the State or public sector, generally designated for low income groups. Social housing is generally kept at affordable rent levels or, when involving owner-occupation, financed with low-interest loans or credit.

Special Rapporteur: A person appointed by the United Nations with a mandate to examine specific countries or themes and report thereon to the appointing UN Body. For example, Special Rapporteurs are appointed as envoys by both the UN Commission on Human Rights and the UN Sub-Commission on the Promotion and Protection of Human

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Rights to monitor human rights violations in specific countries (Country Rapporteur) or to monitor specific areas of human rights globally (Thematic Rapporteur).

Squatter: A person residing in a dwelling unit or on land without legal title to that dwelling or land. For example, persons who take up residence in unused or abandoned dwellings or buildings are squatters. Under certain circumstances, squatters can eventually acquire ownership rights to the dwelling or building in which they reside. See also: adverse possession above. Certain States offer legal protection to squatters by allowing them continued possession of the dwelling or building and guaranteeing that they will not be evicted.

State Party: A State which has consented to be bound by a Covenant, Convention, or Treaty and for which the Covenant, Convention, or Treaty is in force. See also: Contracting State.

State Party Reports: See: Periodic Reports. State Responsibility: The general rules governing the international responsibility of the State. Under international law, States are deemed to be liable for official acts or omission involving a denial of justice falling below the international minimum standards. In the realm of human rights, the Universal Declaration of Human Rights is considered to supply the international minimum standards by which a State is to be held accountable. Covenants, Conventions, and Treaties provide additional international standards to States Parties.

Substantive Law: The bodies of law laying out rights, duties, and obligations, as distinct from procedural law which addresses the procedures available to enforce substantive and other laws. See also: Procedural Law.

Tenant: A person possessing the legal right to occupy a land or a dwelling but who does not own it. In the broadest legal sense, a Tenant is one who holds or possesses land or a dwelling by any kind of right or title. In the restricted, but more commonly used sense, one who holds a right to occupy land or a dwelling of another. Tenure: The mode by which land or Real Property is held. Tenure describes an agreement, governed by a legal framework, between individuals or groups regarding use of land or residential property. See also: Secure Tenure.

Transmigration: Migration across international boundaries, for example from one country into another often with the expressed intent to alter the demographic composition of the territory involved.

Treaty: Synonymous with Convention or Covenant. An international agreement, whether bilateral or multilateral, whereby States agree to bind themselves under international law to conform to its provisions.

Treaty Body: A body, usually called a Committee, established by a Covenant, Convention, or Treaty to monitor implementation of and how well States Parties abide by their obligations under that particular Covenant, Convention, or Treaty.

Violation: A failure to abide by a legal obligation. A human rights violation is, therefore, a failure by a State or a third party to abide by a human rights obligation. Violations can take place both through acts of commission and acts of omission.

Centre on Housing Rights and Evictions Housing Rights for Everyone, Everywhere 231