Social Production of Habitat and
the Human Right to Adequate Housing

 Joseph Schechla, coordinator of the Housing and Land Rights Network of Habitat International Coalition

Experiences in the social production of habitat (SPH) are diverse in their objectives, scope and tactic, thus complicating any attempt at generalization. However, considering the nature of social movements (SMs), in general, and those movements of impoverished inhabitants engaged in SPH, in particular, it is still possible to draw out a number of common features. Expressed as observations, rather than definitive conclusions, the experiences under review suggest the following:

1. SMs and SPH experiences both have no stable/permanent/singular texture, composition or cohesion, but are dynamic, expanding and contracting over time;

2.      SPH experiences usually begin with individual, discrete actions before ultimately converging in a collective form, featuring:[1]

1.  
   1. Active protagonists inclined to link with others in a flexible planning process,
   2. Diagnosis of problems based upon a agreed expression of needs,
   3. Participatory decision making that includes the whole of the actors,
   4. Processes of consensus building and conflict resolution
   5. Projects that express a collective sense of what is possible, and
   6. Collective construction and implementation of action plans.[2]
2. perhaps more than any other social group, the impoverished inhabitants mostly rely on themselves to survive and improve their living conditions;
3. the ordinary people are able to bring about changes that charismatic leadership, State policy and/or revolutions do not achieve, but positively affecting the (however uneven) “circulation” of power in the favor of the marginalized, vulnerable and impoverished communities;[3]
4. the relative disadvantage in education, skills, connections and other opportunities makes direct SPH actions the most viable method of self-development;
5. the disenfranchised cannot afford to be ideological; they can be ideologically polarized, but SPH actions seek and deliver tangible improvement in living conditions as the over-riding principle;
6. SPH movements are not necessarily concerned with, or driven by larger, political considerations (in some case, social scientists assign these features post facto);
7. the language of claiming rights is found in uneven measure across SPH experiences, but appears to develop with the articulation and justification of collective interests and objectives, especially when the community (and its dwellings) are threatened and/or their SPH actions are challenged;
8. SMs and, especially, SPH movements promote democratization locally and more broadly;[4]
9. while alternative development necessarily begins locally, “without the state’s collaboration, the lot of the poor cannot be significantly improved”;[5] therefore, the State’s control over the development process may be over-estimated;
10.  the State could and should play a more-constructive role in coordinating functions (to respect, protect and fulfill rights) to facilitate SPH;
11. State institutions gain local and international legitimacy by upholding housing rights obligations when playing the facilitating role in support of SPH.

It is with these observations that we begin to discover the ground common to both SPH and HRAH not only in the nature and objectives of the SPH process, but, ultimately, also in the expression of values and claims. This section attempts, first of all, to identify the housing-rights content already present in SPH experience, whether the actors articulate it as such or not. In doing so, we shall be able to appreciate the advantages to all concerned parties in drawing on the housing rights framework in the SPH process. Thus, this inquiry culminates in the proposition that human rights—and, in particular, HRAH—and SPH are naturally and inextricably intertwined. Although neither SPH nor housing rights is particularly new to most regions, combining the lessons and techniques of both specializations can provide new strategies to address contemporary development problems and policy dilemmas, especially those accompanying economic globalization.

SPH demonstrates characteristic needs and rights:

New social movements are generally characterized as expressing distinct identity and deep meaning, while pursuing a goal or interest.[6] Some forms of social movements display less-verbal expression and more action. SPH is one of a category of social movement experiences that often emphasizes deeds over words, and whose key actors are local, rather than adopting, or adapting to notions, values and goals originating outside the community. Nonetheless, the expression arising from these experiences constitutes an amazingly common language reflecting common needs and values, including the search for life in dignity.[7] The intrinsic dignity of each person is, in fact, the core value that eventually became codified into human rights law.

In SPH movements, expedient self-fulfillment assumes the highest priority, often despite those authorities, institutions and public facilities that are theoretically obligated under human rights law to ensure such fulfillment (e.g., central and local authorities, ministries, or even budget allotments). SPH movements fill the gaps left from the State’s (i.e., duty holders’) failure to “respect, protect and fulfill” human rights, particularly the human right to adequate housing (HRAH) and related rights.

Largely due to their origins in discrete and even individualistic initiatives, SPH actors often find themselves responding tactical to a “structure of opportunities,”[8] rather than first erecting a legal framework for an initial claim to a human right. Articulation of such rights, per se, features in the more-advanced stages of SPH, just as collective articulation in general, or alternative planning en groupe require a deliberate process to evolve. Even in the absence of a predetermined plan to engage a human rights-based and/or direct-action strategy, such tactical processes may take place as a reaction to other galvanizing (usually external) factors.

SPH often involves “everyday forms of resistance.”[9] Naturally, the authors of this resistance justify their actions with corresponding claims, when required. In such situations, SPH actors typically will stake their claims on the moral principle of need, but may also substantiate this principle with a claim to a “right” that would find its source and authority in applicable law. Such claims typically follow a process in which the community members come to agreement on goals and strategies, and after a deliberate, awareness-raising intervention involving allies specialized in human rights and the law.

The SPH experiences that lay claim to particular rights are typically those involving actors already operating within the human rights framework and using tools of argument that invoke law, including universal norms found in international human rights treaties that the State has ratified. These are likely specialists who originate elsewhere, but have developed alliances with the community. Whether or not such actors introduce the language of human rights norms at some early point, most mature SPH experiences, like most social movements in general, find it opportune to socialize the language of rights and freedoms at some point in their course. These rights claims are most sustainable when grounded in already existing (i.e., codified) rights, rather than claiming new rights without a legal basis. That would leave the claim vulnerable to contention by adversaries who would appear to have the more-credible to having the law on their side.

Nonetheless, we find experiences in which social movements, including SPH actors, have socialized the language of claimed rights with rhetorical effect, but without substantiating the claim with an existing code or recognized obligation binding the targeted institutions and authorities. Purely rhetorical use of rights language without an authoritative legal base could be tactically hazardous where SPH actors claim an actual right without the capacity to identify the right’s (1) legally binding source, (2) normative content, (3) corresponding obligations and (4) duty holders. SPH actors similarly could lose their public claim to a rhetorical “right” that cannot be found in any legal instrument, such as in claims to “a right to the city.”

Either scenario—inability to substantiate a right, or claiming a value to be a “right” without a corresponding legal basis—weakens the movement’s standing before the authorities and the wider public. Moreover, demonstrating the elements of an actual right is required before asserting that a “violation” has occurred. These hazards can be eliminated by strategic capacity building, not least by networking beyond the community to pool human resources (lawyers, activists, NGOs, political parties, etc.) and (1) transfer rights-based argumentation skills to those authoring the SPH actions, or (2) otherwise attribute those arguments to the SPH actors through a division of labor among the community actors and the other parties allied with them.

This articulation is most effectively combined with the practical and technical problem-solving arguments appropriate to the local needs and specificity. As demonstrated in numerous local examples, the strategy that combines “needs-based” and “rights-based” approaches reinforces the meaning and values to both. Thus, such SPH experiences illustrate the artificiality of resource wastage in maintaining a false dichotomy of separating “needs” and “rights,” particularly as they share a moral genesis in the notion of common human dignity.

This is also not to say that the SPH process and actors do not already possess the essential raw material effectively to claim the fulfillment of their needs as a right. The false dichotomy between needs and rights typically arises rather from the insistence of “specialists” vested in one or another approach, but ostensibly allied with the struggling communities. One of the enlightening lessons of SPH processes is that the needs to be fulfilled and the rights claimed as SPH goals are organically linked with the legally specified elements of the human right to adequate housing and the people’s goals of self-development.

The argumentation that finds its way into the human rights literature, including the legal literature, is inspired by these human struggles and the striking consistency of their claims across borders and time. SPH movements are, by nature, problem-solving initiatives, if also seeking to solve daily problems in alternative ways; i.e., without the dominance of outside institutions. Culminating centuries of cumulative human experience in the form of multilateral agreements, human rights norms also were developed and codified as imperatives for remedying and preventing problems. Upon review of the housing rights imperatives relating to SPH movements and their claims, the principal difference between the two appears to lie only in that the human rights law is already binding, even though it may be written in language intended for broadly applicability. The SPH movement provides the needed specificity for local application of the already-existing housing rights obligations and, in turn, contributes to the further elaboration of the human right’s content and the meaning of the corresponding obligations of duty holders.

Common objectives:

Applying the human rights framework finds common cause with the SPH experience in that they both seek:

1. A redistribution of social goods and opportunities by the “constant improvement of living conditions”[10] and “progressive realization”[11] of those improvements;
2. Reclaiming political space from the State and other dominant factors by implementing concepts of local self-determination[12] and the right to participation[13] as full citizens;
3. Conduct of governing authorities and institutions consistent with 1 and 2.

Within these broad parameters is the constantly developing specificity as to what the State and other parties (including corporations) are to do to achieve these broad goals. Social movements and, in particular, SPH movements constitute one important source of human rights and HRAH through their priority-setting and implementation. Regardless of whether the SPH actors are vociferously asserting claims, or quietly justifying their actions based on the moral principle of human necessity (in order to conduct a dignified life), their words and actions have become the very content of the human right to adequate housing and its jurisprudential guidance. These claims and assertions take on practical specificity in SPH experiences compiled from across the Habitat International Coalition.

The Longos Community struggle against force displacements, in Manila, finds the Urban Poor Association (UPA), a local NGO, “strengthening the people’s determination to assert their rights and interests.”[14] The case study revels that the community and the UPA deliberately have worked for “the defense of tenants’ rights.”[15] In Peru during the intercensus period of 1983–91, most of the 121,249 homes were built by the “social sector,”[16] and, in 1993–96, no fewer than 700 informal settlements grew up in Lima alone.[17] Five years later, in the context of the UN Habitat global campaigns on secure tenure and urban governance, and coinciding with a country mission to Peru by the UN Special Rapporteur on adequate housing,[18] a popular campaign asserted “the right to descent housing for all.” The campaign has had far-reaching goals, including constitutional reform to restore “the right to housing.”[19]

Mexico City’s “Unión de Palo Alto” cooperative movement has represented an urban struggle to remain in the city as a matter of “right.” In articulating that claim, the inhabitants also asserted their “right to land,” even though they apparently did not invoke the codified rights needed to substantiate it.[20] Nonetheless, their claim remains a “popular source” that gives meaning to land as an essential housing resources, an element of “environmental goods” already codified as an entitlement under the human right to adequate housing, and land as an “emerging right.”

In the case of Los Cortaderos, in Córdoba, Argentina, SPH involved the Unión de Organizaciones de Base por los Derechos Sociales (UDBDS). Their experience demonstrated the claim to rights, as implied in the protagonist NGO’s name, but also generated a process of denunciation (of “violations”) and building capacity to enable people to know their rights and obligations.[21]

Such experiences as the “Coopération Féminin pour la Protection de l’Environnement,” in Bamako, Mali, cited rights in the most general terms, but identified their efforts to provide clean water and sanitation for the region as an act in defense of the “rights of the population.”[22] In the case of the Revolving Credit Fund for Financing Residential Cooperatives in Rio de Janeiro (Brazil), the Fondacão Centro da Defesa dos Dereitos Humanos Bento Runião applied the tools of financial affordability to ensure the inhabitants’ “exercise of rights.”[23] The SPH experience of “Programa de Desarrollo Urbano y Habitacional en la Reserva Territorial de Xalapa” (Mexico), the community advanced its human right to housing by referring to its source as a specific provision in the Mexican Constitution.[24]

Likewise, the language of the SPH movement in Barrio Santa Rosa de Lima, Santa Fé (Argentina) claimed a bundle of rights relevant to their cause, in particular rights to property and secure tenure for the inhabitants of Barrio Santa Rosa de Lima.[25] Likewise, the case of “Programa de Desarollo Local y Communitario Tá Rebocado,” in Salvador de Bahía (Brazil) involved inhabitants rallying in the collective claim to a “right to property”[26]

Sawada Village, in Upper Egypt, exemplified the struggle of impoverished communities to achieve recognition of their right to remain. Whereas many families had been residing on State lands out of desperation, legal petitions necessarily paralleled microcredit projects in exercise of the claim to secure tenure, an element of the human right to adequate housing.[27]

Land as a public good, as well as a subject of traditional tenure rights has been part of the struggle that the Regional Council of Unrecognized Villages in the Naqab/Negev (Israel) has carried on for the past decade. Their campaign to sustain and develop their habitat has concentrated on the claim to equal citizenship rights and State obligations to meet minimal governance criteria.[28] The State, in this case, has failed so fundamentally that it has negative consequences for the State’s claims to democracy by establishing a separate “Jewish nationality” as the criterion for discriminatory treatment in services and dispossession of the indigenous people.

In their case, the struggle is not only about these specific rights and elements of the human right to adequate housing, but also invokes the States treaty obligation to apply nondiscrimination as a principle of application. While this grave pattern of violations has no relief in ideologized courts of the State, their case before the international treaty bodies became the source of legal recognition for their rights, including the “emerging right” to land.[29]

The habitability of the living environment was a central concern to the inhabitants and the service-providing Coptic Evangelical Organization for Social Services (CEOSS) in Old Cairo. The case of “Al-Fustat Potters Village Initiative to Upgrade Coptic Cairo” focused on health and a healthy environment as rights, and not merely the subject of a charitable intervention. The record of the experience invokes the local Environmental Protection Law No. 4 (1994) as a tool for upgrading the ancient neighbourhood. Meanwhile, the UN Committee on Economic, Social and Cultural Rights reviewed and denounced the forced evictions that the Cairo Governorate previously had carried out against the inhabitants of al-Fustat as a violation of Egypt’s human rights treaty obligations.[30]

The social production of habitat by the Sons of Dhana Valley, in Jordan, is no less than an exercise in the right to local self-determination as a means toward realizing the right to adequate housing, among other economic, social and cultural rights. The local community insisted on maintaining natural environment goods and services locally in a way that served larger social-development needs.[31] In that SPH movement case, the community did not resort to human rights treaty arguments, as such, at least not explicitly identifying the specific rights. However, they drew on rights embodied in custom and tested these as a guarantee of the respect, protection and fulfilment of rights with clarifying local specificity.

The Safat al-Laban neighbourhood of Cairo struggled, negotiated and, ultimately, invested their own material resources in order to fulfil their housing rights entitlement of access to potable water and sanitation as public goods and services. The State and, in this case, local authorities bear the obligation to uphold that entitlement and right, as articulated by the Egyptian Center for Housing Rights. This claim formed one of the tools of negotiation with the local authorities that led to a practical solution to problems of rights enforcement, which is the protagonist ECHR’s specialization.[32]

Whether or not a SPH movement articulates the claim to rights, as noted, is often a matter of its evolution. However, the denial of rights to social goods and services appears to be a typical motivator of SPH movements seeking alternative development, including urban migration. In prerevolutionary and postrevolutionary Iran, for example, SPH movements have been traced to neglect of rural investment in services; a 1984 survey of Hamadan and Isfahan provinces found that 85% of poor migrants had left their villages because of low income and inadequate access to water and land.[33]

 Town Planning and Democracy in Paris is an ambitious program that has sprung from the claim to the indisputable “right to participate” and, therefore, specifically to influence “the planning and management of the urban surroundings.”[34] Likewise, the language of the SPH movement in Barrio Santa Rosa de Lima, Santa Fé, Argentina, also incorporated concepts of citizenship and the corresponding right to full participation.[35]

 In a contrasting situation, the popular claim of the right to participation has parallel meaning and motivation. A case entitled “Participation in Community Service Provision in Post-war Angola” recounts the provision of water and sanitation for poor urban communities, where over 80% of these residents have no clear legal title to the land they occupy and pay extremely high prices for inadequate basic services. One of the great challenges to postconflict development in Angola is in the promotion of socioeconomic inclusion such that guarantees the urban poor’s rights and provides opportunities for civic leadership to emerge.[36] 

Even in context of urban popular agriculture, for example, the “Nairobi and Environs Food, Agriculture and Livestock Forum (NEFSALF)” is pursuing the idea of political freedom as broadly conceived. The community seeks to develop their local habitat while claiming civil rights and opportunities to determine who shall govern them and on what principles.[37]

The end of military dictatorship in Argentina saw the rapid growth in the social production of habitat. Squatters in Buenos Aires interpreted democratization values by invoking a “right to settle.” While such a rights claim has antecedents in international applying to refugees and displaced persons, as well as to the human right to freedom of movement, it reflected also the local “regulation plan” adopted by ordinance of the local legislative authority, but never actually implemented.[38]

Owing to the particular and prolonged nature of the struggles in South Africa, the people’s housing process in “The Case of Vosloorus Extension 28” provides an example of SPH that finds the community claiming a range of housing and habitat values as “rights,” and rooting those claims in the various local, regional and international human rights instruments. The protagonist NGO, Planact, has facilitated the urban poor’s access to adequate housing, helping them acquire access to housing subsidies, planning and implementation of the people’s housing process as practical means of supporting the habitable environment agenda and, thus, fulfillment of the human right to adequate housing.[39] Moreover, while invoking South Africa’s democratic Constitution as a source of the human right to adequate housing and the State’s corresponding obligations,[40] Planact also has articulate the claim for the urban poor to their equal rights to participation in decision making, gender equality and children’s inheritance rights.

SPH and the indivisibility of rights:

Some SPH movements already embody simultaneous claims to a variety of rights. By applying the needs of a community in a construct of claims, it becomes clear that the consequences to one human right inevitably affect other rights and values. As we have seen already in the cases of Paris, Buenos Aires and Nairobi, the claim to the human right to adequate housing invokes also the right to participation, which rights must be fulfilled simultaneously. In other experiences of struggle to meet the needs of a social segment, housing rights may be combined with a broad-based agenda of claims to the gamut rights applying to children, women or minorities.

 

A campaign to provide adequate and affordable shelter through housing cooperatives in Dar es Salaam and Dodoma, Tanzania is a case in point. The focus of Women’s Advancement Trust, the activist organization in this case, sought to implement the right to gender equality as well as women’s specific rights to land and housing.[41] The Tá Rebocado local and community development program (Salvador de Bahia, Brazil) perceived housing, education and work as inter-related rights in their struggle, as well as special application of these rights and other protections for children.[42] In Egypt, the initiative to upgrade the living conditions of Al-Fustat Potters Village invoked not only the rights to health and a healthy environment in connection with the human right to adequate housing, the community and their partner NGO articulated their efforts as serving the people’s right to work.[43] The Jordanian Dhana Valley SPH experience began with an initiative to self-manage the natural environment, but expanded to a more-holistic vision involving the bundle of rights that constitute the right to development.[44]

SPH can draw the participant into a dilemma of competing rights. While urban poor in Manila were claiming their rights to adequate housing, landlords contended by claiming their own “right to evict” based on a narrow reading of the local law without the necessary qualifications arising from human rights.[45] This compelled the community to develop counterarguments with legal authority to assert a superior right to remain and enjoy secure tenure, an entitlement of the human right to adequate housing.

 The case in two Palestinian refugee camps in Syria emphasizes a specific context of SPH and rights application to long-displaced communities and is complex in a different way: The refugees are claiming rights to remedy for criminal acts of dispossession. However, the unique dynamic between rights claims pits these indisputable but long-denied rights to return, restitution and compensation against the immediate human need of everyone for adequate housing now. The delicate compromise among rights was achieved to multilateral satisfaction of concerned parties, however temporarily. Another level of basic rights awaits fulfilment.

Reflections in the legal basis of the rights that the SPH movements have claimed

The first time in which a multilateral agreement referred to a “human right” to adequate housing was in the 1948 Universal Declaration of Human Rights. Its Article 25 recognizes the principle that "Everyone has the right to a standard of living adequate for health and well-being…including food, clothing, housing, medical care and necessary social services." However, as a declaration and not a treaty, this recognition of principle does not carry enforceable obligations on States.

 The first binding legal instrument to guarantee the right to housing was the International Convention on Elimination of All Forms of Racial Discrimination, adopted by the UN General Assembly in 1965. It codified the right housing in Article 5.e (iii), such that

States parties undertake to prohibit and 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, notably in the enjoyment of the following rights:...(e) Economic, Social and Cultural rights in particular:…(iii) The right to housing.”

In 1966, the General Assembly adopted and opened for ratification the fundamental Covenants covering the range of human rights and corresponding State obligations. Currently, 148 States parties to the Covenant on Economic, Social and Cultural Rights now "recognize the right of everyone to an adequate standard of living...including food, clothing and housing" (ICESCR, article 11[1]).

 Standing alone, this passage does not provide sufficient guidance as to what the right contains, or what is entailed in the State’s fulfillment of obligations to respect, protect and defend HRAH. Therefore, the treaty-monitoring body authorized for has developed the legal guidance for States parties, based in the problems and solutions arising from the international jurisprudence under the Covenant. In defining the basic elements of “adequate housing” as a human right, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 4,[46] which applies generally to each and every State party to the Covenant. In a measure to define the legal specificity of both the right and the State’s corresponding obligations, the Committee’s GC 4 determined that all of seven elements must be present and satisfied in order for housing to be considered as adequate in meeting the requirements of the treaty:

(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…;

(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…;

(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.

(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…;

(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…

It is important for local SPH activists to know that the contents of the General Comment No. 4 were not only identified through the “constructive dialogs” between the treaty-monitoring Committee and State parties to the Covenant, but also with nongovermental parties. The main actor drafting and promoting the General Comment was the Habitat International Coalition, acting in its consultative status with the United Nations and in support of the Committee’s work. HIC had channeled its pool of experience and the language of the SPH and social movement experience into the criteria that ultimately became legal findings.

One purpose of the drafting, promotion and adoption of the General Comment was to provide a tool that would serve local communities as much as it would serve the Committee, for its monitoring part, and the States parties, for their part as the ultimate implementers of the Covenant. Therefore, the development and specification of HRAH in law had a mutual and reciprocal relationship with SPH and social movements long before its elaboration as a legal instrument, but that relationship between people and law was—and remains—symbiotic: it is people’s experiences and expressed needs that inform the specificity found in the human rights law, and human rights law takes on just as much meaning and authority as the people themselves give it by utilizing it.

In that reciprocal and symbiotic involvement of people and law, it has since become clear that addition to these elements, other related and separately codified human rights are integral to the respect, protection and fulfillment of the adequate housing, especially in certain circumstances of application. This calls for inclusion of the “congruent” rights to:

• Information;

• Education and capacity building;

• Participation;

• Freedom of association;

• Self-expression;

• Refugee and displaced persons’ rights to resettlement, nonrefoulement, restitution, compensation and return;

• Privacy and

• Security of person.

Applying these additional human rights law criteria of the human right to adequate housing is intended to ensure that “every man, woman, child and youth attain and sustain a secure home and community within which to live in peace and dignity.” Therefore, if we were to combine the legal specificity available in the General Comment No. 4 with the other rights naturally affected in the housing sphere, these form a more-complete set of criteria. SPH and other social movement experiences reinforce these claims as our common human rights framework. By their own contribution, the people’s agency has established not only the moral principle of necessity, but also has contributed substantively to developing the binding authority of law.

Again, according to the legal theory and logic of implementation, housing conditions that fail to meet any one of these legally established elements or congruent rights, consequently, may constitute a violation of the human right to adequate housing, and, potentially, other human rights. 

State obligations

All human rights carry corresponding obligations on the State, the legal personality bearing the obligation by virtue of its being a party to an international human rights treaty. The legal literature, in particular the General Comments that the treaty-monitoring bodies issue, establish three basic levels of obligation; therefore, what the State is to do includes:

To respect the right: that is, to avoid violating the right by its own actions or those of its agents;

To protect the right: that is, to ensure that persons are protected from infringements on their rights by other parties;

To fulfill the right: that is, to take steps to ensure the constant improvement of living conditions, while also promoting the right among its beneficiaries, monitoring implementation and reporting on implementation to the treaty-monitoring bodies.

All human rights also bring with them obligations on the State to regulate practice in its jurisdiction or territory of effective control in particular way. The most general criteria are the “over-riding principles” for the implementation of a treaty. These principles, all found in the first three articles of the human rights Covenants and Conventions, address how a State is expected to implement its obligations, including to respect, protect and fulfill the human right to adequate housing. Therefore, the State must apply its obligations by practice of:

§      Self-determination

§      Nondiscrimination

§      Gender equality

§      Rule of law

§      International cooperation

§      Progressive realization/nonretrogression

 

(Each of these elements and over-riding principles of application are explained further in the HLRN Housing and Land Rights Toolkit. See: http://toolkit.hlrn.org/index.html.)

 

The elements of the human right to adequate housing are, at the same time, form core obligations of the State party to respect, protect and fulfill, to which each of the over-riding principles of application indicate imperative methods. General Comment No. 4 embodies the most developed single legal source laying out obligations of the State, each by its constituent element:

(a) Legal security of tenure…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…[States should ensure that a]ll beneficiaries of the right to adequate housing…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…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 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…The Committee encourages States parties to comprehensively apply the Health Principles of Housing 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…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. [States parties have to ensure that] adequate housing…be in a location [that] 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…Activities geared toward 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.

State Obligations and SPH:

As seen in the examples reviewed above, SPH movements seek the constant improvement of living conditions consistent with many of the elements of housing adequacy as defined in human rights law. In this respect, SPH movements function consistently with the obligations of the State to respect, protect and fulfill the human right to adequate housing, as well as other related (“congruent”) rights considered as forming the “normative content” of HRAH. In light of the content and purpose of the applicable human rights, the essential distinction between SPH activities and State obligations lies primarily in the fact of SPH’s popular initiative. Otherwise, the State’s HRAH obligations are both prior to, and coterminous with the SPH movements. 

A reading of the relevant treaties clarifies what such obligations mean in practice. Article 11(1) of ICESCR speaks of the right to an adequate standard of living, and Article 2(1) of the Covenant obliges each State party to take the necessary steps to the maximum of its available resources. A State, therefore, must demonstrate willingness to use the maximum of its available resources for the realization of the human right to adequate housing. If resource constraints render it impossible for a State party to comply fully with its covenanted obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. The State also has to demonstrate that it has availed itself to the mechanisms of international cooperation, as required under the ICESCR’s Articles 1.2 and 2.1, as well as Article 22. 

The SPH process brings with it contributions of social capital and local creativity in problems solving, including innovative techniques of planning construction and materials. That does not mean that SPH replaces the State’s binding role as facilitator. Nor does it mean that SPH releases the State from binding obligations so that it can withdraw from service provision, as neoliberal policies propose.[47] On the contrary, the State continues to bear the same obligations; however, the SPH process can become a facilitating context in which to implement those obligations. However, SPH can present opportunities for the State to implement its treaty obligations more economically, enabling the SPH process by supporting popular plans and objectives, and coordinating supportive functions and facilities.

The legally defined elements of the human right provide further specificity as to what those supportive and coordinating functions would entail. For example, at the level of obligations to respect HRAH, State institutions and officials should abstain from actions that would obstruct the SPH process, in particular, forced evictions. Any limitations imposed must be "determined by law only insofar 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."[48]

At the level of protection, State obligations in the SPH process include the provision of safeguards and assurances of freedom from unnecessary and disproportionate use of force, public-service fee increases, monopoly control of building materials and other impediments to the people’s process. The State also bears the obligation to prosecute violators and ensure effective relief and remedy for victims.

At the fulfillment level of obligations, the State possesses unique capacities to ensure access to public goods and services, verifying standards of habitability in order to ensure public safety, ensure wide-area compatibility of infrastructure networks, etc. Therefore, it also has the corresponding obligation to apply these capacities, as well as conduct all levels of obligation, in light of the six over-riding principles of self-determination, nondiscrimination, gender equality, rule of law, international cooperation and progressive realization/nonregressivity.

What constitutes a violation?

Just as the obligations of the State assume three levels: to respect, protect and fulfill the human right to adequate housing, the violations of the right also correspond to these levels of an obligation as it relates to each of the elements of HRAH and of the congruent rights. A violation could arise from the State’s failure and/or refusal to apply the over-riding principles of self-determination, nondiscrimination, gender equality, rule of law, international cooperation and progressive realization/nonregressivity.

When the normative content of the human right to adequate housing is applied to the obligations of States parties, a process is set in motion that makes it possible to identify violations of the right. A violation could involve either an action or an omission. It is not necessary to prove specific intent on the part of the State or its representative in order to determine that violation has occurred. It is sufficient to demonstrate that an action or omission has had a negative impact on the enjoyment of the human right. Therefore, the staring point for determining a violation is in convey the experience of the victim. Then it is possible to identify the duty holder(s). However, in order to determine a violation and identify a duty holder, it is important to distinguish which type of violation (by action or omission) and, specifically, which right and/or over-riding principle of application has been breached in the process.

In order to demonstrate compliance with their general and specific obligations, States have to establish that they have taken the necessary and feasible steps toward realizing the human right to adequate housing, including respect, protection and fulfillment of the normative elements and congruent rights identified above. In accordance with international law, a failure to act in good faith to take such steps amounts to a violation of the right. It should be stressed that political processes, domestic legislation, scarcity of resources, or agreements with other parties do not absolve a State from its obligations to ensure the progressive realization of economic, social and cultural rights.[49]

In determining which actions or omissions amount to a violation of the right to adequate housing, it is important also to distinguish between the inability from the unwillingness of a State party to comply with its obligations in relation to the human right to adequate housing. This follows from Article 11(1), which speaks of the right to an adequate standard of living, as well as from article 2(1) of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources. A State that is unwilling to use the maximum of its available resources for the realization of the human right to adequate housing is in violation of its obligations under the Covenant. If resource constraints render it impossible for a State party to comply fully with its relevant Covenant obligations; that is, a resource-poor State still could be in violation if it cannot demonstrate that it has availed itself to the mechanisms of international cooperation, as required under the ICESCR’s Articles 1.2, 2.1 and 22.

Violations of the right to adequate housing can occur through acts of commission, the direct actions of States parties or other entities insufficiently regulated by States. Violations include, for example, the adoption of retrogressive measures incompatible with the obligations (outlined in General Comments Nos. 4 and 7), the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to adequate housing, or the adoption of legislation or policies that are manifestly incompatible with pre-existing domestic or international legal obligations to uphold the right to adequate housing.

Violations through acts of omission include the failure to take appropriate steps toward the full realization of everyone`s right to adequate housing, the failure to have a national housing policy, and the failure to enforce relevant laws, including the domestication and enforcement of international treaty obligations to respect, protect and fulfill the right.

While it is not possible to specify a complete list of potential violations, it may be helpful to provide some typical examples relating to the levels of obligations and emanating from the General Comments and the jurisprudence of the Covenants and Conventions:

1.     Violations of the obligation to respect follow from the State party’s interference with the right to adequate housing. This includes inter alia:

(i) “arbitrary or unlawful interference” with one’s home[50];

(ii) discriminatory or unaffordable increases in the price of housing and related public utilities;

(iii) pollution of the living environment;

(iv) arbitrary, unlawful and punitive conduct of forced eviction.

 

2.                  Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to adequate housing by third parties, including individuals, groups, corporations and other entities as well as agents acting under their authority. This includes inter alia:

(i) failure to enact or enforce laws to prevent deterioration of housing and living conditions and/or protect against undue eviction;

(ii) failure to regulate and control housing and public service providers effectively to ensure adequate quality and affordability of housing;

(iii) failure to protect housing from harmful interference, damage and destruction;

(iv) denial of “effective remedy” for persons whose housing rights have been violated.[51]

 

3.     Violations of the obligation to fulfill occur through the failure of States parties to take all necessary steps to ensure the realization of the right to adequate housing. Examples includes inter alia:

(i) failure to adopt or implement a national housing policy designed to ensure the human right to adequate housing for everyone;

(ii) insufficient expenditure or misallocation of public resources that results in the nonenjoyment of the right to adequate housing by individuals or groups, particularly the vulnerable or marginalized;

(iii) the failure to monitor the realization of the right to adequate housing at the national level, for example by identifying right-to-housing indicators and benchmarks;

(iv) the failure to take measures to reduce the inequitable distribution of housing and related services;

(v) failure to adopt mechanisms for emergency housing relief in cases of natural or human-made disaster;

(vi) failure to ensure that the minimum essential level of the right is enjoyed by everyone;

(vii) failure of a State to take into account its international legal obligations regarding the right to housing when entering into agreements with other States or with international organizations;

(viii) widespread homelessness within the State;

(ix) denial of participation in matters affecting living conditions;

(x) failure of the State to ensure that housing and public service providers, including private parties, meet the minimum standards of progressive realization and avoid declines in the quality, quantity or affordability of housing-related materials, goods, infrastructure and services;

(xi) failure to provide the greatest possible security of tenure to occupiers of houses and land;

(xii) failure to enforce the obligation upon the “competent authorities [to] enforce [effective] remedies when granted.”[52]

Violations and SPH:

In the particular context of SPH, the potential violations of the constituent human rights, including the human right to adequate housing, could involve committing acts that impede the SPH process. Measures than prevent, deny or repress the inhabitants’ rights to orderly association, participation and free expression in the physical development process would violate the obligation to respect the human right to adequate housing. Most forced evictions carried out to obstruct the SPH process very likely would constitute a gross violation of inhabitants’ rights and follow a series of breach of State obligations. Some forms of SPH are actually responses to prior breaches of State obligations, such as a government’s failure to regulate the housing market to ensure the availability of needed low-cost housing, or neglecting public investment in rural areas such that compels migration in search of survival and development. It is not possible to provide an exhaustive inventory of possible actions or omissions that violate the human rights to housing and, coincidentally, impede SPH. Nonetheless, the framework of the human right to adequate housing brings some illustrative scenarios to mind.

 

The State’s actions or omissions could breach the obligation to respect the human right to adequate housing by actions or omissions that impede SPH processes by:

§         failing to enforce laws to prevent deterioration of housing and living conditions and/or protect against undue eviction;

§         not requiring that housing and public service providers effectively ensure adequate quality and affordable housing;

§         omitting to ensure legally secure tenure for inhabitants of socially produced housing;

§         the active prevention of self-determination, the practice of discrimination; and/or

§         denying “effective remedy” for persons whose housing rights have been violated.[53]

 

Likely scenarios in which State actions or omissions cause it to fail at meeting its minimum obligations would include:

§         failure to protect socially produced housing from harmful interference, damage and destruction; and/or

§         inordinate delays in enacting legislation needed to domesticate HRAH in the domestic legal system.

Official actions in the process of SPH could constitute violations of State obligations under treaty to fulfill the human right to adequate housing if those actions arise from:

§         denial of participation in matters affecting living conditions;

§         promotion of global policies that seek to withhold adequate and affordable access to housing and public services in any country; or

§         the reduction of public resources dedicated to supporting SPH such that leads to a decline in living conditions.

Official omissions in the process of SPH could constitute violations of State obligations under treaty “to fulfill” the human right to adequate housing if those omissions involved an absence of an adequate housing policy that enables SPH, including:

§         nonimplementation of policies, legal standards or programs intended to combat discrimination or enable self-determination;

§         failure to enforce minimum standards of quality and access to building materials and public services for SPH participants;

§         official inaction in the face of needs and opportunities to ensure legally secure tenure for occupants of housing and land who are vulnerable to dispossession.

Strategic Considerations:

Although the practice of SPH and some measures to respect, protect and fulfill HRAH are collinear, coterminous and fully coincidental, some distinctions are important for strategic consideration. It is certain that the core of both the human right and SPH is common: the human drive to “gain and sustain a secure place and community in which to live in peace and dignity.”[54] However, heretofore divergent processes and tactical approaches relating to SPH and human rights-based initiatives have revealed an array of choices to be made. These characteristics reflect the predominantly action-oriented approach of SPH, as distinct from the predominantly verbally argumentative approach of human rights activism. Just as familiarity breeds contempt, as the saying goes, classical approaches that emphasize physical upgrading as distinct from housing rights tend to subordinate the natural complementarity of both.

Social movements as SPH	tactical action (“quiet encroachment”[55] or “contentious events”[56]), having popular authority
Human rights (HRAH)	philosophical, conceptual, comparative, having legal authority

Apart from the putative distinctions in tactical approach and style, a view to the substantive values and the principal goals of the both approaches have revealed an even greater number of commonalities of purpose. For example, both SPH processes and human rights law assert collective claims and group rights to adequate housing and development. Both are the product of historical processes that require also a historic understanding as a matter of strategy. SPH and human rights promotion benefit from comparative analysis, particularly in devising ways to ensure that authorities comply with claims. Both HRAH advocates and SPH protagonists serve the same community of beneficiaries by posing practical solutions to structural problems. Therefore, it is natural that the continuing experience with SPH and development of HRAH norms evolve into a convergence of concepts, tools, techniques and actors.

Some common features of SPH and HRAH

Involve collective claims and claimants[57]

Require historical understanding[58]

Are enhanced by comparative analysis for effective action/implementation

Ultimately direct claims at local and central authorities (duty holders)

Require a pool of diverse and complementary human resources, skills and functions

The beneficiaries are the same

Pose practical solutions

Undergo constant development, including by convergence[59]

The literature on social movements—whether engaged in SPH or otherwise—refers to actions and tensions with the authorities as “contentious politics”[60] or “contentions events.” Also common to the process of SPH are the avoidance strategies and discrete actions described as “quiet encroachment.” Especially in the latter category, as already noted, it is not axiomatic that SPH movements and actors advance “rights” claims, unless and until forced by external opportunities or threats.

The selective use of human rights and housing rights language follows strategic and tactical considerations, as in the examples arising from HIC’s experience. The protagonists of Urbanización Nueva Democracia (Las Farias, Maracaibo, Zulia, Venezuela), described defending rights and obligations as a “tool/instrument” of struggle.[61] The Regional Council of Unrecognized Villages in Israel/Palestine case demonstrated how a social movement exposed a pattern of discrimination and its material consequences through the language of claims for equal treatment and rights of citizenship. These values became the moral basis that has mobilized local and international solidarity with positive effect.[62]

The Dhana Valley SPH experience, in Jordan, set out a program to realize a bundle of rights that actually enables the protagonists and helps the wider public to understand the content of the human right to development.[63] However, the Sons of Dhana Valley identified low awareness of rights as an early impediment to SPH objectives. In the course of the experience, however, the local organizers managed to translate this shortcoming into an opportunity and, eventually, “awareness of rights” became a deliberate SPH outcome and asset.

 

In that particular case, given its rural and historical context, the SPH movement tested and proved local land-use custom-cum-law as a guarantee of the respect, protection and fulfilment of rights with local specificity. Conversely, the Women’s Advancement Trust (Dar es Salaam and Dodoma, Tanzania) sought to implement the right to gender equality as well as women’s specific rights to land and housing as a universal rights and subject of international treaty obligation, despite local law and custom that permitted the denial of those same rights.[64]

SPH experiences also find human rights language and awareness as means of achieving the great intangible value of empowerment, a moral quality essential to self-motivation. Planact, in South Africa, thus reported that it was “encouraged that the community has ultimately taken charge of the process and continues to realise their housing rights.” [65

SPH experiences also provide examples of human rights claims as a tactic that, if not grounded in actual law, could backfire. The participants in the “Movimiento de Ocupantes y Inquilinos” (Buenos Aires) and Cooperativa de Vivienda “Unión de Palo Alto” (Mexico City) made rhetorical use of claims to a “right to the city,”[66] but apparently did not articulate what was meant by that noncodified claim.[67] If challenged in some contentious event at the time, the claim that was central to the movement’s rallying cry could quickly unravel. However, the framework of existing rights, especially the human right to adequate housing and Argentina’s corresponding treaty obligations remain a potential grounding for such claims, if properly put to the task.[68] However, such a confrontation could lead to a loss of forensic ground in the public theater and require a tactical adjustment. In that hypothetical scenario, the lesson of needed human rights capacity building becomes clear.

Conclusion: About success

SPH movement experience, values and language form the organic base of the language of legal specificity required to guide duty holders (States) in implementing their obligations to respect, protect and fulfil the human right to adequate housing. The convergence of the HRAH approach and SPH activism is (1) organic, in that they share the same values; (2) historic, because they share a similar trajectory over time and comparative analysis; (3) strategic, in that they offer reciprocal and tactical advantages from which to draw at certain opportunities; and (4) a recipe for success available to States and policy makers seeking to resolve housing and national development problems, while also enhancing the legitimacy of their governance.

Admittedly, much of the critical human rights and SPH language refers to the violations, shortcomings and ultimate failures of authority institutions and officials. However, imbedded in the message also are the guidelines for certain success, and success in a pursuit that is possible only through consultation with the people who are the very subject of the policies, programs, projects, institutions and budgets concerned. That consultation among the various concerned parties depends on a common language that is an objective of the global SPH project of HIC.

One urgent and challenging opportunity to achieve a common language is that posed by the ideological trend of neoliberal economics and economic globalization. Absent a common language incorporating the human rights values and obligations, SPH experiences nowadays may find local communities trapped by their own argument. They may insist on their “right” to autonomous development, apart from the failed institutions of State. Given the neoliberal tendency of States to withdraw from their covenanted responsibilities in the sphere of public services, governments may “call the bluff” of SPH movements and abandon them to their own devices, without providing the requisite coordination and services that ensure effective SPH. Applying the framework of HRAH and corresponding State obligations, however, counterposes the dismissive and short-sighted neoliberal impulse of the globalized State. Reasserting the prior obligations of States and governments to respect, promote and fulfil HRAH in the SPH context emerges as the common task of social movements and SPH movements, in particular.

These State obligations also serve public officials and institutions seeking ways to maintain a measure of local legitimacy with the national society and to restore a degree of State sovereignty required to develop local solutions. These official objectives are particularly urgent, while the centrifugal force of globalization increasingly exports sovereignty to so many external parties. The State’s supportive, official engagement with SPH contributes to restoring practical partnership between authorities and the people. The experiences of Tablita Market, in Cairo, involved an initial confrontation with initially resistant planners from the Central Cairo Authority, which ultimately recognized the local inhabitants’ alternative design and their right to remain.[69] An alternative development plan of Sakkardara, in Nagpur, India,[70] has become a model for others to emulate across the Asian continent. Both cases give testimony to the potential of popular alternative visions producing a basis for negotiation and official support for SPH movements. They have exemplified the kind of SPH formula that can result in cooperation between communities and local authorities, and lead to success for both sides.

Therefore, the convergence of HRAH and SPH is not merely conceptual and abstract, but ultimately timely, practical and reciprocal to the ultimately benefit of people who are in most need. This is the essence of harmonizing SPH and HRAH movements. Potentially, this exercise will contribute to the capacity, argumentation and practical solidarity of all concerned, including State officials, to succeed in our collective tasks of improving living conditions and advancing human civilization. Another world is, therefore, possible

Annex

HRAH Questions for SPH Cases

The following questions form a line of inquiry in SPH cases in which those monitors documenting the experience take full account of the legal framework and HRAH considerations for comparative and strategic purposes.

Using the HRAH framework

11. Did any of the actors in this case explicitly invoke any human right, including their HRAH? Explain.

 

12. On the basis of Constitutional provisions? Explain.

 

13. On the basis of local legislation? Explain.

 

14. On the basis of international treaty law? Explain.

 

15. What legal procedures were taken and which legal remedies were sought?

 

What was the outcome?

 

17. Did any of the actors in this case use international or regional mechanisms to seek implementation of rights?

 

What was the outcome?