10 | March 27, 2019
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RIGHTS REVIEW The International Human Rights Program at the University of Toronto Faculty of Law An independent student-led publication Co-Editors-in-Chief: Anne-Rachelle Boulanger (4L JD/MGA) & Brenda Chang (3L) Senior Editors: Chelsey Legge (4L JD/MPP) & Emily Tsui (2L JD/MGA)
THE HOMELESSNESS CRISIS AS A CRISIS IN ACCESS TO JUSTICE THE UNITED NATIONS HUMAN RIGHTS COUNCIL HEARS HOW EMPOWERMENT OF THE VULNERABLE CAN DRIVE REALISATION OF THE RIGHT TO HOUSING FOR EVERYONE By Sahar Sayyad (2L) and Seána Glennon (LLM) The Canadian winter, delayed flights, torrential rain, and a missed connection did nothing to dampen our spirits on our journey to the 40th Session of the United Nations Human Rights Council in Geneva. We were going to witness the fruits of our labour—the delivery of the report of the UN special rapporteur (SR) on the right to adequate housing, Leilani Farha, on 4 March 2019. Over the past two semesters, we have participated in the International Human Rights Program (IHRP) Clinic. Working directly with Bruce Porter, the SR’s senior advisor, we researched access to justice for violations of the right to housing around the world, identifying systemic patterns of denial of access to justice and seeking examples of best practices. Our focus was not limited to judicial or legislative mechanisms, but also considered access to informal or customary justice, especially for the most marginalized groups in society. The Palais des Nations was a hive of activity as we waited in line to collect our security passes the morning of the presentation of the report. Delegates from countries around the world bustled through the cavernous Serpent Bar, drinking coffee, making calls, and typing furiously. States had already begun submitting their comments and questions on the report. Our team met to finalise the SR’s introductory speech and comb our research for useful examples to feed into her responses. Entering the ‘Human Rights and Alliance of Civilizations’ room was a thrilling experience, but we did not have much time to admire the famous multi-coloured elliptical dome ceiling with its dangling icicle shapes, or to take in the sheer number of state representatives and press members seated around the room. We established ourselves in the section reserved for members of the press and began reviewing and collating the questions as they came flooding in. We communicated our suggested responses and pointers to Bruce Porter, who in turn filtered the responses and communicated directly with the SR as she sat on the panel at the head of the room. Housing is a fundamental right affirmed in the Universal Declaration of Human Rights. Historically, however, social and economic rights, such as the right to shelter, have been treated differently from civil and political rights in terms of their enforceability. This has changed over the past 20 years, in particular with the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Both sets of rights are now recognised as equally vital to
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achieving human dignity; the end of the differential treatment between them was described by the UN High Commissioner for Human Rights as “human rights made whole.” Access to justice is fundamental to the notion of housing as a human right. Today, an estimated 1.8 billion people around the world lack adequate housing, and homelessness and forced evictions are continuing to increase internationally. If housing is a right, then the obvious question is: where can people go to claim it? Having spent the past six months delving through endless materials on the many barriers to access to justice for the right to housing around the world, it was heartening to see delegates from the four corners of the globe engage with the issues and share their country’s new measures to progressively realise the right to housing. They also pressed the SR for information and ideas on best practices to more effectively address this global crisis. After the marathon five-hour presentation of the report and discussion of questions, our UN experience continued. Over the following two days, we had the opportunity to attend an array of side events scrutinising more deeply the issue of access to justice in the context of housing rights and social and economic rights more broadly. Having worked intensively all year to identify relevant case law and legislation on the right to housing, we came to understand that sometimes it is easy to have a fatalistic view on ever achieving housing for everyone. We also had to actively resist the impulse to think of advancement of the right to housing only in terms of the titles of cases, or the passing of legislation, or the amendment of constitutions. Behind every small or significant piece of progress stands a real person whose struggle helped light the way for others. These are the names behind the famous cases, like Irene Grootboom in South Africa. In Government of the Republic of South Africa and Others v. Grootboom and Others, the Constitutional Court of South Africa recognized adequate housing as a fundamental human right that must be progressively realized by the state. Many commentators, however, view this groundbreaking decision as a failure, because at the time of her death, Irene Grootboom remained homeless. But this view fails to do justice to the trail she blazed for those who came afterwards, and how her experiences and perseverance highlighted the connection between the fundamental right to a dignified life and the right to adequate housing.
BRUCE PORTER (LEFT) AND JULIETA PERUCCA (RIGHT) WATCH THE SPECIAL RAPPORTEUR PRESENT HER REPORT TO THE HUMAN RIGHTS COUNCIL ON 4 MARCH 2019. PHOTO CREDIT: SAHAR SAYYAD.
While the side events emphasized the lived experiences of those who have fought for progress and gave us some hope for the future, we still have a long way to go. Because the factors contributing to homelessness in so many different countries are often the same, gathering together to share ideas and strategies is important progress toward resolving the issue. After three intensive days at the UN, the SR team gathered on our last night in Geneva for a Swiss staple—copious fondue and mountains of bread. It was the perfect way to end the trip, as the SR and her team shared stories from their work and travels. We felt incredibly privileged to work on such a timely and important issue with a group of people who are passionate about seeing
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the right to housing realized around the world. Homes are not just commodities; they are the basic building blocks of our society and they allow each of us to take our place and participate in the world. Access to justice is an indispensable tool in realising this right for everyone, because it empowers those in need to claim their right. If the States that so enthusiastically took part in the discussions in Geneva this month want to show that they are serious about their international and domestic obligations, then much more work will need to be done. That work should focus on breaking down the barriers to justice and shaping law and policy in a way that respects this most essential of human rights.
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