The right to housing should not be interpreted in a narrow or restrictive sense which equates it with the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather the norm should be seen as the right to live somewhere in security, peace and dignity.2 As a reflection of the diverse manner by which the right to housing has been characterised under international legal norms, a range of distinct terms are often used interchangeably to invoke the position of housing as a core issue of human rights law. The terminology most frequently associated with these assertions include, inter alia:
• the human right to adequate housing;
• the right to housing;
• the right to adequate housing;
• housing rights;
• the right to one’s home;
• the right to shelter;
• land rights;
• livelihood rights; and
• the right to the city.
Occasionally, the right to property or property rights are mistakenly confounded with the right to housing or housing rights. Although there are certain areas of overlap between these two areas, this relationship is a complex one comprised of both distinctions and similarities. Indicative of the specific
1. United Nations Centre for Human Rights, 1996.
2. General Comment No. 4, paragraph 7.
dimensions held by each of these two rights, an independent United Nations expert has explicitly declared with respect to housing rights that –
“it may be noted that special attention by Governments should be paid to the adoption and strengthening of national legislation on the implementation of adequate housing.”3
The different linguistic formulations used in elaborating human rights provisions relating to housing have led to some perplexity (and even contro-versy) as to what human rights related to housing actually imply in terms of law, State obligations and individual rights. These distinctions, however, have often been overstated, for although the terms may differ, international agree-ment does exist as to the intent, meaning and actions required with a recogni-tion of such rights as established under internarecogni-tional human rights law.
For the purposes of this report, and as a means of precluding misinterpre-tations of human rights relating to housing, the term ‘housing rights’ is perhaps most appropriate. First, as discussed in the previous chapter, various elements of housing rights are found in a number of international covenants and conven-tions. Second, the term ‘housing rights’ allows a broad and encompassing analysis to emerge, whereby all legislation with any bearing in any way on the enjoyment of the housing rights can be addressed. The fact that not all States have codified laws utilising the term ‘human right to adequate housing’ – but may have legislated in a manner directly linked to improving the more broadly-defined ‘housing rights’ of their citizenry – provides an additional normative basis for the choice of this term throughout this document. The term ‘housing rights’ should, therefore, be seen as a general expression, articulating the full range of concerns relating, even marginally, to the housing process, as set within the human rights domain. The terms ‘right to adequate housing’ or
‘adequate housing,’ which are legally-defined terms used in the ICESCR, how-ever, are used when appropriate, for instance when referring to housing rights in the context of that Covenant.
It should be noted that housing rights, as explained above, embody a number of components, ranging from ownership rights through security of tenure to the components defining adequacy. Additionally, however, this report refers at times to rights with respect to both land and property. Though not established to the same extent as housing rights within international human rights law, land and property rights are embodied in certain international instruments. The rights to land for the most part revolve around the rights to possession and to use of resources. Property rights, with the exception of housing as property, are usually limited to equality rights, the right to non-interference and the prohibition against arbitrary expropriation.
3. UN Doc. E/CN.4/1994/19, paragraph 326.
For the purposes of this report, land rights and property rights are defined within the context of the few international instruments addressing those rights.
For example, governments have recognized the land rights of indigenous peoples through the auspices of the International Labour Organization (ILO).
Article 7(1) of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), states that indigenous peoples –
“shall have the right to decide their own priorities for the process of development as it affects ... the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.”
Furthermore, Article 14(1) of this Convention recognises “the rights of owner-ship and possession of [indigenous peoples] over the lands which they traditionally occupy” while Article 14(2) pledges governments to guarantee effective protection of those ownership and possession rights over land.
Additionally, Article 16(1) states that indigenous peoples “shall not be removed from the lands which they occupy.”
With respect to general property rights, Article 17 of the Universal Declaration of Human Rights guarantees the right of everyone to own property alone or in association with others. Furthermore, it states that no one should be arbitrarily deprived of property. When the ICCPR and the ICESCR were being drafted, however, governments could not agree on property rights and thus the rights contained in Article 17 of the Universal Declaration where not included in either Covenant.
At the regional level, the Organization of American States (OAS) has recognized some land and property rights within their key human rights texts.
This is outlined in sub-chapter V.D below.
One final note, housing rights have also at times come into conflict with property rights, for example the right of a landlord over her or his property and the right of a tenant to security of tenure. In such cases, the overwhelming view is that the public interest of securing housing rights trumps private property rights. Indeed, in the words of the Special Rapporteur of the Sub-Commission on promoting the realization of the right to adequate housing:
“Under international treaties where the right to property is protected, and in countries in which it is a fundamental right, it has never been doubted that the right to property must yield to the greater social good of the community.”4
4. UN Doc. E/CN.4/Sub.2/1994/20, paragraph 67. For an in-depth examination of the jurisprudence regarding housing rights vs. property rights, see also paragraphs 67–76 of the same document.