Condensed: Deriving from the right of everyone to an adequate standard of living, housing should be (a) adequate and (b) made available to all on a non-arbitrary or non-discriminatory basis. Adequacy of housing includes: 1) legal security of tenure, 2) availability of services, materials, facilities and infrastructure, 3)affordability, 4) habitability, 5) accessibility, 6) location and 7) cultural adequacy. Discrimination in access to adequate housing may impair availability to all when it occurs on the basis of a certain status such as race or sex but it is also recognised that exclusion in housing occurs as a result of poverty and economic marginalisation. Comprehensive: The right to adequate housing is derived from the right of everyone to an adequate standard of living in article 11(1) of the ICESCR.[1] From this provision, housing should therefore be (a) adequate and (b) made available to all on a non-arbitrary or non-discriminatory basis. The concept of adequacy in housing can be described with reference to:[2]
legal security of tenure which means that, regardless of 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. Deprivation of adequate housing can take place through a variety of means including forced eviction. See *denial of tenure security to particular groups*; *forced evictions*.
Availability of services, materials, facilities and infrastructure, including facilities essential for health, access to safe drinking water, sanitation and electricity;
affordability meaning that the cost of housing should not be such that it threatens or compromises the attainment of other basic needs;
housing should be habitable in that it provides adequate space and protection from the elements or other threats;
accessible to everyone and take into account the need of the disadvantaged, marginalized and vulnerable groups;
located in areas that allow access to employment options and social facilities and should not be built on or near polluted sites; and
constructed in a manner that is culturally appropriate and enables expression of cultural identity.
Discrimination can take many forms, including:[3] discriminatory laws, policies or measures; zoning regulations; exclusionary policy development; exclusion from housing benefits; denial of security of tenure; lack of access to credit; limited participation in decision-making; or lack of protection against discriminatory practices carried out by private actors. Discrimination in access to adequate housing may impair availability to all when it occurs on the grounds enumerated in article 2(2) of the ICESCR, but it is also recognised that exclusion in housing occurs as a result of poverty and economic marginalisation.[4] The Constitutional Court of South Africa in the Grootboom case found a violation of the right to adequate housing because the State had not made reasonable accommodation for the needs of the most vulnerable members of the community.[5] Using a criterion of minimum income of potential tenants to rent property has been ruled to constitute indirect discrimination since it would adversely affect women, racial minorities, young people and those receiving social security.[6] Discrimination in access to housing can also take place against particular groups such as women, children, IDPs, minorities, indigenous peoples, refugees, migrant workers, the poor and so on. In some cases, discrimination in the access to housing can be based in a convergence of a variety of grounds. For example, the CERD Committee has noted that ‘in many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds’.[7] In LR v Slovakia the CERD Committee found that a local authority’s reversal of a decision to build low cost housing for the local Roma population as a result of a petition by other inhabitants of the locality as discriminatory on the basis of race.[8] Further, that the action by the local authority resulted in the ‘impairment of the recognition or exercise on an equal basis of the human right to housing …’.[9] The European Committee on Social Rights found a violation of the right to adequate housing against Greece on the basis that a significant number of Roma were living in conditions that failed to meet minimum standards; and that local authorities did not provide a sufficient supply of appropriate camping sites for the itinerant Roma community.[10] The Committee considers adequate housing to refer ‘not only to a dwelling which must not be sub-standard and must have essential amenities, but also to a dwelling of suitable size considering the composition of the family in residence’.[11] Discrimination against women often results from discriminatory customs and traditions, social norms, family and personal laws, gender bias in legislation and policy, violence against women[12], amongst other causes. Examples of discriminatory action against women causing violations of their right to adequate housing include denial of women’s equal ownership rights over housing and/or land, including vis-à-vis rights in marriage, and de facto exclusion of women from titling processes. In some cases, discriminatory action may also take the form of customary or traditional practices which deny women their equal rights over housing and land, as seen in cases of ‘property-grabbing’ perpetrated by in-laws against widows.[13]
[This section - as other sections - should look into de jure and de facto discrimination]
[1] Other international instruments include UDHR art 25; CEDAW art 14(2)(h); CERD art 5(e)(iii); CRC art 27(3); ICRMW art 43(1)(d); ACRWC art 20(2)(a); ESC (Revised) art 31 (see http://www.ohchr.org/EN/Issues/Housing/Pages/InternationalStandards.aspx). The African Charter does not explicitly provide for a right to housing, however, the African Commission in SERAC v Nigeria (2001) AHRLR 60 (ACHPR 2001) para 60 held that the right was implied in arts 14 (right to property), 16 (right to the best attainable standard of health) and 18(1) (rights of the family) of the African Charter (see recently adopted "Principles and Guidelines on the Interpretation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights").
[2] CESCR General Comment 4 para 8. The Special Rapporteur on adequate housing considers nine additional elements of adequacy of housing ie access to land, water and other natural resources; freedom from dispossession, damage and destruction; access to information; participation; resettlement, restitution, compensation, non-refoulement and return; privacy and security; access to remedies; education and empowerment and freedom from violence against women. See Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari E/CN.4/2006/118 (2006) para 11
[3] OHCHR, UN-Habitat ‘The right to adequate housing’ Fact Sheet No 21/Rev 1, 10.
[4] Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, submitted pursuant to Commission resolution 2000/9 E/CN.4/2001/51 para 64.
[5] Government of the Republic of South Africa v Grootboom & Others 2001 (1) SA 46; 2000 (11) BCLR 1169 (CC) para 44.
[6] Kearney & Ors v Bramlea Ltd & Ors Ontario Board of Inquiry, (No.2) (1998), 34 CHRR D/1.
[8] LR v Slovakia Communication 31/2003 (CERD 2005) para 10.5.
[9] LR v Slovakia Communication 31/2003 (CERD 2005) para 10.7.
[10] European Roma Rights Center v Greece complaint 15/2003, (ECSR 2004).
[11] European Roma Rights Center (ERRC) v Greece complaint 15/2003, (ECSR 2004) para 24. See also ERRC v Bulgaria complaint 31/2005 (ESCR 2006).
[12] See Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari E/CN.4/2006/118 (2006) paras 16, 32-36, referring to AT v Hungarycommunication 2/2003 (CEDAW 2005).
[13] Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari E/CN.4/2006/118 (2006) paras 37-46. .
Deriving from the right of everyone to an adequate standard of living, housing should be (a) adequate and (b) made available to all on a non-arbitrary or non-discriminatory basis. Adequacy of housing includes: 1) legal security of tenure, 2) availability of services, materials, facilities and infrastructure, 3)affordability, 4) habitability, 5) accessibility, 6) location and 7) cultural adequacy.
Discrimination in access to adequate housing may impair availability to all when it occurs on the basis of a certain status such as race or sex but it is also recognised that exclusion in housing occurs as a result of poverty and economic marginalisation.
Comprehensive:
The right to adequate housing is derived from the right of everyone to an adequate standard of living in article 11(1) of the ICESCR.[1] From this provision, housing should therefore be (a) adequate and (b) made available to all on a non-arbitrary or non-discriminatory basis.
The concept of adequacy in housing can be described with reference to: [2]
Discrimination can take many forms, including:[3]
discriminatory laws, policies or measures; zoning regulations; exclusionary policy development; exclusion from housing benefits; denial of security of tenure; lack of access to credit; limited participation in decision-making; or lack of protection against discriminatory practices carried out by private actors.
Discrimination in access to adequate housing may impair availability to all when it occurs on the grounds enumerated in article 2(2) of the ICESCR, but it is also recognised that exclusion in housing occurs as a result of poverty and economic marginalisation.[4] The Constitutional Court of South Africa in the Grootboom case found a violation of the right to adequate housing because the State had not made reasonable accommodation for the needs of the most vulnerable members of the community.[5] Using a criterion of minimum income of potential tenants to rent property has been ruled to constitute indirect discrimination since it would adversely affect women, racial minorities, young people and those receiving social security.[6]
Discrimination in access to housing can also take place against particular groups such as women, children, IDPs, minorities, indigenous peoples, refugees, migrant workers, the poor and so on. In some cases, discrimination in the access to housing can be based in a convergence of a variety of grounds. For example, the CERD Committee has noted that ‘in many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds’.[7] In LR v Slovakia the CERD Committee found that a local authority’s reversal of a decision to build low cost housing for the local Roma population as a result of a petition by other inhabitants of the locality as discriminatory on the basis of race.[8] Further, that the action by the local authority resulted in the ‘impairment of the recognition or exercise on an equal basis of the human right to housing …’.[9]
The European Committee on Social Rights found a violation of the right to adequate housing against Greece on the basis that a significant number of Roma were living in conditions that failed to meet minimum standards; and that local authorities did not provide a sufficient supply of appropriate camping sites for the itinerant Roma community.[10] The Committee considers adequate housing to refer ‘not only to a dwelling which must not be sub-standard and must have essential amenities, but also to a dwelling of suitable size considering the composition of the family in residence’.[11]
Discrimination against women often results from discriminatory customs and traditions, social norms, family and personal laws, gender bias in legislation and policy, violence against women[12], amongst other causes. Examples of discriminatory action against women causing violations of their right to adequate housing include denial of women’s equal ownership rights over housing and/or land, including vis-à-vis rights in marriage, and de facto exclusion of women from titling processes. In some cases, discriminatory action may also take the form of customary or traditional practices which deny women their equal rights over housing and land, as seen in cases of ‘property-grabbing’ perpetrated by in-laws against widows.[13]
[This section - as other sections - should look into de jure and de facto discrimination]
[1] Other international instruments include UDHR art 25; CEDAW art 14(2)(h); CERD art 5(e)(iii); CRC art 27(3); ICRMW art 43(1)(d); ACRWC art 20(2)(a); ESC (Revised) art 31 (see http://www.ohchr.org/EN/Issues/Housing/Pages/InternationalStandards.aspx). The African Charter does not explicitly provide for a right to housing, however, the African Commission in SERAC v Nigeria (2001) AHRLR 60 (ACHPR 2001) para 60 held that the right was implied in arts 14 (right to property), 16 (right to the best attainable standard of health) and 18(1) (rights of the family) of the African Charter (see recently adopted "Principles and Guidelines on the Interpretation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights").
[2] CESCR General Comment 4 para 8. The Special Rapporteur on adequate housing considers nine additional elements of adequacy of housing ie access to land, water and other natural resources; freedom from dispossession, damage and destruction; access to information; participation; resettlement, restitution, compensation, non-refoulement and return; privacy and security; access to remedies; education and empowerment and freedom from violence against women. See Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari E/CN.4/2006/118 (2006) para 11
[3] OHCHR, UN-Habitat ‘The right to adequate housing’ Fact Sheet No 21/Rev 1, 10.
[4] Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, submitted pursuant to Commission resolution 2000/9 E/CN.4/2001/51 para 64.
[5] Government of the Republic of South Africa v Grootboom & Others 2001 (1) SA 46; 2000 (11) BCLR 1169 (CC) para 44.
[6] Kearney & Ors v Bramlea Ltd & Ors Ontario Board of Inquiry, (No.2) (1998), 34 CHRR D/1.
[7] CERD General Recommendation 19 para 3.
[8] LR v Slovakia Communication 31/2003 (CERD 2005) para 10.5.
[9] LR v Slovakia Communication 31/2003 (CERD 2005) para 10.7.
[10] European Roma Rights Center v Greece complaint 15/2003, (ECSR 2004).
[11] European Roma Rights Center (ERRC) v Greece complaint 15/2003, (ECSR 2004) para 24. See also ERRC v Bulgaria complaint 31/2005 (ESCR 2006).
[12] See Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari E/CN.4/2006/118 (2006) paras 16, 32-36, referring to AT v Hungary communication 2/2003 (CEDAW 2005).
[13] Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari E/CN.4/2006/118 (2006) paras 37-46. .