JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(18) Human Rights

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HR

Housing

We have just seen that the right to health does not mean that an individual can demand unlimited resources from the government. Similarly, Scott Leckie, in one of his core contributions to the topic, starts out by assuring the reader that 'The legal texts establishing housing rights norms obviously were not created to ensure the right of everyone to inhabit a luxurious mansion, surrounded by well-sculpted gardens.' It is the concept of adequacy that has been central to the development of the right to housing since its inclusion in the Universal Declaration of Human Rights in 1948. This concept takes us beyond a minimal notion of shelter, the roof over one's head, and focuses our attention on the crucial concerns of the individual holders of the right.

Worldwide the housing situation is dire, with the UN estimating that 600 million urban dwellers and over one billion rural dwellers live in overcrowded and poor-quality housing with inadequate provision of water, sanitation, drainage, and garbage collection.

The UN Committee on Economic, Social and Cultural Rights has paid particular attention to the right to adequate housing (as found in the Covenant on Economic, Social and Cultural Rights) and addressed the question of adequacy in some detail, highlighting the following aspects: (i) legal security of tenure; (ii) availability of services, materials, facilities, and infrastructure; (iii) affordability; (iv) habitability; (v) accessibility; (vi) location; (vii) cultural adequacy. With regard to the immediate obligation of governments, there is clearly an obligation to abstain from practices that are discriminatory, or that involve illegal forced evictions.

Let us look at the legal security of tenure. Tenure is a flexible institution, which can take different forms in different contexts. The Committee includes: 'rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including the occupation of land or property'. There has also been an interest in the security of tenure from economists and those working in development. This right is not only about the protection of dignity, but can, in addition, be seen as instrumental to economic development. We should also consider, however, that property rules may be part of the problem rather than a simple solution. For example, in many countries property is registered in the man's name alone, often limiting women's access to housing in the event of death or divorce.

Perhaps the greatest focus in this area has been on the legal and procedural protections that have to be developed in the context of forced evictions' as defined in human rights law. The general prohibition on forced evictions is an obligation of immediate obligation. The Committee has defined forced evictions as follows: 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. This immediate obligation is now at the heart of housing rights activism. Part of the focus has been on large-scale development projects. In turn, this has prompted the adoption of guidelines on involuntary resettlement by the Organization for Economic Cooperation and Development, as well as by the World Bank. These elaborate guidelines, norms, and recommendations have, in some cases, been used to prevent or halt forced evictions and remind governments that housing is a human rights issue. But things are not really so simple. As with other rights, such as the right to privacy, housing rights come up against other fundamental rights claims. Consider the right to water of the people of Gujarat and the rights of those about to be displaced from their housing in the area designated to be flooded for the Narmada dam in India. Invoking human rights does not determine the dilemma. Human rights principles, however, provide the vocabulary for the evaluation of the decision-making process. The majority of the Indian Supreme Court was careful to avoid replacing the government's decisions with a judicial preference for one set of rights claims. Conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was only one solution, namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water... When a decision is taken by the Government after due consideration and full application of mind, the Court is not to sit in appeal over such decision.

In closing this text on housing, we should point out that so amount to international crimes and now give rise to individual criminal responsibility. Starting with the crimes mentioned in the Rome Statute for the International Criminal Court, we could mention that a widespread or systematic attack against the civilian population involving the deportation or forced transfer of persons constitutes an international crime against humanity. Of direct relevance are war crimes involving the destruction of housing. The law here is complex and recognises that there will be some necessary damage in times of armed conflict, but one might mention three separate international war crimes.

First, the war crime of extensive destruction and appropriation of property by an Occupying Power, not justified by military necessity, and carried out unlawfully and wantonly;

Second, in an international armed conflict, the war crime of intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

Third, in the context of civil wars, destroying or seizing the property of an adversary unless such destruction or seizure is imperatively demanded by the necessities of the conflict.

Those who order, facilitate, or carry out such destruction of housing commit war crimes and could be prosecuted, not just in a relevant international criminal tribunal, but in the courts of any state willing to bring such suspected war criminals to justice.

 

UN General Assembly 2005 Summit Outcome, para 68(i)

 

To provide, with the aim of an AIDS-, malaria- and tuberculosis-free generation in Africa, assistance for prevention and care and to come as close as possible to achieving the goal of universal access by 2010 to HIV/AIDS treatment in African countries, to encourage pharmaceutical companies to make drugs, including antiretroviral drugs, affordable and accessible in Africa and to ensure increased bilateral and multilateral assistance, where possible on a grant basis, to combat malaria, tuberculosis and other infectious diseases in Africa through the strengthening of health systems.

 

 

The 1996 UN Conference on Human Settlements (Habitat Agenda) para. 60

 

Adequate shelter means more than a roof over one's head. It also means adequate privacy; adequate space; physical accessibility; adequate security; security of tenure; structural stability and durability; adequate lighting, heating and ventilation; adequate basic infrastructure, such as water supply, sanitation and waste management facilities; suitable environmental quality and health-related factors; and adequate and accessible location with regard to work and basic facilities: all of which should be available at an affordable cost. Adequacy should be determined together with the people concerned, bearing in mind the prospect for gradual development. Adequacy often varies from country to country, since it depends on specific cultural, social, environmental and economic factors. Gender-specific and age-specific factors, such as the exposure of children and women to toxic substances, should be considered in this context.

 

 

 

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