The complex nature of housing and the growing prominence of human rights within international relations and law, has led certain commentators to equate a recognition of housing rights with the immediate duty of governments to substantively provide a house to anyone who requests it to do so. This inaccurate understanding of the meaning of housing rights, however, reflects neither general State practice nor the definitive interpretations given this right.
For instance, the final report of the Special Rapporteur of the Sub-Commission in 1995 provides guidance into how the right to adequate housing should be approached by firmly stating that this right should not be taken to imply:
(a) That the State is required to build housing for the entire population;
(b) That housing is to be provided free of charge by the State to all who request it;
(c) That the State must necessarily fulfil all aspects of this right immediately upon assuming duties to do so;
(d) That the State should exclusively entrust either itself or the unregulated market to ensuring this right to all; or
(e) That this right will manifest itself in precisely the same manner in all circumstances and locations.5
Conversely, in determining the legal implications these rights, the Rapporteur notes that recognition of housing rights must be seen and interpreted, in the most general sense, to imply:
(a) That once such obligations have been formally accepted, the State will endeavour by all appropriate means possible to ensure everyone has access to housing resources adequate for health, well-being and security, consistent with other human rights;
(b) That a claim or demand can be made upon society for the provision of or access to housing resources should a person be homeless, inadequately housed or generally incapable of acquiring the bundle of entitlements implicitly linked with housing rights; and
(c) That the State, directly upon assuming legal obligations, will undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right in question.6
5. UN Doc. E/CN.4/Sub.2/1995/12, paragraphs 4-5.
6. UN Doc. E/CN.4/Sub.2/1995/12, paragraph 12.
The State is generally not obliged to construct housing for everyone who requests. Laws and jurisprudence in a significant number of States as provided under section V.F, however, indicates that under certain circumstances, the State is legally required to provide particular persons or groups of persons with housing in an expedient manner. To argue, therefore, that housing rights obli-gations never signify the substantive provision of a home by the State to those in particular need does not completely correspond to practical and legal reali-ties. The Republic of South Africa, for instance, has enshrined the right to adequate housing in its Constitution (1996). With respect to national legisla-tion, Finland makes it mandatory for local government authorities to provide housing resources for the severely handicapped under certain circumstances (Art. 8(2), Act No. 380/1987). Further laws in Finland, including an amend-ment to the Child Welfare Act (No. 683/1983), require that local governamend-ment must rectify inadequate housing conditions or, as the case may be, provide for housing when inadequate or non-existent housing causes the need for special child welfare or constitutes a substantial hindrance to the rehabilitation of the child or the family.7 In the Republic of Korea, the Housing Construction Promotion Act (1972) calls for provision of the construction and the supply of dwelling units for persons who lack housing. Likewise, in the United Kingdom, the Homeless Persons Act (1977) requires local councils to provide accommo-dation to homeless families and homeless persons in priority need. Act No.
1493 (1993) in Bolivia mandates the Ministry of Human Development to pro-mote the construction of subsidized housing. The Government of Germany has stated that in the case of homelessness, Article 1(1), in association with Articles 20(1) and 28(1) of the Basic Law on the principle of a social state based on the rule of law, gives rise to the homeless person’s subjective right to be allocated accommodation enabling her/him to lead a dignified existence. Furthermore, this principle obligates the state to take into account the creation of sufficient living space when shaping the economic order and making provisions for the general good.8 It has also been asserted that jurisprudential considerations can be construed to reveal a right to housing, although an independent right to housing is not established in the German Basic Law.9
In January 1996, UN-HABITAT and OHCHR jointly convened an expert group meeting on the human right to adequate housing. The experts recognised that under certain defined circumstances it may be incumbent on the State to provide housing:
7. Karapuu and Rosas, 1990.
8. Note verbale by the Permanent Mission of Germany to the United Nations Centre for Human Rights, 23 February 1994, pp. 8-9.
9. Ruthers, 1993. For relevant excerpts, see UN-HABITAT, 2002c.
“[a]mong the core areas of the State role in realizing the human right to adequate housing are provision of security of tenure, pre-vention (reduction) of discrimination in the housing sphere, prevention of illegal and mass evictions, elimination of homeless-ness and promotion of participatory processes for individuals and families in need of housing. In specific cases, the State may have to provide direct assistance, including provision of housing units, to people affected by disasters (natural and man-made) and to the most vulnerable groups in society.”10
Other examples could be given. The important point, however, is that the primary duty of the States bound by similar legal obligations is to create conditions11 so that all residents may benefit from and enjoy in full the entitlements implied in the right to housing, within the shortest possible time-frame. General Comment No. 4 reiterates this perspective, attesting that:
“While the most appropriate means for achieving the full realization of the right to adequate housing will inevitably vary from one State party to another, the Covenant clearly requires that each State party take whatever steps are necessary for that purpose.”12
“Measures designed to satisfy a State party’s obligations in respect of the right to adequate housing may reflect whatever mix of public and private sector measures considered appropriate.
While in some States public financing of housing might most usefully be spent on direct construction of new housing, in most cases, experience has shown the inability of Governments to fully satisfy housing deficits with publicly built housing.”13
It is, in the light of above explanations, clear that States are not necessarily required to build housing for the entire population. They must, however, provide access to adequate housing under particular circumstances, in line with general State obligations and personal entitlements associated with the human right to adequate housing.
10. United Nations Centre for Human Rights and UNCHS (Habitat) 1996. See also UN Doc. HS/C/15/2/Add.2.
11. Legislative, administrative, regulatory, economic, social, policy and so forth.
12. General Comment No. 4, paragraph 12.
13. General Comment No. 4, paragraph 14.