The Right to Housing: Law, Concepts, Possibilities 9781472566416, 9781849461535

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Preface Ours is a world in which events as disparate and seemingly unrelated as war, natural disaster, city regeneration, mortgage repossession, international sport and rural development schemes render many millions homeless each year. These upheavals displace great waves of people across international borders, and millions more within their own states. Ours is a world in which even the most prosperous states have homeless populations in the hundreds of thousands and where more than one billion people – one in three urban dwellers – are crowded into informal settlements on the margins of economic and political life. In such a harsh world, what role can a human right as nebulous, contested (even derided) as the right to housing, play? It is this question that motivates The Right to Housing: Law, Concepts, Possibilities. The question first began to gnaw its way into my consciousness during my work as a tenants’ rights caseworker at the Parkdale Community Legal Clinic in Toronto, where I spent a semester during my undergraduate law degree at York University’s Osgoode Hall. It continued to haunt me in my work as a research assistant in the area of refugee law and rights at the University of Sydney, and finally provoked me into devoting several years of my life to a PhD at the University of Cambridge. Yet the question remained unanswered. Fortunately, the British Academy and the Lauterpacht Centre for International Law, University of Cambridge, stepped in to provide me with the funding, and the support, to devote several more years to the project. I am now emerging from this long tunnel. And while this monograph does not provide an easy answer, it illustrates that the right to housing does indeed have a role to play in our struggles for social transformation through human rights. I owe many thanks to the Cambridge Australia Trust, and to the Poynton Family, who provided the scholarship that enabled me to come to Cambridge in the first place. As this research reveals, material needs structure social possibilities, and without the financial support these bodies provided, I would not have been able to undertake this research at all. Darwin College, Cambridge, which served as home to me both as a PhD student and subsequently as a Research Fellow, also generously provided financial support, as did the Cambridge law faculty. Equally importantly, Darwin College, the Lauterpacht Centre and the Cambridge law faculty also provided me with a collegial and academically challenging environment, while my colleagues at Queen Mary, University of London, provoked fresh insights which have helped me to hone the final manuscript. Without the genial, yet often penetrating, insights from all my colleagues, I would not have been motivated to dig so deeply into the issues raised by this project.

vi  Preface I owe an immense debt of gratitude to my doctoral supervisor, now Prof Guglielmo Verdirame of King’s College London. His breadth of knowledge and interest allowed me to take my work in wonderful directions perhaps not generally encouraged in a Cambridge law PhD. Similarly, Prof Susan Marks and Prof James Crawford, my PhD examiners, pressed me to scrutinise the preconceptions of the legal discipline in the context of the right to housing. The – often irreconcilable – comments and insights of these three individuals drove me to uncover the complexities of the subject matter and its implications for the broader human rights debate. It is my hope that all three of them see their influence reflected, even if only implicitly, in this work. Friends and colleagues have read drafts with good grace (often at short notice) and offered thoughtful and incisive criticisms. Thanks are due in this regard to Olivier de Frouville, Art Hohmann, Skye Hohmann, Kirsty Hughes, Mark Jordan, Cameron Miles, Stephanie Palmer, Surabhi Ranganathan, Stephen Robertson, Guglielmo Verdirame and Emma Waring. My inability – sometimes refusal – to always see things their way illustrates why scholarly projects must include, as this one, the caveat that all errors remain the author’s own. Thanks also to Christopher Hall and Cecily Rose for excellent research assistance performed with maximum efficiency and minimum fuss. Skye Hohmann provided the photographs for the cover of the book, which reflect not only the breadth of housing conditions across the world, but also our travels together: travels which have also brought home to me the impact of the form and nature of housing on people’s lives. Finally, thank you to my family. I owe much to my parents, Ann and Art, and to my sisters, Skye and Mollie. It helps to grow up surrounded by inquisitive minds. And, last but not least, to Jonathon and Angelika, whose forbearance, love and support make this book as much theirs as it is mine. The editors of the Yale Human Rights and Development Law Journal granted permission for me to draw, and expand, on ‘Visions of Social Transformation and the Invocation of Human Rights in Mumbai: the Struggle for the Right to Housing’ (2010) 13 Yale Human Rights and Development Law Journal 135. The article has been integrated into parts of Chapters 4 and 8.

Introduction The Right to Housing: Law, Concepts, Possibilities

A

HUMAN RIGHT TO housing represents the law’s most direct and overt protection of housing and home. Unlike other human rights, through which the home incidentally receives protection and attention, the right to housing raises housing itself to the position of primary importance. Moreover, as human rights offer a powerful and universally recognised vocabulary in which to express harms, alongside concrete opportunities for redress, it is easy to see why the homeless, the inadequately housed and the forcibly displaced would turn to the language of human rights to articulate the hurt they have experienced. However, despite the fundamental importance of safe and secure housing to a fulfilled human existence, questions about why we should protect housing as a human right, and what such a human right should look like remain unanswered in law, theory and practice. Thus the meaning, content, scope and even existence of a right to housing raise vexed questions. On the one hand, the right appears in major international and regional human rights covenants, yet its status as a human right is often greeted with scepticism. On the other hand, those who embrace the right at times appear to be overinvested in its potential, resulting in a failure to acknowledge the possible limitations of the right. Drawing on insights from across the disciplines of law, humanities and the social sciences, this book is both a contribution to the state of knowledge on the right to housing, and an entry into the broader human rights debate. The analysis reveals that while the right to housing often remains marginal or underdeveloped in our study of human rights, housing – and rights to it – are in fact central to the most deeply held assumptions that undergird our social relations. This book thus addresses profound questions on the role of human rights in belonging and citizenship, in the formation of identity, in the perpetuation of structures of social organisation and, ultimately, of the relationship between the individual and the state. The work links together the rapidly developing, though still little analysed, legal materials on the right to housing with the wealth of rich analysis of the role and purpose of housing and home in the humanities and social sciences.

2  Introduction The resulting study sheds bright light on previously only dimly glimpsed insights into the relationship between rights and the material conditions for their enjoyment. It thus opens up the space in which to consider the possibilities of the right to housing beyond its current incarnation. By illuminating these relationships, the analysis also calls us to question the limitations and possibilities of all human rights, by asking what they reveal about our assumptions of the relationship between rights, the individual and the state – in law and beyond. In order to consider these questions, it is first important to evaluate the right to housing in law. Thus, Part I offers an analysis of the right to housing in international and regional human rights law, and in key national constitutions. This first Part of the book presents a picture of the right to housing as a legal human right. The book is not a practitioner’s guide, and thus does not attempt a comprehensive analysis of every case or applicable legal statement. Nevertheless, it presents a detailed picture of the law on the right to housing across the relevant jurisdictions and legal regimes. In addition, the analysis places the legal interpretation in the context of the actual social conditions that motivate people to seek the right to housing before courts or through other quasi-legal institutions. From a lawyer’s perspective, Part I would be expected to offer answers. An analysis of the legal materials on the right to housing should reveal what the right to housing is; when and by whom it can be claimed; and when and by whom obligations are owed. Yet Part I yields no such certainty. Instead, the right to housing as interpreted across the relevant regimes and jurisdictions evinces three key weaknesses, assessed in the final chapter of Part I. These weaknesses are as follows. First, there is a failure to define the right, symptomatic of a normative weakness in identifying what the right to housing is, and a resulting uncertainty about when, and by whom, it can be claimed. Secondly, the right’s interpretation is overly procedural, even ‘programmatic’, privileging means at the expense of ends, and resulting in a right that appears to recede from the potential claimant’s grasp. Finally, and most fundamentally, the right to housing fails to connect to the conditions of violation, suffering and destitution that characterise the lives of those who it might be expected to protect. Yet the continuing claims made under the banner of the right to housing, and the glimmers of a fuller, deeper understanding of its potential, illustrate that the current legal interpretation does not exhaust the latent possibility of the right to housing as either a discursive or legal strategy. This point motivates the analysis in Part II. Part II employs privacy, identity and space as three conceptual lenses through which to reflect on the right to housing more deeply and broadly than is possible through a purely legal analysis. Glimpses of the recurring importance of these concepts emerge in the legal analysis in Part I, both in the motivations for housing rights claims, and in the justifications for the right’s interpretation given by courts and monitoring bodies responsible for its development. Nevertheless, the concepts remain as largely unexplored background to the explicit legal reasoning offered.



Assumptions, Definitions, Scope  3

Here, these three ‘lenses’ offer an opportunity for re-evaluation of the questions of the right’s meaning, content and scope. Most importantly, the analysis illuminates how these concepts might provide justifications for a right to housing which currently fail to emerge from the legal interpretation of the right. At the same time, examining these concepts in light of potential justifications for a right to housing as a human right illuminates aspects of the concepts that otherwise remain hidden. Part II thus enriches our understanding of matters of privacy, identity and space, and how they relate to the concrete living conditions of individuals and groups around the world. In many ways, Part II is an attempt to begin a process of reflection and start a conversation on the meaning, purpose and possibility of the right to housing that is necessary and sorely lacking. Part II assumes that human rights strategies in general, and that housing rights strategies in particular, have the potential to redress injustice, relieve destitution, and emancipate the marginalised. The conclusions offered in each of the three conceptual analyses thus rely on a faith in the utility and power of human rights. The chapters offer positive statements about how a right to housing can be justified, and why it should be. Part III, however, begins with a sceptical question: can the right to housing offer possibilities for social transformation? A quick glance will reveal that Part III is the shortest section of the book. Its brevity should not, however, lead the reader to assume a negative resolution to the question posed. Rather, the succinctness of the final Part is based on the conclusion that it is not in the rehearsal of legal arguments that the possibility of the right to housing lies – though the law plays an important role. Its possibility exists, rather, in the agency and creativity of those who seek to realise the right. The potential of the right to housing is in the claims made under it, in which lie the irrepressible radicalism of all human rights.

I.  ASSUMPTIONS, DEFINITIONS, SCOPE

Before turning to the substance of the analysis, it is important to clarify certain underlying matters of structure and content. Below are set out some necessary comments on the tensions raised in the structure of the book, the scope of the work, and matters regarding the definition of central terms. A.  Law, Concepts, Possibilities or Concepts, Law, Possibilities?: a Note on Structural Tensions The structure and organisation of this book includes an inescapable tension, raised by the impossibility of completely severing law from concepts in any analysis of human rights. On the one hand, placing theory or concepts before law may be logically appealing, but is attended by problems of specificity and succinctness. On the other, placing law before concepts presents the law in a

4  Introduction theoretical vacuum. The tension will persist regardless of the choice made, yet, here, the choice I have made is a conscious one, for three reasons. First, considering the law and then seeking any conceptual underpinnings for the right allows a more concrete and detailed discussion of the conceptual questions. These more theoretical questions can then be tied directly back into the legal analysis, without long detours into facts and reasoning. Cross-references are included throughout the book, in order to provide clarity without repetition. Law, then concepts, is a structure that enhances the clarity of the theoretical analysis, without detracting from the completeness of the legal analysis. Yet the inescapable tension is deliberately emphasised in my choice of structure. Lawyers commonly begin and end their investigations within the framework provided by the law. But the fact that the legal analysis undertaken here fails to provide complete – or even in some cases adequate – answers, challenges those of us who approach social problems through the paradigm of the legal discipline to become aware of our doctrine’s limits. Undertaking the conceptual analysis after the legal analysis allows us to lay other frames over the legal one, changing the composition of the picture in sometimes subtle, sometimes striking ways. In short, the structural tensions in this book should expose something about the right to housing but also about the law itself. It is this motivation – to disrupt the expected so that something new may be revealed – that provides the second reason. Finally, a realisation that the law alone did not yield meaningful or coherent answers on the right to housing was what motivated the conceptual analysis undertaken in Part II, and it colours the reflections on the Possibilities in Part III. It was only after undertaking a standard – though critical – legal analysis of the right to housing that it became apparent to me that ‘the answer’ might not be forthcoming within the law at all. The existence of the three problems set out in chapter 5, and the failure of the legal approach to deal with these problems adequately, even at times to notice them, led me to undertake the conceptual analysis. Each stratum of analysis: from law, to concepts, to possibilities, illuminates a deeper layer, revealing a more complete picture of the right and its role and potential. Yet the picture would remain unseen if we did not undertake the process of analysis which provides the light by which to view it. B.  Defining Housing, House and Home The concept of ‘home’ is not readily amenable to an objective definition, and even a definition of a ‘house’ is difficult to formulate, given the widely varying physical structures in which people live. Housing provides and protects some of the most fundamental human needs. Safe and secure housing shields us from the elements and provides refuge from external physical threats. It gives us a material base from which to build a livelihood and take part in the life of the community and the state. But housing also provides a space in which our psy-



Assumptions, Definitions, Scope  5

chological needs can be met. Secure housing is both intrinsically and instrumentally important in the formation and protection of community, belonging and place in the world. Those whose housing is inadequate, who are forced from their homes, and who are homeless suffer severe personal and social deprivations with both psychological and material impacts. Yet this book will not offer a comprehensive definition of a house, nor does it include one definition of a home. This is because it would close down possible avenues of analysis and thought to predefine one of the central questions of the book: what is housing, and in which circumstances should we protect it as a human right? Where necessary or useful, a specific definition is invoked for a particular argument. Overall, however, the analysis in the book is based on an appreciation that the very ambiguity in the concept of housing and the amorphousness of its physical manifestations is inherently bound up in questions about the right to housing’s meaning, scope, content and potential. As such, artificial boundaries and definitions cannot be imposed and carried through from one section to the next without serving to dislocate the analysis from the actual living conditions of human rights violation and realisation that this work strives to keep in sight. C.  A ‘Right to Housing’ versus ‘Housing Rights’ In defining the terms house, home and housing, I have made a conscious decision not to impose artificial lines and categorisations that might foreclose fruitful avenues of thought and analysis. However, some clear conceptual lines must be drawn. One observed throughout is a distinction between ‘the right to housing’ as a human right, and ‘housing rights’. It might seem odd to mark a distinction between the ‘right to housing’ and ‘housing rights’ so early. Surely, one of the most important issues at stake is the question of what the right to housing is. As such, how can I be sure I have demarcated the concepts correctly? However, there are two reasons, in addition to issues of length and scope, why the distinction is drawn here and maintained throughout. These are, first, the subject of the right in question; and secondly, the way in which the right is claimed. Both these issues separate ‘housing rights’ from a ‘right to housing’ as a human right. When I refer to a ‘right to housing,’ I refer to the human rights, as codified in or implied into international and regional rights treaties and declarations, and into domestic constitutional orders through bills or declarations of rights. As international or regional human rights, these rights to housing exist outside of questions of citizenship (although not outside questions of jurisdiction). They are rights based on the recognition of human beings as human beings,1 not the 1   A Gewirth, ‘The Epistemology of Human Rights’ in E Frankel Paul, FD Miller, Jr and J Paul (eds), Human Rights (Oxford, Basil Blackwell, 1984) 1.

6  Introduction rights one has by virtue of one’s membership in a particular national political community or on one’s status within a specific sovereign state. In the domestic constitutional context, questions of citizenship and jurisdiction may both be applicable. Nevertheless, the claim to a right to housing as a human right springs not from the question of citizenship, but from the question of humanness or humanity and relates to a demand for the right that is audible beyond national borders, and which seeks the attention of the international community as a whole. Housing rights, on the other hand, refer to legal rights codified into or arising from the domestic law of particular national states. These rights refer to entitlements under nationally conceived social welfare legislation for access to ‘social’ housing, or to support in relation to housing for tenants.2 That the rights of owners are discussed through the paradigm of property law, not through housing law, creates a significant distinction in rights that is questioned later in this work.3 Substantive constitutional socio-economic rights, as O’Connell argues, impose binding obligations over and above any moral obligations arising from welfare entitlements, which are in contrast ‘essentially discretionary in nature’.4 The second point of distinction is based on the way the rights are claimed and invoked. In elucidating his right to the city, Henri Lefebvre recognised a crucial distinction between the demand for a right to housing, and the decision by the state to provide housing by taking control of pre-existing parts of the market economy,5 (although such a decision may give rise to legal rights and entitlements).The right to housing as a human right is motivated by such a distinction, which rests on the cry for recognition of the right as much as it does on the provision of the good. I seek to examine why, how and when this demand of right is articulated, and the implications it may have in protecting ‘more durable human rights dimensions’ of the social values and interests that have also, at times and in places, been protected through domestic social welfare legislation.6 While recognising that drawing a bright line between the right to housing as a human right and housing rights as tenants’ rights or as social welfare rights more generally is theoretically and practically difficult, I confine myself to an examination of the right to housing as a human right for these reasons. My decision reflects the fact that this is a book that asks questions about human rights. It specifically interrogates what, how and whether a human rights approach, howsoever conceived, adds to the issues of housing and its relation2   N Bernard, ‘The Scope and Meaning of the Right to Housing’ in (2008) FEANTSA Homeless in Europe Magazine (Autumn) 15. 3   See further Chapter 7, II.A. 4   P O’Connell, Vindicating Socio-economic Rights: International Standards and Comparative Experiences (Oxford, Routledge, 2012) 6. 5   H Lefebvre, Writings on Cities (E Kofman and E Lebas (eds and trans), Malden, Blackwell, 1996) 78. 6   M Langford, ‘The Justiciability of Social Rights, from Practice to Theory’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 3.



Assumptions, Definitions, Scope  7

ship to the actual living conditions of individuals and communities around the world in light of, or absent, domestic social welfare legislation, as the case may be. As such, the book’s starting point is with human rights, and rights as human rights remain its central concern. Housing rights are only considered where they butt up against, come into conflict with, or otherwise serve to illuminate – by similarity or difference – a right to housing as a human right. D.  Categorising the Right to Housing: Economic, Social or Cultural Right? By virtue of its placement in the International Covenant on Economic, Social and Cultural Rights7 (ICESCR), the right to housing traditionally falls within the category known as social, economic and cultural rights. This designation seems firmly entrenched, despite the official position adopted by the United Nations and endorsed by most human rights practitioners, activists and academics that all human rights are indivisible, interdependent and interrelated.8 Moreover, indivisibility often remains in the realm of rhetoric, rather than appearing as a commitment to equal realisation, enforcement or attention for all human rights. The suggestion that housing is a right has been met with opposition, normally based on a perception that housing cannot fulfil the characteristics necessary for designation as a right. However, even when the indivisibility and interdependence of rights is taken seriously, important questions arise about whether diverse rights rest on different moral, legal and normative bases. If all rights are indivisible and interdependent, do economic, social and cultural rights continue to exist as a separate category of right, and if so, what is the significance of this categorisation or, if necessary, their further sub-­ categorisation as economic, social or cultural right? In Eide’s attempt9 to illuminate the human goods we seek to protect through economic, social and cultural rights, he argues that the ‘core’ of social rights is the right to an adequate standard of living, which is embedded in Article 25 of the Universal Declaration of Human Rights10 (UDHR), Article 11 of the ICESCR, and in the provisions of the Convention on the Rights of the Child11 (CRC). This right to an adequate standard of living has a minimum basic content that ensures subsistence to all people in the form of food, clothing, housing and necessary conditions of care.12 Economic rights, Eide states, are instrumental to the 7   International Covenant on Economic, Social and Cultural Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 3 January 1976). 8   United Nations, Vienna Declaration and Programme of Action A/Conf.157/23 (1993) Part 1, para 5. 9   A Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in RP Claude and BH Weston, (eds), Human Rights in the World Community: Issues and Action, 3rd edn (Philadelphia, PA, University of Pennsylvania Press, 2006). 10   Universal Declaration of Human Rights, UNGA Res 217 A (III) (adopted 10 December 1948). 11   Convention on the Rights of the Child, UNGA Res 44/25 (adopted 20 November 1989, entered into force 20 September 1990). 12   Eide, ‘Economic, Social and Cultural Rights as Human Rights’ above n 9 at 173.

8  Introduction provision of these social rights. He categorises the important economic rights as the right to property and the right to work as codified in the UDHR, and the right to social security as included in the UDHR, the ICESCR and the CRC. These economic rights are also instrumental as ‘a basis of independence and therefore of freedom’.13 Alternatively, economic rights could be defined as rights to produce and to consume. Trudeau writes that ‘[a]s a producer, man has a right to demand from society that it offer him a market for his useful labour or produce. As a consumer, man has a right to a share of the total production of society, sufficient to enable him to develop his personality to the fullest extent possible’.14 To Eide, then, social rights are rights which enable humans to exist in society at a certain minimum level. In Eide’s definition, the right to housing is a social right. Constituting a necessary basis of subsistence, adequate housing facilitates human participation in the life of the community. However, the right to housing is also a cultural right. The form, location, arrangement and materials of the home are an expression of cultural practice and values. This is true for all groups, not just for indigenous and minority groups, though it is these groups for whom the cultural aspect of housing rights might most often be violated.15 Others, like Alston, argue that ‘it is unproductive to seek to distinguish rights that are so closely intertwined’.16 Further, we must ask in what way, if any, social rights can be distinguished from civil and political rights. Both socio-economic and civil-political rights are designed to bring human beings into society. Civil and political rights assume participation is achieved through civic acts such as voting and speaking, yet such acts also have a social character. The means through which participation is achieved may be different for the two sets of rights, but the normative basis upon which the protection rests appears strikingly similar when expressed in these terms. The normative proximity underlying all rights is also evident in theories of rights grounded in dignity or capabilities, for example.17 Throughout the book, I question whether there is a meaningful theoretical argument, based on human rights norms, for a clear distinction to be made between categories of rights. Like the consciously self-critical work of Craig Scott, I am ‘prepared to engage in category-crossing to the point that we begin to defy the categories themselves’.18

13   Ibid. Likewise, Fabre defines social rights as rights to the meeting of minimum material needs: C Fabre, Social Rights under the Constitution: Government and the Decent Life (Oxford, Oxford University Press, 2006) 1. 14   PE Trudeau, ‘Economic Rights’ (1961) 8 McGill Law Journal 121, 122. 15   See further Chapter 7 III.B. 16   P Alston, ‘Economic and Social Rights’ (1994) 26 Studies in Transnational Legal Policy 137. 17   See C Gearty, Can Human Rights Survive (Cambridge, Cambridge University Press, 2006) and MC Nussbaum, Creating Capabilities: the Human Development Approach (London, Belknap, 2011), respectively. 18   Craig Scott, ‘Reaching Beyond (Without Abandoning) the Category of “Economic, Social and Cultural Rights” ’ (1999) 21 Human Rights Quarterly 633, 636.



Assumptions, Definitions, Scope  9

If, as I am prepared to argue, economic, social and cultural rights may be hollow as a normative categorisation of rights why, then, do I continue to use the category to refer to rights such as the right to housing? First, categories have various practical benefits. They are useful as a form of shorthand: ‘economic, social and cultural rights’ is an especially practical term when referring to the rights contained in the ICESCR, the Covenant bearing their name. Secondly, they can be seen as the ‘working hypothesis’ that we use to understand the norms, functions and relationships of human rights.19 Yet the time may come – in fact, may have come – to discard the hypothesis altogether. Secondly, it can be argued that the category of economic, social and cultural rights has a discursive force shaped by its inferior status in human rights hierarchies. As Scott notes, to an ‘important extent, such categories have arisen and continue to exist as categories of resistance to dominant human rights discourses. Varying degrees of discursive power have emerged from the very marginality of these categories’.20 Collapsing all human rights into one category could have the effect of stifling creative and rebellious human rights thought and practice. Yet as important as this insight is, it is one imposing a force of protest or subversion on the rights from above, rather than an inherent distinction of principle between two distinct typologies of rights. Finally, the distinction between economic, social and cultural rights and other categories of rights remains highly relevant in a legal sense, due to differing obligations imposed on states through the ICESCR, for example, as opposed to the International Covenant on Civil and Political Rights21 (ICCPR), or through the Revised European Social Charter22 (RESC) as contrasted with the European Convention on Human Rights23 (ECHR). Such differing legal obligations illustrate Henry Shue’s argument that it is not the normative or moral basis of various rights that differ, but in fact the correlative duties to fulfil those rights.24 I use the term ‘economic, social and cultural’ or at times ‘socio-economic’ or ‘social’ to describe the right to housing throughout this book for the reasons suggested above. Despite my adoption of this terminology, serious questions as to how, whether and why the right to housing should be given this categorical designation rather than another must be kept in mind. Throughout, I attempt to illustrate the interconnections extant in the theoretical foundations of the right to housing, which cross borders erected by treaties and ideologies. Thus, the analysis undertaken in the book questions the categorisation of the right to housing, and recognises that the normative proximity of   Ibid at 642.   Ibid at 644. 21   International Covenant on Civil and Political Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 23 March 1976). 22   European Social Charter (Revised), CETS no 163 (opened for signature 3 May 1995, entered into force 1 July 1999). 23   European Convention for the Protection of Human Rights and Fundamental Freedoms, CETS no 005 (opened for signature 3 November 1950, entered into force 3 September 1953). 24   H Shue, Basic Rights, 2nd edn (Princeton, Princeton University Press, 1996) 52. 19 20

10  Introduction rights such as the right to housing and the right to life should be recognised in judicial interpretations and in academic writings on the subject. Without this recognition, analyses of the right to housing will fail to move beyond the institutional questions of enforcement and interpretation which so often obscure meaningful debate on the nature and content of the right, and which it is the project of this book to overcome.

1 The Right to Housing in the International Bill of Rights I. INTRODUCTION

T

HE UNIVERSAL DECLARATION of Human Rights1 (UDHR), and the two international covenants in which its principles were translated into law, are the customary starting point for any examination of international human rights. The International Covenant on Economic, Social and Cultural Rights2 (ICESCR) and the International Covenant on Civil and Political Rights3 (ICCPR) are the most widely ratified and comprehensive of international human rights documents. In addition, the documents have become the standard against which other human rights protections are measured. They are thus not only conventional, but logical, places to begin a human rights analysis. With specific regard to the right to housing, the International Bill of Rights is often considered as containing the seed from which other provisions on the right to housing have grown. The concept of freedom from want in the Preamble to the UDHR germinated into the seedling that is the right to an adequate standard of living in Article 25 of the UDHR and Article 11(1) of the ICESCR. Whether that seedling has flourished, and in which directions it has grown, is the subject of this chapter. II.  UNIVERSAL DECLARATION OF HUMAN RIGHTS

The starting point for any examination of the right to housing at the international level is Article 25 of the Universal Declaration of Human Rights of 1948. In the UDHR, housing is explicitly included as an aspect of the right to an adequate standard of living. Article 25(1) states that: 1   Universal Declaration of Human Rights (UDHR) (1948) UNGA Res 217 A (III) (adopted 10 December 1948). 2   International Covenant on Economic, Social and Cultural Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 3 January 1976). 3   International Covenant on Civil and Political Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 23 March 1976).

16  The Right to Housing in the International Bill of Rights Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

The UDHR envisages the right to housing as one element in a more holistic right to an adequate standard of living. Adequacy, although not defined, must be read in light of the provision’s purpose, which is the health and well-being of the individual and the family.4 There is no distinction drawn between economic, social and cultural rights or civil and political rights in the UDHR, and the impetus behind the inclusion of the right to an adequate standard of living reflects the drafters’ recognition that the fulfilment of basic material needs is a precondition of a life lived in dignity and freedom.5 Although the interconnections between dignity, freedom and basic material goods have since become a source of significant debate, no such controversy appears to have attended the inclusion of Article 25 in the UDHR’s text.6 As Asbjørn Eide notes, the ‘essential point’ motivating the inclusion of Article 25 was that ‘everyone should be able, without shame and without unreasonable obstacles, to be a full participant in ordinary, everyday interaction with other people’. Moreover, individuals should not be forced to meet their basic needs ‘by degrading or depriving themselves of their basic freedoms, such as through begging, prostitution or bonded labour’.7 The UDHR is applicable to the ‘whole world’,8 not just to treaty parties. Its Preamble involves ‘every individual and every organ of society’ in its realisation. Nevertheless, despite the fact that it is sometimes argued that the UDHR as a whole represents customary law,9 its greatest legal impact has been in the ‘inspiration and direction’ it has provided for subsequent binding treaty texts.10 As Hersch Lauterpacht’s prescient comments foreshadowed, the very fact that the UDHR did not offer anything in the way of binding legal commitments has meant that the Declaration has proved significant in the later development of international human rights law.11 In fact, many of the subsequent legal texts include the right to housing as a right to an adequate standard of living, often 4  A Eide, ‘Adequate Standard of Living’ in D Moeckli, S Shah, and S Sivakumaran (eds), International Human Rights Law (New York, Oxford University Press, 2010) 234. 5   Ibid 233–34. 6  A Eide, ‘Article 25’ in A Eide et al (eds), The Universal Declaration of Human Rights: a Commentary (Drammen, Scandinavian University Press, 1992) 385. 7   Eide, ‘Adequate Standard of Living’ above n 4 at 235. 8   A Eide and G Alfredsson, ‘Introduction’ in A Eide et al (eds), The Universal Declaration of Human Rights: a Commentary (Drammen, Scandinavian University Press, 1992) 7. 9   Olivier de Schutter writes that a there is a growing consensus that most, if not all, the rights enumerated in the UDHR have achieved customary status. See O de Schutter, International Human Rights Law: Cases, Materials, Commentary (Cambridge, Cambridge University Press, 2010) 50. 10   Eide and Alfredsson, ‘Introduction’ above n 8 at 6. 11   H Lauterpacht, International Law and Human Rights (London, Stevens and Sons Ltd, 1950) 425.



International Covenant on Economic, Social and Cultural Rights  17

worded very closely to Article 25(1) of the UDHR. When the right appears as a separately codified right, the UDHR’s Article 25 often remains the obvious inspiration. The UDHR as wellspring reflects not only the close normative relationship between the UDHR and the major international human rights covenants, evid­ ent in their drafting history,12 but also the philosophical and political influence of the UDHR on the form, content and structure of human rights as codified across the world. That the UDHR has been the germ from which other human rights have grown gives it instrumental importance in addition to its weight as a document in its own right. III.  INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The clearest international legal expression of the right to housing is Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, which pronounces that: The States Parties to the Present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Article 11 clearly reflects the structure and content of UDHR Article 25(1). Both provisions include housing along with food and clothing as aspects of the right to an adequate standard of living. However, Article 11(1) has been interpreted in a way that separates out the component elements of the adequate standard of living, such that housing now appears as a discrete right ‘derived from’ the right to an adequate standard of living.13 It is treated separately – and at times in isolation from – the right to an adequate standard of living as a whole. Unlike UDHR Article 25(1), Article 11(1) is tempered both by internal limitations and by the clauses of other restrictive Articles in the ICESCR. First, Article 11(1) is not absolute. Rather, states will ‘take appropriate steps’ towards its realisation, in concert with other states, through voluntary international cooperation. Secondly, Article 2(1), which sets out states parties’ obligations under the ICESCR, provides a level of obligation filtered through a number of practical and analytical limitations. Thus:

12   MA Glendon, ‘Knowing the Universal Declaration of Human Rights’ (1998) 73 Notre Dame Law Review 1153. 13   United Nations Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1)): Committee on Economic, Social and Cultural Rights, General Comment 4 (1991) E/1992/23 para 1.

18  The Right to Housing in the International Bill of Rights Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 2(1) constructs a complex standard of obligations, involving the actions and responsibilities of more than one state, over an indefinite span of time. Although Matthew Craven describes the article as so ‘convoluted’ and ‘intractable’ as to render it ‘virtually impossible to determine the precise nature of the obligations’,14 important specifics can be identified both from the Article itself and from the subsequent interpretive statements of the Committee on Economic, Social and Cultural Rights (CESCR). First, a state need only take steps, but these steps must aim towards the progressive realisation of the right. They must be deliberate, targeted and concrete,15 and ‘move as expeditiously and effectively as possible’ towards the goal of rights realisation.16 Deliberate regressive steps would seem to fall foul of the obligation to move forward on the realisation of the rights through progressive steps. As such, any such regressive steps ‘require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’.17 Yet, as this statement suggests, even such regression will not necessarily constitute a violation of the Covenant when seen in the context of a state’s overall performance. However, the obligation to take steps is not in itself limited or qualified by factors such as resource constraints.18 Moreover, some substantive obligations are immediate. Importantly, the Committee imposes a ‘minimum core obligation’ on parties. This requires ‘at the very least, minimum essential levels of each of the rights’.19 Any state not protecting this minimum core is prima facie in violation of the Covenant.20 Yet such a minimum core remains a problematic concept. As Katharine Young argues, the standard of ‘minimum core’ cannot supply content to the rights under the ICESCR while even ‘primary conceptual questions’ over what such a minimum core might be remain unanswered.21

14   M Craven, The International Covenant on Economic, Social and Cultural Rights: a Perspective on its Development (Oxford, Oxford University Press, 1995) 151. 15   United Nations Committee on Economic, Social and Cultural Rights, The Nature of States Parties Obligations (Article 2(1)): Committee on Economic, Social and Cultural Rights General Comment 3 (1990) E/1991/23 para 2. 16   Ibid para 9. 17   Ibid para 9. 18   Ibid para 2 19   Ibid para 10. 20  Ibid. 21  K Young, ‘The Minimum Core of Economic and Social Rights: a Concept in Search of Content’ (2008) 33 Yale Journal of International Law 113, 114. Young concludes that a minimum core approach is, ultimately, unsatisfactory (see 139–40 and 164–75).



International Covenant on Economic, Social and Cultural Rights  19

Moreover, the minimum core itself is still subject to the proviso that obligations are limited by the state’s maximum available resources. General Comment 3 states that ‘any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned’.22 While the CESCR suggests it will employ a heightened level of scrutiny in such cases,23 it remains difficult to reconcile a substantive minimum core obligation with that obligation’s limit at maximum available resources. However, in the CESCR’s view, Article 2 was not intended to provide a mechanism for states to abrogate responsibility for the implementation of socio-­ economic rights. Rather, Article 2 is ‘a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights’.24 Meanwhile, the Committee stresses that the limitations of Article 2 ‘must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States Parties in respect of the full realization of the rights in question’.25 In light of the overarching aim of the ICESCR, parties are obliged to ‘move as expeditiously and effectively as possible’ towards the full implementation of the Covenant rights.26 Notwithstanding the Committee’s upbeat interpretation of Article 2, implementation of the ICESCR is notoriously underachieved. Even the richest countries regularly fail to provide the minimum core of the Covenant rights, thus ‘prima facie, failing to discharge [their] obligations under the Covenant’.27 This is not only a problem of political will, though lack of such is clearly significant. Both theoretical and practical problems lead to legitimate difficulties in the right to housing’s implementation and enjoyment. First, the ideological bifurcation of the international human rights regime continues to impact the implementation, as well as the interpretation, of economic, social and cultural human rights under the ICESCR and beyond.28 Secondly, unlike the ICCPR, the ICESCR has yet to produce a body of ‘jurisprudence’ through an individual or collective complaints mechanism. The CESCR has been calling for an Optional Protocol for this purpose since 1992, arguing that a ‘system for the examination of individual cases offers the only real hope’ that the international community will treat economic, social and cultural rights ‘as seriously as they deserve’.29 Such a protocol may soon be in force, and will no   General Comment 3 above n 15 at para 10.  Ibid.   Ibid para 9. 25  Ibid. 26  Ibid. 27   Ibid para 10. 28   A An-Na’im, ‘To Affirm the Full Human Rights Standing of Economic, Social and Cultural Rights’ in Y Ghai and J Cottrell (eds), Economic, Social and Cultural Rights in Practice (London, Interrights, 2004) 12. 29   United Nations Committee on Economic, Social and Cultural Rights, Towards an Optional Protocol to the ICESCR (1992) A/CONF.157/PC/62/Add.5 Annex 211 at paras 93–94. 22 23 24

20  The Right to Housing in the International Bill of Rights doubt have significant implications for the clarification, interpretation, and even realisation, of the right to housing as contained in the Covenant. These possibilities are discussed further below. Given the lack of an individual complaints mechanism, other work undertaken by the CESCR has taken on a magnified role in the development of the right to housing in international human rights law. The active role the CESCR has taken in clarifying and fleshing out the obligations under the Convention by issuing General Comments on the ICESCR’s Articles is of particular importance. Of specific relevance are General Comment 4 on the Right to Housing,30 and General Comment 7 on Forced Evictions.31 A.  General Comments 4 and 7 and the Elements of the Right to Housing While the CESCR’s General Comments are non-binding, they have been highly influential in creating international consensus on the content of the right to housing. In fact, General Comment 4 is considered ‘the single most authoritative legal interpretation of what the right to housing actually means in legal terms under international law’ and is certainly the most widely cited statement of the content of the right.32 The CESCR’s statements on the right to housing can thus be described as the apex of the right’s legal interpretation, from which other interpretations flow and on which they build. The Committee has taken particular care to spell out its interpretation of the right to housing in General Comment 4 on Adequate Housing; and in General Comment 7 on Forced Evictions. These General Comments represent significant work that the Committee has undertaken to expand on the meaning of the vaguely worded requirements of Article 11(1). Yet despite their non-legal or, at best, ‘soft law’ status, the two General Comments are often uncritically employed in further analysis of the right to housing. Their frequent citation and evident impact on the interpretation of the right to housing in regional and subject-specific human rights covenants, and even national human rights cases, makes a close analysis of the Committee’s General Comments a necessary background for any subsequent understanding of the right. The General Comments set out an interpretation of the right that is broad and multifaceted. General Comment 4 stresses that the right to housing involves more than shelter, but extends to a place to live in dignity, security and peace.33 Moreover, the Comment alludes briefly to the connections between housing and   General Comment 4 above n 13.   United Nations Committee on Economic Social and Cultural Rights, The Right to Adequate Housing: Forced Evictions (Article 11(1)): Committee on Economic, Social and Cultural Rights General Comment 7 (1997) E/1998/22, Annex IV. 32  Centre on Housing Rights and Evictions, Sources 4: Legal Resources for Housing Rights: International and National Standards, 2nd edn (COHRE, Geneva, 2000) 73. 33   General Comment 4 above n 13 at para 7. 30 31



International Covenant on Economic, Social and Cultural Rights  21

other human rights, and socio-economic conditions of life.34 However, it is the ‘seven elements’ of the right to housing which have been most influential and to which the Committee has turned the main part of its attention. General Comment 4 enumerates seven essential elements that constitute the fundamentals of adequate housing: (i) legal security of tenure; (ii) availability of services, materials, facilities and infrastructure; (iii) affordability; (iv) habitability; (v) accessibility; (vi) location; and (vii) cultural adequacy.35 According to the CESCR, each one of these elements must be present in order for the right to housing to be enjoyed. Within each element are a set of highly specific sub-­ elements, the bulk of which set out procedures, policies and regulations that states should implement in order to fulfil their obligations with respect to the right. Fulfilment of the requirements set out, especially in General Comment 4, will, the Committee appears to submit, produce adequate housing. The approach of the Committee suggests that it views adequacy as realisable through the seven elements. It does not turn to consider the concept of adequacy itself in any depth. Nevertheless, adequacy is not a straightforward concept. In plain language use, adequacy equates to the quality of being able to meet a need satisfactorily, but to turn from adequacy to satisfactoriness does little to clarify the standard. Nor does adequacy have intrinsically positive correlations. As Padraic Kenna notes, ‘the adequacy level of housing may act as a floor or as a ceiling in the realization of States’ obligations’.36 Without more attention to what adequacy means, it cannot necessarily be fulfilled by the provision of a minimum core of each of the seven elements, as the CESCR’s approach seems to suggest. The following sections provide an analysis and critique of the Committee’s elements of the right to housing. The analysis is much needed, given the lack of deep consideration given these seven elements, coupled with the frequency with which they are invoked. (i)  Legal Security of Tenure Because of the devastating effects of forced or arbitrary evictions, which are prima facie incompatible with Article 11(1) of the ICESCR,37 the Committee has focused a large measure of its attention on this issue. Two General Comments, 4 and 7, set out state obligations with regard to evictions. Legal security of tenure can be considered the cornerstone of the right to housing. Those people whose housing is subject to seizure at any time or who are subject to the threat of arbitrary eviction cannot be said to enjoy housing as a right but rather to reside at another’s pleasure.   Ibid para 7.   Ibid para 8. 36   P Kenna, ‘Adequate Housing in International and European Human Rights Law: a Panoramic View’ (2012) 7 International Journal of Land Law and Agricultural Science 4, 5. 37   General Comment 4 above n 13 at para 18; see also General Comment 7 above n 31 at para 1. 34 35

22  The Right to Housing in the International Bill of Rights According to General Comment 7, forced evictions occur where there is ‘permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’.38 General Comment 4 states that ‘all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats’.39 Importantly, the CESCR recognises that the duty to undertake forced evictions only in line with the Covenant is immediate and operates regardless of any socio-economic or development issues otherwise experienced by the state.40 Further, ‘it is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection’.41 The CESCR sets out that states have positive obligations to protect against forced evictions which extend to controlling the violative actions of private persons and bodies.42 For example, General Comment 7 refers to the CESCR’s earlier General Comment 2, which declares that ‘international agencies should scrupulously avoid involvement in projects which . . . involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation’.43 When they are carried out, evictions must not occur in a discriminatory fashion,44 or as a punitive measure.45 They must be a last resort and carried out with a minimum of force.46 Moreover, the eviction must be proportionate and all due process and procedural safeguards detailed in the General Comment must be scrupulously followed.47 In order to comply with the Convention in the case of eviction, any damage or loss of real or personal property must be adequately compensated.48 General Comment 7 also stresses that if forced evictions are undertaken, they should not otherwise affect an individual’s human rights, particularly by rendering the evictees homeless.49 Such a thorough treatment of forced evictions is important given the staggering number of forced and arbitrary evictions worldwide.50 However, it may be that the Committee’s focus on forced evictions comes at the expense of other   General Comment 7 above n 31 at para 3.   General Comment 4 above n 13 at para 8(a). 40   Ibid para 8. 41   Ibid para 9. 42  Ibid. 43  Ibid para 17; and United Nations Committee on Economic, Social and Cultural Rights, International Technical Assistance Measures (Article 22): Committee on Economic, Social and Cultural Rights General Comment 2 (1990) E/1990/23 paras 6 and 8(d). 44   General Comment 7 above n 31 at para 10. 45   Ibid para 12. 46   Ibid para 13. 47   Ibid paras 14–15. 48   General Comment 7 above n 31 at para 13, relying on Art 2(3) of the ICCPR which requires effective remedies for the violation of a person’s human rights. 49   General Comment 7 above n 31 at para 16. 50   COHRE estimates that between 2003 and 2006, in excess of 5.6 million people were subjected to forced eviction; see Centre on Housing Rights and Evictions, Global Survey on Forced Evictions 10: Violations of Human Rights 2003–2006 (Geneva, CORHE, 2006). 38 39



International Covenant on Economic, Social and Cultural Rights  23

important aspects of tenure. Specifically, the Committee’s focus on evictions as the primary problem in security of tenure privileges the symptoms, failing to tackle the underlying causes and sources of insecure tenure. Two underlying issues of insecurity of tenure which would provide fruitful avenues of exploration for the CESCR are the link between land and access to secure tenure, and the issue of women’s inequality in access to tenure, issues I explore further in Part II.51 Admittedly, such deep-seated inequality issues are more difficult for the CESCR than the task of setting out legal procedures to govern evictions. It is clear that forced evictions constitute a front-line threat to security of tenure, and that they are easily amenable to traditional legal regulation, regardless of a state’s acceptance of other aspects of the right to housing. Guidelines for forced evictions are relatively straightforward when compared to attacking ingrained and hidden issues of equality and land reform. Nevertheless, guidelines on forced evictions will fulfil only a triage function so long as the causes of insecure tenure remain unaddressed. (ii)  Availability of Services, Materials, Facilities and Infrastructure The second element of the right to housing concerns the availability of services, materials, facilities and infrastructure. As General Comment 4 states: An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right . . . 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.52

It could be argued that the list of facilities set out by the CESCR are not necessarily required for this element to be met, but are instead examples of facilities that contribute to health, security, comfort and nutrition. However, it is preferable to see the enumerated list as providing minimum requirements. This reflects the fact that the right is a right to adequate housing, rather than to shelter or dwelling (terms that were explicitly rejected in the drafting of the right)53 and the minimum core approach taken by the Committee. Nevertheless, the nature of state obligations under the Covenant as those of progressive realisation, coupled with the fact that the CESCR has not held in its concluding observations that the failure to provide these services outright is a violation of the right to housing, favours Craven’s interpretation that the Committee sees the provision of these services and amenities as long-term policy aims.54 Coupling required minimum services, materials, facilities and infrastructure with future goals introduces a conceptual and practical problem however: at the same time as the   See further Chapter 6 V.   General Comment 4 above n 13 at para 8(b). 53  Craven, The International Covenant on Economic, Social and Cultural Rights above n 14 at 290. 54   Ibid 345. 51 52

24  The Right to Housing in the International Bill of Rights specific content of the right is clarified, the possible enjoyment of the right appears to recede into the future, contingent on individual states’ future policy decisions. The Committee abstains from imposing a view on whether the public or private sector should provide the necessary services, facilities, materials and infrastructure.55 Although privatisation need not violate the right to housing as expressed in General Comment 4, in many cases it has had a detrimental or ‘regressive’ effect, particularly where cost increases represent a failure on the part of governments to protect services and facilities necessary for the enjoyment of adequate housing. For example, in the early years of the new millennium, water privatisation in Brazil led to cost increases of as much as 400 per cent,56 while in Mumbai, electricity privatisation trebled monthly bills in some areas.57 Recognising these issues, the Committee reminds parties that responsibility for moving towards enjoyment of the right rests ultimately with the state. It also notes that violations of the Covenant can result through the actions of development agencies.58 However, the different actors involved in the provision of services, materials, facilities and infrastructure necessarily complicate the practical response to violations of the right. (iii) Affordability Affordability has clear implications for the ability of people to access the right to housing. Across cultures, housing constitutes ‘by far the largest proportion of household expenditure’ and also, overwhelmingly, the ‘household’s largest asset’.59 The financial risks and benefits that attend the home as asset or expense are, accordingly, of great significance. The CESCR recognises that the financial costs associated with housing should not threaten or compromise the household’s or individual’s ability to satisfy other basic needs.60 Accordingly, the CESCR has gone so far as to spell out how affordability should be achieved. First, housing subsidies should be put in place to assist those who are unable to afford housing. At the same time, housing finance should adequately reflect housing needs. This first step encompasses both renters and owners of a home. Secondly, tenants must be protected from unreasonable rent levels or increases (both in the private and government assisted rental market). Thirdly, the CESCR notes that where natural materials   See General Comment 4 above n 13 at para 14.   T O’Neill, ‘Water and Freedom: the Privatization of Water and its Implications for Democracy and Human Rights in the Developing World’ (2006) 17 Colorado Journal of International Environmental Law and Policy 357, 366. 57   Interview with anonymous Women’s Housing Rights Officer, Centre on Housing Rights and Evictions, Asia and Pacific Programme, Mumbai, 18 October 2007. 58   General Comment 2 above n 43 at paras 6 and 8(d). 59   S Leckie, ‘Where it Matters Most: Making International Housing Rights Meaningful at the National Level’ in S Leckie (ed), National Perspectives on Housing Rights (The Hague, Martinus Nijhoff Publishers, 2003) 7. 60   General Comment 4 above n 13 at para 8(c). 55 56



International Covenant on Economic, Social and Cultural Rights  25

are the ‘chief sources’ for building, the state should ensure these materials remain affordable for this purpose.61 Arguably, setting out specific affordability measures goes beyond the Committee’s proper role. Outlining means through which affordability should be ensured, such as rent control, is not only overly prescriptive – spelling out specific measures may stifle novel and creative approaches. It is also questionable whether the Committee is competent to determine whether complex affordability policies, even if successful in one place, will work in another. (iv) Habitability General Comment 4’s definition of habitability focuses largely on the physical safety of the dwelling and of its occupants. The dwelling must provide adequate space, protect the occupants from excessive cold or heat, damp, rain, wind and ‘other threats to health, structural hazards, and disease vectors’.62 The CESCR invokes the World Health Organisation’s Health Principles of Housing, which illustrate that unsafe, unsanitary and inadequate housing is ‘invariably associated with higher mortality and morbidity rates’.63 Legislative standards and regulations in the housing market are clearly contemplated by the CESCR in this area. However, as Craven notes, overregulation of housing standards can, in some circumstances, have a negative impact on the right to housing. He argues that although regulation ‘is certainly appropriate where construction firms are operating in the private sector for profit, it is not necessarily so where housing is built by local communities, or by the individuals themselves’.64 In these cases, overly stringent regulation can hamper the ability and will of people to build their own homes ‘and therefore contribute to a continued shortage of housing generally’.65 Such a warning is applicable especially when regulation designed for the private sector impacts on the informal sector. In fact, regulations intended to make housing safer or more habitable often fail to protect those whose housing lies in the informal sector. The informal sector, by its nature, tends to fall foul of the law and increased regulation can result in evictions and demolitions and render previously housed individuals homeless. Some have also criticised the focus on external, physical safety. As Farha notes, the CESCR ‘fails . . . to consider the mental health of inhabitants and the related dangers that might threaten the physical safety of the occupants such as domestic violence’.66 Threats within the family are difficult to address through  Ibid.   Ibid para 8(d). 63  Ibid. 64  Craven, The International Covenant on Economic, Social and Cultural Rights above n 14 at 346. 65   Ibid 346. 66   L Farha, ‘Is there a Woman in the House? Re/conceiving the Right to Housing’ (2002) 14 Canadian Journal of Women and the Law 118, 129. 61 62

26  The Right to Housing in the International Bill of Rights human rights law because of its focus on the public domain and on state action. However, these ‘hidden’ and ‘personal’ habitability issues impact significantly on women and children, especially when they are considered in conjunction with the ‘essential homelessness’ and systemic exclusion of women from control over housing in many states, issues addressed in Part II.67 (v) Accessibility The CESCR’s consideration of the accessibility of housing has two aspects. The first is accessibility for disadvantaged groups. These include the aged; children; those with physical disabilities; the terminally ill or HIV positive; the mentally ill; those with persistent medical conditions; and victims of natural disasters or those living in disaster-prone areas. These groups ‘should be ensured some degree of priority consideration in the housing sphere’.68 Although ‘other groups’ are also contemplated, the enumeration of a list has (perhaps inevitably) led to dissatisfaction, for example, strong criticisms have been levelled at the CESCR for excluding women.69 This aspect of accessibility is clearly related to notions of non-discrimination in the provision of the right to housing. Non-discrimination is an undertaking which is also required by Article 2(2) of the Covenant where: States Parties to the present Covenant guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 3 also affirms sex equality in the enjoyment of Convention rights. Issues of equality in access to housing have been further addressed by the Committee in General Comments 1670 and 2071 in which the Committee sets out positive and negative obligations on states to ensure equality of Covenant rights to all people. General Comment 16 also answers some of the criticisms for the earlier exclusion of women as a specified group. Meanwhile, General Comment 20, on non-discrimination in economic, social and cultural rights, links access to housing, water and sanitation to overcoming substantive discrimination for women and marginalised groups such as informal dwellers.72 This General Comment is evidence that the Committee’s understanding of the interconnec  See further Chapter 6.   General Comment 4 above n 13 at para 8(e).   G Paglione, ‘Domestic Violence and Housing Rights: a Reinterpretation of the Right to Housing’ (2006) 28 Human Rights Quarterly 120. 70  United Nations Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights General Comment 16 (2005) E/C.12/2005/4. 71   United Nations Committee on Economic, Social and Cultural Rights, Non-discrimination in Economic, Social and Cultural Rights (Article 2, para 2, of the International Covenant on Economic, Social and Cultural Rights) General Comment 20 (2009) E/C.12/GC/20. 72   Ibid para 8. 67 68 69



International Covenant on Economic, Social and Cultural Rights  27

tions among land, housing and substantive equality have deepened measurably over the years. The second dimension of accessibility is related to access to land. In this second respect, the Committee advocates an interventionist governmental stance, where ‘increasing access to land by landless or impoverished segments of society should constitute a central policy goal’.73 Moreover, ‘[d]iscernable 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’.74 This short paragraph represents a central issue of the right to housing, which concerns whether a meaningful line can be drawn between a right to housing and a right to land. A broad interpretation of the right such as the one the CESCR has put forward necessarily encompasses not only a physical dwelling, but also the conditions that make such a dwelling an enduring place of safety and security. How far these conditions can be secured without significant land reform in many states has been questioned, and many believe that housing cannot be secured without attention to ‘the primacy of land’.75 Nevertheless, this aspect of the right remains largely unexplored by the Committee. (vi) Location A house cannot be understood in isolation from its surroundings. Jim Kemeny notes that a house is seldom selected based solely on its internal features. Rather, the spatial relationship of the home to other houses, to the local area and community, to workplaces, shops, schools and recreational facilities and to webs of kin networks and friendships is one of the most important factors in housing location.76 Thus, ‘the location of the dwelling constitutes one of the key elements – if not the key element – in the social integration of individuals into society’.77 The CESCR’s recognition that a spacious, safe and well-appointed house is inadequate if it is constructed where the inhabitants are isolated from livelihood and schooling opportunities, health services or their traditional community ties,78 embraces the social aspect of the right to housing. This aspect of the right to adequate housing is particularly important in cases of resettlement, where alternative accommodation has been constructed for evictees or those subject to voluntary (or other) relocation. Resettlement accommodation is frequently built at significant distance from ‘home’, and preexisting communities are often fragmented, dispersed or isolated from their livelihoods and social networks. But it is not only in the context of resettlement that states must take account of the location aspect of the right to housing.   General Comment 4 above n 13 at para 8(e).  Ibid. 75   Ekta Parishad, Towards a People’s Land Policy (Abishek Creations, 2007) 7. 76   J Kemeny, Housing and Social Theory (London, Routledge, 1992) 159. 77  Ibid. 78   General Comment 4 above n 13 at para 8(f). 73 74

28  The Right to Housing in the International Bill of Rights ‘Ghettoisation’ may also represent a violation of the right to housing when government ‘recoils’ from the provision of services, facilities and infrastructure, consigning already marginalised communities to further social alienation and exclusion.79 A second, qualitative, aspect to the location element is often tied in practice to the first. This aspect provides that the right to housing is not met if the house is built on a polluted site or in proximity thereto, such that the living conditions threaten the rights of the inhabitants to health.80 Resettlement of communities to such sites would clearly violate the right to housing, but failure to notify communities of risks to their health posed by building on polluted sites could also represent a failure to respect the right to housing.81 (vii)  Cultural Adequacy According to General Comment 4, cultural adequacy is intended ‘to ensure that the cultural dimensions of housing are not sacrificed’ and to ‘enable the expression of cultural identity and diversity of housing’.82 These cultural factors are not, however, to be used as excuses for avoiding ‘appropriate’ modernisation or excluding new technologies in the construction of housing.83 The notion of cultural adequacy has been argued to import the negative implications of the notion of cultural relativism into the right to housing. However, if the flexibility of the term ‘adequate’ permits housing rights standards to develop in parallel to a given society’s views of what is desirable or appropriate in the material infrastructure of housing, it does not entail a rejection of the universality of human rights as standards.84 The notion of the universality of a right to housing does not require every house to be the same, just as the notion of the universality of the right to privacy will be met differently in different cultural contexts. Methods of fulfilling a right may vary, but the standard itself can remain constant.85 In fact, a degree of cultural specificity in the provision of adequate housing is necessary for the right’s realisation. The adequacy of housing is highly dependent on climate, family and societal structure, faith and religious requirements, among other culturally particular variables. As Craven notes, ‘traditional housing in each 79   L Wacquant, Urban Outcasts: a Comparative Sociology of Advanced Marginality (Cambridge, Polity Press, 2008) 267–70. 80   General Comment 4 above n 13 at para 8(f). 81  See eg Öneryildiz v Turkey (App no 48939/99) ECHR GC, Judgment, 30 November 2004 (2005) 41 EHRR 20; and Budayeva et al v Russia (App no 15339/02) ECHR, Judgment, 20 March 2008. See further Chapter 3II B iii. 82   General Comment 4 above n 13 at para 8(g). 83  Ibid. 84   AM Devereux, ‘Australia and the Right to Adequate Housing’ (1991) 20 Federal Law Review 223, 225. 85   W Osiaty n´ ski, Human Rights and their Limits (Cambridge, Cambridge University Press, 2009) 144.



International Covenant on Economic, Social and Cultural Rights  29

country often reflects the form and nature of social interactions’.86 State-issue, cookie-cutter, dwellings are unlikely to fulfil the right to housing, and may even violate it, given the diversity of human cultures, needs and experiences.87 However, a relative standard must not be used as an excuse for providing housing that is otherwise inadequate. Policies of this nature may be based on reliance on historical or other disadvantage experienced by minorities and marginalised persons, which must not be employed to import discrimination in the provision of housing into the law. Nor may they be used to justify state failure to move forward on the implementation of housing rights. Secondly, the requirement of cultural adequacy may appear to move away from the idea of individual right to communal right, an idea which causes some discomfort for those thinking from the civil and political rights paradigm. However, given the Committee’s role as a monitoring body, coupled with the General Comments’ function as guides for states parties in structuring their housing policies to bring state practice within the ambit of their obligations under the ICESCR, the Committee’s mandate has always been about housing in the aggregate. While the ICESCR contains individual rights, the work of the Committee focuses not only on the individual, but on the social and societal conditions that make these rights realisable. Thus, the CESCR’s approach here recognises that housing was not enshrined in the international human rights treaties as an isolated asset, but in recognition of its role in fostering an adequate standard of living within a society. B.  Optional Protocol: New Opportunities for Enforcement and Interpretation At the end of 2008, the United Nations General Assembly unanimously adopted an Optional Protocol to the ICESCR.88 When it enters into force the Optional Protocol will provide a mechanism through which the CESCR can sit in judgment on individual violations of the ICESCR. For many, the coming into force of the Optional Protocol completes the international bill of human rights, finally proving that the economic social and cultural rights of the ICESCR are equal to those rights in the ICCPR.89 It is anticipated that the views of the CESCR on individual rights violations will 86  Craven, The International Covenant on Economic, Social and Cultural Rights above n 14 at 347. 87   See further Chapter 7III. 88   Optional Protocol to the International Covenant on Economic, Social and Cultural Rights GA A/RES/63/435 (adopted 10 December 2008). 89  See eg C Albuquerque, ‘Chronicle of an Announced Birth: the Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights – the Missing Piece of the International Bill of Human Rights’ (2010) 32 Human Rights Quarterly 144; J Kratochvíl, ‘Realizing a Promise: a Case for Ratification of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights’ (2009) 16(3) Human Rights Brief 30; T Melish, ‘Introductory Note to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2009) 48 ILM 256.

30  The Right to Housing in the International Bill of Rights raise the profile of economic, social and cultural rights, and that individual decisions will give a ‘human face’ to violations of the Covenant, as individual stories ‘gain public awareness in a way that concluding recommendations on periodic reports can never do’.90 Nevertheless, the views of the Committee under the Protocol will remain non-binding, limiting its utility as a means of direct enforcement. Despite the fact that the first determinations may still be some way off, the Optional Protocol is already having an impact on the interpretation of the rights under the Covenant. First, the Optional Protocol is not merely a procedural instrument but has the potential to alter the substance of the Covenant rights. Secondly, although potentially a step towards the formation of consensus on economic, social and cultural rights,91 such consensus may not favour wider or more far-reaching interpretations of those rights. Pressure from states parties will be one factor. For example, some states attempted to create a distinction between justiciable and non-justiciable rights in the Covenant through the Optional Protocol’s text.92 At the same time, the greater authority and visibility that accompanies its new functions could make the CESCR anxious about the potential impacts of its decisions on its legitimacy, leading it to adopt more restrained interpretations.93 How the committee will approach the question of state violation of the rights in the covenant is, at least to some extent, constrained by the mandatory standard of review set out in Article 8(4) of the Optional Protocol itself. Article 8(4) represents the first time that a complaints procedure has imposed a standard of review on a treaty monitoring body, indicating an ongoing discomfort on the part of states with the idea of economic, social and cultural rights more broadly.94 Article 8(4) provides that: When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.

Article 8(4) thus explicitly invokes Part II of the ICESCR, which includes Article 2(1)’s qualified and multipart standard of state obligation. As a result, the CESCR will be tasked with filtering no doubt complex factual situations through both the standard of Article 2(1) and the new ‘reasonableness’ standard   Kratochvíl, ‘Realizing a Promise’ above n 89 at 33.   B Simmons, ‘Should States Ratify the Protocol? Process and Consequences of the Optional Protocol of the ICESCR’ (2009) 27 Nordic Journal of Human Rights 64. 92   B Porter, ‘The Reasonableness of Article 8(4): Adjudicating Claims from the Margins’ (2009) 27 Nordic Journal of Human Rights 39, 44. 93   M Scheinin and M Langford, ‘Evolution or Revolution? Extrapolating from the Experience of the Human Rights Committee’ (2009) 27 Nordic Journal of Human Rights 97, 100–1. 94   B Griffey, ‘The “Reasonableness” Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights’ (2011) 11 Human Rights Law Review 275 as detailed at 291–303. 90 91



International Covenant on Civil and Political Rights  31

in the Optional Protocol. As Griffey notes, how this will be achieved is ‘at the heart of challenges that will face the Committee’ once the Optional Protocol comes into force.95 C.  Conclusions on the Interpretation of the Right to Housing under the ICESCR The interpretation of the right to housing stemming from the CESCR’s General Comments, particularly Comments 4 and 7, provides what can only be described as a creative and genuinely thoughtful attempt to give content and meaning to a vaguely defined international standard. The CESCR’s interpretation of the right remains the point from which housing rights analysis begins, and, as will emerge in subsequent chapters, is the standard against which the interpretation of housing rights provisions in other regimes and jurisdictions is often measured. However, while the CESCR’s approach is both nuanced and systematic, the protection offered by the CESCR’s seven elements may be thinner and less robust than is inherent in the bare phrases of the ICESCR’s Article 11(1). Three main issues emerge from the analysis undertaken above. First, a complex interplay of economic, social and cultural elements is in play in the right to housing, yet there is little explicit attention to the tensions arising from these issues. It is perhaps inevitable that the economic implications of the right to housing have been strongly foregrounded in discussions of the right. The structure of the ICESCR, with its clauses limited by the concept of progressive realisation, has meant that much discussion of – and resistance to – the right by states has focused on the economic obligations arising from it. Naturally, the CESCR has needed to respond to these matters in its concluding observations on state reports and in its General Comments. Though necessitated by practical matters, this has been an unfortunate approach for the long-term development of the right. It has made the CESCR experts in evaluating the sufficiency of governmental policies in light of available resources, but it has kept attention turned away from the social and cultural aspects of the right. The social and cultural elements of the right ought, however, to have logical priority in any interpretation of its content. Only with the social and cultural norms of the right to housing sufficiently defined can we know what the economic implications truly are. Secondly, it is possible that the breadth of the right as interpreted by the CESCR can disempower individuals suffering violations of the right to housing. The overwhelming complexity of the seven elements can obscure and make uncertain what can actually be claimed before a court or from the state. This is evident from the ongoing discussions as to which of the seven elements represent immediate obligations, and which long-term policy aims. In addition, the   Ibid 278.

95

32  The Right to Housing in the International Bill of Rights interpretation of the right clearly envisages and encourages a leading role for the state. This is to some extent inherent in the nature of human rights, but a complex, policy oriented interpretation such as the CESCR’s can only be realised through the state. The implications of states’ weighty role in the realisation of a right to housing have implications on both a theoretical and practical level, as the final chapter in this Part reveals. Finally, although the CESCR has paid lip service to the contextual, overlapping and interdependent nature of human rights, the interpretation of the right to housing is crucially lacking in this regard. The right currently stands isolated from other human rights issues such as land reform and ownership; deep-seated issues of inequality and discrimination; and related human rights. The three clearest examples of this deficit are, first, the CESCR’s failure to meaningfully explore the connection between security of tenure and land ownership and the resultant tension between property rights and the right to housing; secondly, the insufficient examination of the role of cultural norms that reject women as land and property holders, and thus the ability of half the world to realise the right to housing; and thirdly, the interrelationship of the right to housing with other rights generally. The right to housing is not only interlaced with the right to property and the rights of women, but also the right to freedom of movement in the face of a globalising economy and an urbanising world, rights to privacy and cultural identity, and rights to work, for example. Although as a monitoring body the CESCR is not constrained by an adjudicative approach and is thus able to make these linkages freely, the CESCR has not sufficiently done so. Whether, with the coming into force of the Optional Protocol, the CESCR will have the opportunity to overcome these deficits remains an open question. IV.  INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

The International Covenant on Civil and Political Rights (ICCPR) contains no explicit right to housing. Yet, given the availability of a widely ratified Optional Protocol for individual complaints,96 and the publicity that attends its decisions, individuals and communities who find their housing rights denied or violated have attempted to harness the power of the ICCPR. To date, the Human Rights Committee (HRC), the body of experts responsible for overseeing ICCPR complaints, has resisted any efforts to imply a right to housing as such into the Covenant. The few views on individual complaints dealing with housing issues are concerned with allegations of discrimination or unlawful interference. However, there appears to be some scope for linking socio-economic conditions to the rights in the ICCPR. This possibility emerges in recent Concluding Observations on States’ Reports, and is suggested by recent views relating to the rights of minority groups under Article 27. 96  First Optional Protocol to the ICCPR (adopted 16 December 1966, entered into force on 23 March 1976).



International Covenant on Civil and Political Rights  33

A.  Discrimination, Unlawful Interference and Inhuman Treatment in Housing Discrimination or unlawful interference with a person’s housing or housing rights have been considered violations of ICCPR Articles 26 and 17. A line of cases against the Czech Republic in the context of property restitution have resulted in a finding of state violation of Article 26, which guarantees that: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In these cases, Czech citizenship was a prerequisite for claiming compensation or restitution of housing.97 In finding a violation of Article 26, the Committee’s views make clear that discrimination does not have to be attached to a right separately protected by the Covenant because discrimination itself is a violation of the ICCPR.98 This is hardly a startling conclusion, but does reinforce the connection between the experience of discrimination and the location in which it is experienced. It is Article 17, however, that provides the closest textual link to housing. Article 17(1) provides that: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 17(2) further provides equal protection of the law against such interference or attacks. Under this right, where a tenant left a protected tenancy under duress, in fear for his safety and that of his family due to discrimination based on his Serbian ethnicity,99 the Committee found a violation of Article 17 since the termination of the tenancy was arbitrary even though it complied with domestic law.100 Article 17 thus clearly has the scope to protect the enjoyment of existing housing rights. In addition to its views under the Optional Protocol, the Human Rights Committee frequently exhorts states to refrain from discrimination or arbitrary and unlawful interference in the housing of its populations in its Concluding Observations on States’ Periodic Reports. Such discrimination and interference 97  See Simunek v Czech Republic, no 516/1992 (views adopted 19 July 1995) para 11.6; Adam v Czech Republic no 586/1994 (views adopted 23 July 1996) para 12.6; Blazek v Czech Republic no 857/1999 (views adopted 12 July 2001) para 5.8; Des Fours Walderode v Czech Republic no 747/1997 (views adopted 30 October 2001) para 8.3; Gratzinger v Czech Republic no 1463/2006 (views adopted 25 October 2007) para 7.4; Richard Preiss v Czech Republic no 1497/2006 (views adopted 17 July 2008) para 7(3). 98   Adam v Czech Republic above n 97 at para 12.2. 99   Vojnovic v Croatia no 1510/2006 (views adopted 30 March 2009) para 8.7. 100   Ibid para 8.6.

34  The Right to Housing in the International Bill of Rights often includes forced evictions or relocations;101 historically generated discrim­ ination which leads to greater homelessness of minorities;102 and the denial of legal status which impacts on access to material goods as well as civil and political rights.103 The Committee often focuses on the disadvantaged, including Roma or Traveller populations;104 informal settlers;105 religious, ethnic, or racial minorities;106 and internally displaced persons.107 A particularly significant Concluding View is the 2010 observations on the State of Israel. This report illustrates the interconnections between the destruction and denial of housing and the violation of civil and political rights under the ICCPR. Here, the Committee noted that the Israeli state uses house demolitions and a discriminatory planning system in the West Bank and East Jerusalem in a way that routinely violates the Covenant. The violations include not only Articles 17 and 26, but also Article 7’s absolute prohibition on torture, cruel, inhuman and degrading treatment and punishment, and Article 23’s protection of the family as the fundamental group unit of society. The Committee states that Israel: continues its practice of demolishing property and homes of families whose members were or are suspected of involvement in terrorist activities, without considering other less intrusive measures. This practice was exacerbated disproportionately during the State party’s [recent] military intervention in the Gaza Strip . . . leading to the destruction of housing, as well as schools in the West Bank and East Jerusalem due to the absence of construction permits, their issuance being frequently denied to Palestinians. Furthermore, it is concerned at discriminatory municipal planning systems . . . disproportionately favouring the Jewish populations of these areas.108

The report illustrates how the destruction or denial of housing can be used as a tool of social control, even torture. Overall, the analysis in these views on individual complaints and Concluding Observations reveals no added socio-economic dimension, staying fully within 101   See eg UN Human Rights Committee, Concluding Observations: Uzbekistan CCPR/CO/71/ UZB (26 April 2001) para 16; UN Human Rights Committee, Concluding Observations: Kenya CCPR/CO/83/KEN (29 April 2005) para 22. 102   UN Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the Covenant: International Covenant on Civil and Political Rights: Concluding Observations of the Human Rights Committee: United States of America CCPR/C/USA/CO/3 (15 September 2006) para 22. 103   UN Human Rights Committee, Concluding Observations: Lithuania CCPR/CO/80/LTU (4 May 2004) para 16. 104   See eg UN Human Rights Committee, Concluding Observations: Germany CCPR/CO/80/ DEU (4 May 2004) para 21; UN Human Rights Committee, Concluding Observations: Greece CCPR/CO/83/GRC (25 April 2005) para 18. 105   Concluding Observations Kenya (2005) above n 101 at 22. 106   Concluding Observations Lithuania (2004) above n 103 at 16; Concluding Observations USA (2006) above n 102 at 22. 107   UN Human Rights Committee, Concluding Observations: Serbia and Montenegro CCPR/ CO/81/SEMO (12 July 2005) para 18. 108   UN Human Rights Committee, Concluding Observations: Israel CCPR/C/ISR/CO/3/CRP.1 (29 July 2010) para 17.



International Covenant on Civil and Political Rights  35

a ‘civil and political’ rights paradigm. Housing or home is the locus within which discrimination and interference are experienced, but the fact that this rights analysis occurs with regards to the home adds nothing to a right to housing per se, although it does illustrate the centrality of housing and the home to the enjoyment of other human rights. B.  Socio-economic Conditions and the Enjoyment of ICCPR Rights Whether the right to housing might be recognised as a separate right under the ICCPR can be answered by analogy to arguments raising a right to health under the Convention. The Committee has dismissed such claims, noting that ‘the right to health, as such, is not protected by the provisions of the Covenant’.109 Yet the specific wording in these decisions suggests that elements of the right to health may be examined under other ICCPR rights. And indeed, the Human Rights Committee has begun to recognise the violation of rights through the interconnections between civil and political and economic, social and cultural rights. This is a process of implying socio-economic rights directly into rights thought of as civil and political in nature. Although the work of the HRC is embryonic in this respect, several concluding reports and views on individual complaints have moved in this direction. One example is the views of the Committee in the case of Angela Poma Poma v Peru.110 Here, the state diverted water from grazing lands of indigenous farmers in the Andean altiplano to service cities on Peru’s pacific coast.111 As a result, 10,000 hectares of grazing lands dried up and thousands of head of livestock belonging to the subsistence farmers died.112 While the complaint alleged violations of Article 1(2) on the right not to be deprived of the means of subsistence, as well as Article 17’s prohibition on interference in privacy, home and family life, the Committee considered the violations to raise issues under Article 27 instead. Article 27 provides that: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

In this case, the Committee reiterated that the rights of minorities under Article 27 are distinct from and additional to the other rights in the ICCPR.113 109   Bertran v Australia 1020/2001 (19 September 2003) at para 7.7, where the Committee stated that ‘there is no such right protected specifically by provisions of the Covenant’; see also Linder v Finland 1420/2005 (28 October 2005). 110   Angela Poma Poma v Peru 1457/2006 (27 March 2009). 111   Ibid paras 2.2–2.3 112   Ibid para 7.5. 113   Ibid para 7.2.

36  The Right to Housing in the International Bill of Rights Importantly, for indigenous minorities, these rights ‘may consist in a way of life which is closely associated with territory and use of its resources’.114 This is particularly the case where that way of life is to be protected as part of the cultural rights of the minority in question, as the Committee found in this instance.115 Although one main difference between the rights protection of the ICESCR and the ICCPR is generally taken to be the full and immediate obligation to protect the rights under the ICCPR, in Poma Poma the HRC noted that it was legitimate for the state to take steps in furtherance of economic development, but that ‘the leeway the State has in this area should be commensurate with the obligations it must assume under Article 27’.116 Thus, the hope that inserting socio-economic rights claims into the ICCPR will escape the limitations of progressive realisation in the ICESCR appears misplaced. Nevertheless, here the HRC held that any measures which would ‘substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community’ depended crucially on the opportunity to participate meaningfully, ‘which requires not mere consultation but free, prior and informed consent’.117 In this case, the substantial nature of the interference and the lack of consultation evidenced a violation.118 While the Poma Poma decision clearly reflects attention to the way economic and social conditions relate to the rights under the Covenant, its reasoning hangs on the cultural rights in Article 27. Any extension of this reasoning to a right to housing would be limited in that it would cover housing only where housing was a cultural expression of a minority group, and where the inter­ ference with cultural rights (though not necessarily with housing itself) was substantial. Another, and potentially more generally applicable, approach has been to argue for an expanded interpretation of the right to life which would take within its reach socio-economic rights underlying the possibility of a right to life with dignity. While this approach has been embraced in some jurisdictions,119 the Human Rights Committee has, so far, been wary of moving in this direction. Nevertheless, there are indications that the HRC is willing to include some socio-economic goods within the right to life. For example, in its Conclusions on the 2010 Israeli Country Report, the Committee suggests that where water shortages, and denial of water infrastructure, disproportionately impact on the Palestinian population this may amount to a violation of Article 6 in addition to constituting discriminatory action.120 In the Secretariat’s Compilation of General Comments, complied in 2003, the Committee stated that the   Ibid para 7.2.   Ibid para 7.3.   Ibid para 7.4. 117   Ibid para 7.6. 118   Ibid para 7.7. 119   See further Chapter 4 on India and Chapter 3 on the Inter-American system. 120   Above n 108, para 18. 114 115 116



International Covenant on Civil and Political Rights  37 expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States Parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.121

Yet the Committee’s approach remains cautious. In Susila Malani Dahanayake v Sri Lanka, the community’s allegation that relocation to make way for a new expressway was in breach of the right to a healthy environment as a part of Article 6’s right to life was turned down by the Committee at the admissibility stage.122 Overall, any protection of a right to housing through the right to life remains some way off under the ICCPR.

121  Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (2003) UN Doc HRI/GEN/1/Rev.6 (2003) at para 5. 122   Susila Malani Dahanayake v Sri Lanka 1331/2004, Decision on Admissibility (25 July 2006).

2 The Right to Housing in Subject-Specific International Conventions I. INTRODUCTION

I

N ADDITION TO the International Covenant on Economic, Social and Cultural Rights (ICESCR) various subject-specific international conventions include an explicit right to housing. These include the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);1 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);2 and the Convention on the Rights of the Child (CRC).3 While no right to housing exists, a process of implied rights development has nonetheless emerged under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment4 (CAT). As the analysis in this chapter reveals, in the subject-specific Conventions, the right to housing tends to be of more limited scope than in the International Bill of Rights discussed in Chapter 1. This is necessarily so given the case that the right is constrained by the subject matter of the Convention. In addition, the development of a jurisprudence on the right to housing, or implied protection of housing issues, is generally only beginning to emerge in these regimes. However, each

1   International Covenant on the Elimination of All Forms of Racial Discrimination, UNGA Res 2106A(XX) (adopted 21 December 1965, entered into force 4 January 1969). 2   Convention on the Elimination of All Forms of Discrimination Against Women, UNGA Res 34/180 (adopted 18 December 1979, entered into force 3 September 1981). 3   Convention on the Rights of the Child, UNGA Res 44/25 (adopted 20 November 1989, entered into force 20 September 1990). 4   Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 39/49 (adopted 10 December 1984, entered into force 26 June 1987). In addition, see the Convention relating to the Status of Refugees (1951) UNGA Res 429/V, Art 21; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) UNGA Res. 45/158 (1990), Art 43(1)(d); ILO Convention no 169 concerning Indigenous and Tribal Peoples (1989); ILO Convention no 161 concerning Occupational Health Services (1985); ILO Convention no 117 concerning Social Policy (Basic Aims and Standards) (1962); ILO Convention no 110 concerning Plantations (1958); ILO Convention no 82 concerning Social Policy (NonMetropolitan Territories) (1947). See also the United Nations Convention on the Suppression and Punishment of the Crime of Apartheid (1973).



Convention on the Elimination of Discrimination Against Women  39

Convention provides a potential avenue for the redress of violations of a right to housing. II.  CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is something of a disappointment for those hoping that international human rights law might provide specific protection of housing rights for women, as Article 14(2)(h) includes only a limited protection for rural women’s access to adequate living conditions, ‘particularly in relation to housing, sanitation, electricity and water supply, transport and communications’. Although, in principle, many of the non-discrimination articles in CEDAW protect aspects of the woman’s relationship with the home, it might be thought anomalous that housing receives only this small mention in the treaty, given women’s exclusion from the home as a matter of law and the simultaneity of this exclusion with women’s profound connection to the home in ideology and in practice.5 The reality of these connections mean that the CEDAW Committee has the potential to illuminate women’s experience of human rights violations with regards to housing and home in particularly powerful ways, a process which is only now beginning. CEDAW’s Optional Protocol allows for individual complaints to be considered by the CEDAW Committee.6 In its 51st Session, the Committee considered for the first time a complaint under Article 14(2)(h) in the case of Cecilia Kell v Canada.7 In its merits decision the Committee did not find a violation of Article 14(2)(h): it stated that ‘the information before the Committee does not show that the act of discrimination suffered by the author is related to her originating from a rural area or that she was prevented from residing in another property in the community’,8 illustrating the limited form the right to housing takes under CEDAW. However, the case is a striking example of the centrality of the home both as a locus of protection and of violation for women. It also shows the interconnections between the enjoyment of housing and the realisation of a host of other rights. Cecilia Kell’s legal battle to realise her right to housing began in 1992, when through fraud and connivance with the local housing authority, in which he exercised a position of power,9 her abusive common law partner was able to remove Kell’s name from the document certifying her co-ownership of their   I take up these question in detail in Chapters 6 and 7.  Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women UNGA A/RES/54/4 (adopted 6 October 1999, entered into force 22 December 2000) Art 1. 7   Cecilia Kell v Canada 19/2008 (28 February 2012) CEDAW c/51/D/19/2008. 8   Ibid para 10.6. 9   Ibid para 9.1. 5 6

40  The Right to Housing in Subject-Specific International Conventions home.10 This was done without her knowledge or consent,11 despite the fact that as an Aboriginal woman Kell had the right to housing under a government sponsored scheme while her non-indigenous partner did not.12 Through a 20-year legal struggle, Kell consistently asserted her desire to regain access to the specific home from which she had been evicted. She argued that as an Aboriginal woman she had ‘a homeland and treaty right to land and a house, that she chose where to reside when she purchased her home and that she wanted security and enough space in her home for her growing family’.13 The specific arguments Kell made in the case illustrate that while women may experience the home as a site of oppression, ‘predominantly informed by discrimination and inequality’,14 the home may also remain a positive place as a site of empowerment, social and familial interaction and economic security. For Kell, the home was both the place where she experienced abuse and was subject to manipulation by her partner, and simultaneously represented space and security. In her eyes, her home even fulfilled her Aboriginal treaty right to land. At the same time, Cecilia Kell’s case shows how the enjoyment or denial of a multitude of rights intersects in the location of the home. In fact, the Committee found that Kell was subject to ‘intersectional’ discrimination. Her status as an Aboriginal, woman, and victim of domestic violence combined to put her in a position of particular vulnerability.15 The centrality of the home and house as the place where Kell sought to exercise and enjoy her rights, and where they were most comprehensively denied, is illustrated in the case. The Committee noted that the domestic violence experienced by Kell impaired her ability to exercise her property rights and access her family home.16 They thus held that her Article 16(1)(h) rights on the equal enjoyment of spouses in respect of their ownership, acquisition, management, administration, enjoyment and disposition of property were violated.17 The Committee recommended that Canada provide Kell a house of adequate size and standard, and pay compensation for the ‘material and moral damages’ caused to her.18 While the Kell case is the first to allege a violation of Article 14(2)(h), the way the case illustrates the intersections between the right to safe, adequate and secure housing and the enjoyment of other rights illuminates the role of housing in other CEDAW complaints, which at first blush do not appear to concern housing directly. This is particularly the case in domestic violence complaints.   Ibid para 2.5.  Ibid. 12   Ibid para 2.2. 13   Ibid para 9.2. 14   L Farha, ‘Is there a Woman in the House? Re/conceiving the Right to Housing’ (2002) 14 Canadian Journal of Women and the Law 118, 121. 15   Kell above n 7 at para 10.2. See also CEDAW Committee General Recommendation no 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women CEDAW/C/GC/28 (16 December 2010) para 35. 16   Kell above n 7 at para 10.2. 17   Ibid para 10.7. 18   Ibid para 11. 10 11



Convention on the Rights of the Child  41

As such, reading such cases through the lens of housing should have much to contribute to the understanding of women’s right to housing. For example, NSF v Great Britain and Ireland,19 which on its face involved a review of a negative asylum claim, raised deeper issues about the home and women’s rights to it. NSF’s ex-husband’s violence and threats had forced her first from her marital home, then from her village, and finally from her country of nationality,20 rendering her homeless in more senses than one. In the Fatma Yildirim case of 2007,21 Ms Yildirim had been hounded from her apartment by her violent husband, and attacked by him when she returned to collect personal belongings. Eventually, he stabbed her to death as she made her way from her workplace to her apartment.22 AT v Hungary also illustrates the disparity between women’s need for safe and secure housing and their right to enjoy such housing safe from the threats and abuses of domestic violence.23 In this case, the Hungarian legal authorities were unwilling to restrict the property rights of a violent partner on a property he owned jointly with the victim,24 leaving him legal access to the home despite her attempts to exclude him for her protection.25 In each of these cases, denial of meaningful rights to housing and home form the backdrop against which the denial of other rights is played out. As such, the work of the CEDAW Committee has the potential to shine a powerful light on the underexplored way housing protects or promotes a host of rights, particularly for women. Despite the Committee’s recognition of intersectionality, it has yet to explore the home as the location in which these violations intersect. I will return to consider these issues further in Part II. III.  CONVENTION ON THE RIGHTS OF THE CHILD

The Convention on the Rights of the Child (CRC) Article 27(1) provides that: States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

Moreover, housing is specifically mentioned in Article 27(3), which requires states parties to take measures to assist those responsible for a child in implementing the right. Specifically: States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.   NSF v Great Britain and Ireland 10/2005 (12 June 2007) CEDAW/C/38/D/10/2005.   Ibid paras 2.2–2.4.   Fatma Yildirim (deceased) v Austria 6/2005 (6 August 2007) CEDAW/C/39/D/6/2005. 22   Ibid paras 2.3 and 2.13. 23   A.T v Hungary 2/2003 (26 January 2005) CEDAW/C/32/D/2/2003 (2005). 24   Ibid paras 2.4 and 6.8. 25   Ibid paras 2.2–2.7. 19 20 21

42  The Right to Housing in Subject-Specific International Conventions This right, like the ICESCR’s Article 11(1) and the UDHR’s Article 25, sees the right to housing as an element of the right to an adequate standard of living. Also in common with the ICESCR is the limiting language within the provision. The state’s responsibility under the CRC arises where material need hampers the ability of a child’s parent or carer to fulfil the right. Thus, as Eide points out in relation to both Article 25 of the UDHR and Article 11(1) of the ICESCR, state responsibility is subsidiary to that of individuals, and ‘only comes into play when individuals cannot manage by themselves to secure their own or their dependants’ standard of living’.26 The CRC Committee is responsible for monitoring the implementation of the CRC rights. Like the CESCR, the CRC Committee issues General Comments to guide the interpretation of the Covenant. To date, there is no General Comment specifically on the right to housing, or on the right to an adequate standard of living. Neither has the CRC Committee made a recommendation on this issue. However, there is some attention to housing in General Comment 11 of 2009, on the Rights of Indigenous Children.27 In line with the subsidiarity principle pointed out by Eide, the Committee urges states to put in place ‘special measures’ for indigenous children to ensure that they have ‘access to culturally appropriate services in the areas of health, nutrition, education, recreation and sports, social services, housing, sanitation and juvenile justice’.28 Such positive special measures, however, have not been tied directly to material conditions but instead to data collection and the development of indicators.29 However, the Committee does exhort states to implement their commitments, including through positive provision, under Article 27 as aspects of the child’s rights to life, survival and development.30 Consideration of the meaning and content of the child’s right to housing under the CRC is further suggested in state-specific situations where the Committee has addressed this right in its Conclusions on States’ Periodic Reports. These statements on housing do not normally set broad and general principles, but instead urge the state to remedy a specific lack or abuse. For example, in 2001 the CRC Committee exhorted Bangladesh to take action to provide housing and other material needs for street children;31 in 2003 it recommended that Canada undertake further research on child homelessness and its links with child abuse, child prostitution, child pornography and trafficking;32 and in 2009 it expressed 26  A Eide, ‘Adequate Standard of Living’ in D Moeckli, S Shah and S Sivakumaran (eds), International Human Rights Law (New York, Oxford University Press, 2010) 235. 27   United Nations Committee on the Rights of the Child, Indigenous Children and their Rights under the Convention: General Comment 11 (2009) CRC/C/GC/11 (12 February 2009). 28   Ibid para 25. 29   Ibid para 26. 30   Ibid paras 34–36. 31  United Nations Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Guatemala CRC/C/15/Add.154 (9 July 2001) paras 54–55. 32  United Nations Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Canada CRC/C/15/Add.215 (27 October 2003) para 42. See also para 55 with regards to street children.



Convention on the Elimination of Racial Discrimination  43

concern about the lack of assistance available to ensure poor children were able to access housing in Malawi.33 While these statements illustrate that the CRC Committee takes a contextual view of the housing rights of children, and the interrelationship of the right with issues of poverty, abuse and social status, such general statements do not add substance to the interpretation of a right to housing itself. Despite the frequency with which concerns about conditions of poverty in states parties are reported in the Concluding Observations, housing itself tends only to be mentioned briefly. Given the Committee’s recognition of the links between material needs and the realisation of all rights in the Covenant, greater space exists for a more substantive understanding of the right to housing to appear under this Covenant, though it appears unlikely that the Committee will move in this direction as a matter of priority. In fact, recent work of the CRC Committee has focused on the implementation of the two Optional Protocols to the CRC. These are the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography34 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.35 The interconnections among material needs such as safe and secure housing, poverty, conflict, and the exploitation of children under the subject matter of both these Optional Protocols could be fruitful avenues for investigation in the quest to realise the rights of children. IV.  CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

While any jurisprudence or even statement on the right to housing in the CRC or CEDAW is only now beginning to emerge, Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) creates an individual complaints mechanism which has resulted in a handful of housing rights cases, particularly with respect to minority communities suffering discrimination with respect to housing. To date, the cases have addressed violations of the right to non-discrimination in housing as set out in Article 5(e)(iii). Article 5(e)(iii) of the CERD requires that: In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination 33  United Nations Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Malawi CRC/C/MWI/CO/2 (27 March 2009) paras 60–61. 34   Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography A/RES/54/263 (adopted 25 May 2000, entered into force 18 January 2002). 35   Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict A/RES/54/263 (adopted and opened 25 May 2000, entered into force 12 February 2002).

44  The Right to Housing in Subject-Specific International Conventions in all of 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) in particular . . . (iii) the right to housing.

In 2005, the CERD Committee decided the case of LR et al v Slovak Republic.36 This is the first of the individual complaints under CERD to add substantially to an understanding of the right to housing under the CERD, although earlier cases had considered issues of housing more marginally. For example, in FA v Norway,37 the complainant argued that his right to housing had been breached because the letting agency with which he dealt operated in a discriminatory fashion. He argued that he ‘was not at all offered the same service as ethnic Norwegians. In fact, he was offered a smaller number of vacant flats than other customers owing to his ethnic origin, yet he had to pay exactly the same fee to have access to the index cards’.38 While the case was ruled inadmissible, the Committee urged Norway to ‘take effective measures to ensure that housing agencies refrain from engaging in discriminatory practices and do not accept submissions from private landlords which would discriminate on racial grounds’.39 In LK v The Netherlands,40 the complainant argued that the state had violated his Article 5(e)(iii) rights by failing to criminally prosecute residents when he was intimidated by them in attempting to secure subsidised housing. The decision, however, focused not on a violation of that article, but on whether the state had provided adequate remedies under Article 6. In LR v Slovak Republic, the local council had initially adopted a resolution to construct low-cost housing, specifically to alleviate the inadequate housing conditions (often comprising shacks and cardboard dwellings) of the Roma population in the area.41 However, faced with a citizen’s petition against ‘the building of low cost houses for people of Gypsy origin on the territory of Dobšiná’, because it would ‘lead to an influx of inadaptable citizens of Gypsy origin from the surrounding villages, even from other districts and regions’,42 the Council passed a resolution overturning their previous decision to construct the housing. The second resolution did not explicitly refer to Roma or to Gypsies. However, it did refer to the citizen’s petition.43 Before the Committee, the state argued that the first resolution in no sense referred to the Roma;44 and that the resolution was only an internal organisational rule and therefore ‘conferred no objective or subjective rights that can be invoked before the courts or other authorities’.45 However, the Committee held that the circumstances in the   LR. et al v Slovak Republic 31/03, CERD/C/66/D/D/31/2003 (2005).   FA. v Norway 18/00, CERD/C/58/D/18/2000 (2001). 38   Ibid para 5.6. 39   Ibid para 8. 40   LK v The Netherlands 4/91, CERD/C/42/D/4/1991 (1993). 41   LR v Slovak Republic above n 36 at para 2.1. 42   Ibid para 2.2. 43  Ibid. 44   Ibid para 7.6. 45   Ibid para 7.7. 36 37



Convention on the Elimination of Racial Discrimination  45

case ‘make abundantly clear that the petition was advanced by its proponents on the basis of ethnicity and was understood as such by the council as the primary if not exclusive basis for revoking its first resolution’.46 Having established discrimination, the Committee then went on to consider the state’s argument that the resolution did not establish a concrete right to housing, merely set in motion a ‘complex process of policy development in the field of housing’.47 Dismissing this argument, the Committee held that: it would be inconsistent with the purpose of the Convention and elevate formalism over substance, to consider that the final step in the actual implementation of a particular human right or fundamental freedom must occur in a non-discriminatory manner, while the necessary preliminary decision-making elements directly connected to that implementation were to be severed and be free from scrutiny.48

Viewing the situation as a whole, the Committee held that the council resolutions amounted to the ‘impairment of the recognition or exercise on an equal basis of the human right to housing’ as protected both by Article 5(c) of the CERD and Article 11 of the International Covenant on Economic, Social and Cultural Rights.49 This decided, the Committee noted the Slovak Republic’s duty to provide an effective remedy under Section 6 of the Covenant. It also required the state to ensure that the claimants were left in no worse condition than under the Council’s first resolution, and to ensure similar violations did not occur in future.50 The importance of this case is not confined to the individual complainants. It also illustrates, as Joseph writes, that ‘the inherent complexity of the implementation of many domestic human rights policies [make it] inappropriate to focus only on the finalised enforceable policies to the exclusion of unenforceable preliminary policies’.51 Therefore, the ‘vesting’ of the right to housing occurs at an early stage in the development of a government policy, and the policy does not need to be followed through to the end for a claim to arise. In addition, by referring to the obligations in the ICESCR, the CERD Committee extended the relevance of its decision beyond the scope of the CERD itself; engaging in a dialogue with other human rights monitoring bodies. This illustrates how human rights standards developed by one body have bearing on the work of other bodies and reinforces the view of human rights as interconnected and mutually reinforcing. At the same time, by referring to the obligations in the ICESCR, the CERD Committee reinforces a hierarchical understanding of norms in the right to housing, placing the ICESCR at the pinnacle.   Ibid para 10.5.   Ibid para 10.6.   Ibid para 10.7. 49   Ibid para 10.7. 50   Ibid paras 10.10 and 10.12. 51   S Joseph, ‘The Right to Housing: Discrimination and the Roma in Slovakia’ (2005) 5 Human Rights Law Review 347, 349. 46 47 48

46  The Right to Housing in Subject-Specific International Conventions The remedy imposed by the Committee is also of note. By stating that the petitioners must not be left worse off than under the Council’s initial resolution, the CERD Committee essentially required the construction of low cost housing for the affected Roma population despite the municipality’s decision not to create such housing. However, as Claude Cahn notes, the Slovak authorities have read the remedy in the case as based on the principle of restitutio in integrum, and accordingly have argued that, as the Roma community did not have adequate housing before, the state has no duty to provide the community with it now.52 The failure of the case to result in any improvement in the living conditions of the Roma in Dobšiná is a disheartening reminder of the implications of non-enforceable human rights judgments, where rhetorical victories are celebrated while opportunities remain bleak for those who lend their names to the cause. In sum, the development of a substantive jurisprudence on the right to housing under the CERD is hampered by the fact that the questions brought before the CERD are ones of discrimination first and foremost, with the good or right denied being of secondary importance to the legal question in issue. That is, the state obligation at issue in these decisions is not one to respect, protect or fulfil a right to housing, but rather one to prohibit and eliminate racial discrimination. As such, the CERD Committee’s views have a limited capacity to advance understandings of what the right to housing is, although they play an important role in elucidating the conditions of discrimination in housing which relate to rights to equality, dignity, education, citizenship and participation, among others. V.  CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT

The Committee Against Torture has taken a brief foray into recognising the destruction and denial of housing as a violation of the Convention Against Torture (CAT). In Hajrizi Dzemajl et al v Serbia and Montenegro,53 it considered whether the destruction of a Roma settlement in a ‘racist pogrom’,54 and the Yugoslav authorities’ inaction – even acquiescence – in the burning and razing of the Roma’s houses and belongings constituted a violation of the CAT. In the case, the Roma community were attacked in response to an alleged rape of a non-Roma girl. Although most of the community had fled before the mob descended, the complainants remained hidden in a cellar while their houses and belongings were set fire to. Police stood by and took no action to prevent the destruction of Roma property, though they ‘did ensure that the fire did not 52   C Cahn ‘Slums, the Right to Adequate Housing and the Ban on Discrimination (2008) 60 Equal Rights Review 64. 53   Hajrizi Dzemajl et al v Serbia and Montenegro 161/2000 (21 November 2002) CAT/C/29/D/161/ 2000. 54   Ibid para 8.13.



Convention Against Torture  47

spread to any of the surrounding buildings, which belonged to the non-Roma’.55 The result of the pogrom was that ‘all traces of the existence of the Roma in Danilovgrad were obliterated’.56 Meanwhile, the complainants fled to the outskirts of Montenegro’s capital where they lived, at the time of the compliant, in ‘abject poverty, makeshift shelters or abandoned houses’ and were reduced to begging or scavenging.57 The Committee agreed that in these circumstances, the burning and destruction of houses constituted cruel, inhuman or degrading treatment or punishment.58 The nature of the acts was ‘aggravated’ by several facts. First, the complainants were present during the destruction; secondly, the acts were motivated by racial hate; and thirdly, as a community subject to racial and ethnic prejudice, the complainants were particularly vulnerable.59 The fact that the police stood by and took no action, despite having foreknowledge of the mob’s plans, illustrated acquiescence within the scope of Article 16.60 Moreover, the state failed to provide adequate redress, leading to a violation of Articles 12 and 13.61 In an individual opinion, two members of the Committee held that the acts in question amounted not only to cruel, inhuman and degrading treatment or punishment but also to torture.62 They advanced several criteria under which the severity of the acts met the threshold for a finding of torture, including the fact that the complainants were forced to flee in haste and with risk of severe harm to themselves and their belongings; the fact that their homes were completely destroyed; that their forced displacement led to deprived living conditions; and that they were a particularly vulnerable group entitled to greater protection than non-Roma citizens. These Committee members held that the conditions amounted to a ‘presumption of “severe suffering”, certainly “mental” but also inescapably “physical” in nature even if the victims were not subjected to direct physical aggression’. As such, the acts fell within the definition of torture.63 Although the Hajrizi Dzemajl case is the only individual petition in which the Committee has considered whether eviction or forced expulsion and the destruction of housing is a violation of the CAT, the Committee has made similar findings in its Concluding Observations on States’ Periodic Reports, notably with respect to Israel’s continuing destruction of Palestinian housing. In 2002, it noted amongst those subjects of concern that ‘Israeli policies on house demolitions may, in certain instances, amount to cruel, inhuman or degrading treatment or

  Ibid para 2.9.   Ibid para 2.13. 57   Ibid para 2.27. 58   Ibid para 9.2. 59  Ibid. 60  Ibid. 61   Ibid para 10. 62   Ibid, Individual opinions of Fernando Mario and Alejandro Gonzales Poblete. 63  Ibid. 55 56

48  The Right to Housing in Subject-Specific International Conventions punishment’ under Article 16 of the CAT.64 In 2009 it condemned Israel for resuming its practice of ‘purely punitive’ house demolitions in East Jerusalem and the Gaza Strip, noting that these may breach Article 16.65 The work of the Committee Against Torture illustrates how a state can create and perpetuate discrimination through its housing laws and policies. At the same time, the Committee’s understanding of the way these policies impact on the physical and mental state of those who are subject to them reminds us of the fundamental material and psychological need for safe and secure housing. VI. CONCLUSION

Although there are differences in the scope and construction of the right to housing under each of the CRC, CEDAW, CERD and CAT, there is one overriding commonality. This is that the right to housing is not the primary focus. Rather, attention to housing is expressed only through the violation of the rights that form the main focus of the Convention. As such, the protection of housing in the Conventions appears as a pathway to or from the realisation of another overriding human rights goal, rather than as a right for its own sake. Though the right to housing can be found in these subject-specific human rights Conventions, it is unclear what the right actually adds to the human rights principles contained in the Conventions, other than a recognition that housing can be a locus of human rights violation, and at the same time, a material good important in human rights protection. Under CERD, the question is one of discrimination, with housing merely the locus in which such discrimination is experienced and observed. The same is true for the CRC, where housing is seen as a building block of the child’s development and well-being. The right to housing in CEDAW is even more limited, as it applies only to rural women. Nevertheless, the cases focusing on domestic violence could provide an opportunity for the CEDAW Committee to illustrate the fundamental physical and psychological importance of housing, as the Committee Against Torture has been able to in its work. It is in the area of remedies that the appeal of the subject-specific human rights conventions lies for those whose human rights to housing are violated. As the CERD Committee’s decision in LR v Slovak Republic indicates, a finding of violation may lead the Committee to order that the complainant be provided with a dwelling itself. The possibility of such a material remedy is a powerful motivator for those who are homeless, who live in insecure or unsafe housing, or who are denied the material conditions of a good life. 64  United Nations Committee Against Torture, Concluding Observations Periodic Report Submitted by Israel CAT/A/57/44 (25 September 2002) para 52(j). 65  United Nations Committee Against Torture, Concluding Observations on Periodic Report Submitted by Israel CAT/C/ISR/CO/4/ (23 June 2009) para 33. See also B Farrell, ‘Israeli Demolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation 119’ (2002) 28 Brooklyn Journal of International Law 871, 884–91.

3 The Right to Housing in Regional Covenants I. INTRODUCTION

R

EGIONAL COVENANTS GOVERN human rights obligations in the Americas, Europe, Africa and under the League of Arab States. Each system is distinct both in the rights protected and methods by which that protection is ensured. Some regional Covenants include an express right to housing. These are the Revised European Social Charter and the Arab Charter of Human Rights. Some regional systems have given rise to an implied right to housing, such as the African Charter on Human and Peoples’ Rights and the Inter-American human rights system. In this chapter, I examine those Covenants which include either an explicit right to housing, or have implied such a right through other rights. II.  THE RIGHT TO HOUSING IN EUROPE

The protection of human rights in Europe is considered one of the Council of Europe’s major achievements.1 These protections are partly located in the Convention for the Protection of Human Rights and Fundamental Freedoms,2 more commonly known as the European Convention on Human Rights (ECHR), and the European Social Charter,3 now updated and revised, to include the Revised European Social Charter (RESC).4 Individual complaints under the ECHR have alleged the violation of a number of rights related to the enjoyment or realisation of the right to housing, but it is under the RESC that a substantial body of jurisprudence on the right to housing itself has developed. The European Union’s powerful role in regional, and domestic, affairs gives it the 1   S Greer, ‘Europe’ in D Moeckli, S Shah and S Sivakumaran (eds), International Human Rights Law (New York, Oxford University Press, 2010) 456. 2   Convention for the Protection of Human Rights and Fundamental Freedoms CETS no 005 (opened for signature 4 November 1950, entered into force 3 September 1953). 3   European Social Charter CETS no 035 (opened for signature 18 October 1951, entered into force 26 February 1965). 4   European Social Charter (Revised), (1999) CETS no 163 (opened for signature 3 May 1996, entered into force 1 July 1999).

50  The Right to Housing in Regional Covenant potential for significant impact on the right to housing in Europe, and the incorporation of the Charter of Fundamental Rights of the European Union into the Treaty of Lisbon in 20095 makes the right to social assistance – including housing – legally operational in the European Union. However, it has yet to become a body with a particular interpretive approach to the right to housing.6 A.  Revised European Social Charter (i)  The Scheme of Rights Protection under the RESC Economic and social rights in the Council of Europe are enshrined in the European Social Charter, now updated and including the Revised European Social Charter (RESC). In force since 1999, the RESC expands the labour rightsoriented 1961 European Social Charter. This Revised Charter, intended to be complementary to the ECHR, has enjoyed the status of poor relation to the ECHR throughout its life for various reasons. There is a general lack of political commitment to the realisation of the rights under the Charter.7 At the same time, there is a lack of public awareness about the Social Charter at least in the Anglophone world, although this is not the case elsewhere in Europe: as Régis Brillat writes, the decisions of the RESC are ‘widely spread through the media in France, where the European Committee of Social Rights now occupies a significant place in the human rights landscape’.8 The root cause of the RESC’s second-class status, however, is the lack of a direct enforcement mechanism of the rights. No court is available to adjudicate claims arising from the rights in the Charter. Rather, the European Committee of Social Rights (the Social Committee) oversees regular periodic country reports, and makes recommendations based on its conclusions. The Conclusions are forwarded to the Council of Europe’s Committee of Ministers and are also made public. If the Committee of Ministers deems it appropriate, it may then make a recommendation to a state that it take specific measures to redress concerns.9 An optional collective complaints mechanism came into force in 1998.10 Under the Protocol, the Committee will consider complaints brought by recognised trade unions and NGOs, and make an assessment under Article 4 as to whether the state party has ensured the satisfactory application of the Charter. The collective complaints procedure was designed to act in complement to,   Charter of Fundamental Rights of the European Union [2008] OJ C115/01.   But see P Kenna, Housing Law, Rights and Policy (Dublin, Clarus Press, 2011) 562–67.   AT Briggs, ‘Waking “Sleeping Beauty”: the Revised European Social Charter’ (2000) 7 Human Rights Brief 51. See also R Churchill and U Khaliq, ‘The Collective Complaints System of the European Social Charter: an Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417, 445–54. 8  R Brillat, ‘The Effective Implementation of the Right to Housing of Homeless or Poorly Housed Persons: the Role of the European Social Charter’ (2008) Homeless In Europe 7, 8. 9   European Social Charter, Part IV. 10  Additional Protocol to the European Social Charter providing for a System of Collective Complaints ETS no 158 (opened for signature 9 November 1995, entered info force 1 July 1998). 5 6

7



The Right to Housing in Europe  51

rather than separation from, the Periodic Reports, and the Committee relies on its Concluding Reports in its collective complaint decisions, and vice versa.11 The process of resolving a complaint is designed to be one of ‘constructive dialogue’, but nonetheless, it will culminate in the Social Committee ‘sitting in judgment upon the State’s compliance’.12 As Robin Churchill and Urfan Khaliq write, the Committee’s role under the Optional Protocol ‘is essentially a quasi-judicial one, applying law to the facts to reach a considered conclusion’.13 But the Social Committee reminds its petitioners that it ‘has no authority to entertain individual situations nor to make any assessment or impose measures on the Government’.14 The determination made by the Committee must thus be about the general application of the RESC in the state, not about violation in a particular case.15 As Holly Cullen notes, this means there is no requirement for ‘a victim’.16 In turn, however, it is difficult for the Social Committee to respond to situations of individual hardship or deprivation, despite the fact that the Committee allows individual situations to illuminate the substance of collective complaints.17 Further, it remains the role of the Committee of Ministers to make a final determination of the complaint. Although the Protocol stipulates that the Committee of Ministers shall make recommendations when the Social Committee finds a state in non-compliance, in practice, the Committee of Ministers ‘has not regarded itself as bound’ and the decision whether or not to follow up is taken as a political one.18 To date, any recommendations emanating from the Committee of Ministers normally take the form of an invitation to the recalcitrant state to make a report on its follow up actions to the Committee of Ministers. Even in the most egregious situations, such as France’s decision to expel Roma communities from its territory in the summer of 2010, the Committee of Ministers’ response has been muted.19 Nevertheless, examining the Social Committee’s decisions reveals that it is creating a consistent and coherent body of jurisprudence. It crafts its decisions with an eye to the work of other international human rights bodies, including the CESCR and the European Court of Human Rights, and displays a willingness to take broad interpretations of the RESC rights. 11   H Cullen, ‘The Collective Complaints System of the European Social Charter: Interpretive Methods of the European Committee of Social Rights’ (2009) Human Rights Law Review 61, 63. 12   Churchill and Khaliq, ‘The Collective Complaints System of the ESC’ above n 7 at 448. 13   Ibid 437. 14   International Movement ADT Fourth World v France (ESCR Case no 33/2006), Decision on merits, 5 December 2007, para 53. 15   SAIGI-Syndicat des Hauts Fonctionnaires v France (ESCR Case no. 29/2005), Decision on admissibility, 14 June 2005. 16   Cullen, ‘The Collective Complaints System of the ESC’ above n 11 at 64. 17   Ibid 67. 18  Ibid. 19   See eg Resolution CM/ResChS (2011) 9 Collective Complaint no 63/2010 by the Centre on Housing Rights and Evictions (COHRE) against France (adopted by the Committee of Ministers on 9 November 2011 at the 1125th meeting of the Ministers’ Deputies).

52  The Right to Housing in Regional Covenant Interestingly, while housing and matters related to housing have remained peripheral in many human rights documents, they have been central to the complaints made under the RESC. As such, determinations of the right to housing are proving to be fundamental to the development of social rights in Europe. The Social Committee recognises the complexity of the right to housing and the challenges and financial burdens it can impose on states.20 In Autism Europe v France,21 the Committee set out three criteria on which it would measure the compliance of states with particularly expensive or difficult to achieve rights. First, states must act within a reasonable timeframe. Secondly, they must make measureable progress towards realisation. Thirdly, there must be evidence of financing consistent with the state’s maximum use of available resources.22 The Committee also invokes the CESCR’s interpretation of Article 11(1) of the ICESCR, and states that it is anxious to ensure that interpretation of the RESC is congruent with the provisions of the European Convention on Human Rights.23 The rights protection in the RESC is characterised by a ‘pick and mix’ approach to the provisions. Parties must choose to become legally bound by some, but need not choose all, of the rights, which are made up of both ‘core’ and ‘non-core’ rights.24 Attention to housing rights is included in several of the Charter’s provisions. The right to housing itself is included under Article 31 and reads: With a view to ensuring the effective exercise of the right to housing, the parties undertake to take measures designed: 1. to promote access to housing of an acceptable standard; 2. to prevent and reduce homelessness with a view to its gradual elimination; 3. to make the price of housing accessible to those without adequate resources.

The standard set out in Article 31 imposes three obligations. The first, under Article 31(1), is to promote access to housing that meets an acceptable standard. The obligation in Article 31(2) is one of prevention and reduction of homelessness, which can be seen as the inverse of Article 31(1). Article 31(3) then concerns the affordability of housing for those without adequate resources. To date, subscription to this non-core right has been low, with 12 of a possible 43 states parties accepting legal obligations under Article 31(1) and (2), and

20   Secretariat of the Social and Economic Committee of the Council of Europe, Digest of the Case Law of the ESCR (2008) 348. 21   Autism Europe v France (ESCR Case no 13/2002), Decision on merits, 4 November 2003. 22   Ibid para 53. 23   Digest of the Case Law of the ESCR above n 20. 24   Parties to the Revised Charter must subscribe to at least six of nine ‘core’ Articles and 16 of the 31 ‘non-core’ Articles, or 63 of 98 numbered paragraphs. The system is explained in U Khaliq and R Churchill, ‘The European Committee of Social Rights: Putting Flesh on the Bare Bones of the European Social Charter’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 429–30.



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nine parties under Article 31(3).25 Because of this low subscription rate, Article 16’s more widely ratified housing protection has taken on increased significance. This right falls within the ‘core’ rights of the RESC, and provides a complaints mechanism related to housing when states have not elected to be bound by Article 31 itself. Article 16 is the most general of the housing rights provisions in the RESC, stating that: With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.

The Committee held early on that although Articles 16 and 31 are different in both personal and material scope, they give rise to overlapping obligations. Importantly, the Committee views the notions of adequate housing and forced eviction as identical under Articles 16 and 31.26 This statement represents a bold move on the part of the Committee to hold states to account, giving meaning to the Convention as a whole rather than taking the piecemeal approach which might be suggested by the ‘pick and mix’ nature of the provisions.27 The Committee’s stance on Article 16 appears to import the requirements of Article 31 into any case where the complainants include families. Other articles also contain more limited rights to housing. Article 15 protects the rights to housing of the physically and mentally disabled, Article 19 covers migrant workers and housing, Article 23 protects housing for the elderly, and Article 30 provides protection against poverty and social exclusion, including effective access to housing. In addition, Article E, on non-discrimination, states that: The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status

and has frequently been invoked in the context of housing rights cases. To date, the cases on the right to housing decided by the Social Committee address three main issues. The first is the failure of a state’s housing policies to 25   Council of Europe, Acceptance of Provisions of the Revised European Social Charter (1996) (2010), available at www.coe.int/T/DGHL/Monitoring/SocialCharter/Presentation/ProvisionTable RevJuly2012_en.pdf (current to July 2012). 26   European Roma Rights Centre (ERRC) v Greece (ESCR Case no. 15/2003), Decision on merits, 7 February 2005, para 17. 27   The approach has been followed in other cases with regard to other ‘overlapping’ provisions. For example, in Defence for Children International (DCI) v The Netherlands (ESCR Case no 47/2008), Decision on merits, 20 October 2009, the Committee held that Art 17, on the right of young persons to social, legal and economic protection, was identical in scope to Art 31 for the purposes of the question of violation in that case (para 71).

54  The Right to Housing in Regional Covenant address situations of particular vulnerability. The second addresses the issue of housing restitution. The third, and most litigated to date, is the active discrim­ ination faced by Roma communities in the area of housing. (ii)  State Housing Policy and Vulnerability There are several cases holding states to account for their failures in housing policy, specifically with regard to marginalised and vulnerable communities. ADT v France 28 and FEANTSA v France 29 were important early cases which set out the Committee’s approach to housing rights realisation under the RESC. In these cases, two NGOs challenged the French state’s housing policies and their implementation, arguing that French housing policy failed the most disadvantaged. In both ADT v France and FEANTSA v France, the Committee referred with familiarity to the ICESCR’s interpretation of the right, and stated that it ‘attaches great importance to General Comments 4 and 7 . . . [and has] paid close attention to and greatly benefited from the work of the United Nations Special Rapporteur on the Right to Adequate Housing’.30 In ADT v France the Committee held unanimously that France had violated Article 31(2) and (3) of the RESC. Although the French state had enacted significant legislation on the right to housing, it had not implemented this legislation, which had in any case failed to target the most disadvantaged citizens.31 Further broadening the scope of Article 31, the Committee stated that it: agrees that the actual wording of Article 31 of the Charter cannot be interpreted as imposing on states an obligation of ‘results’. However, it notes that the rights recognised in the Social Charter must take a practical and effective, rather than purely theoretical, form.32

In FEANTSA v France, the petitioners focused on the abysmal living conditions faced by France’s poorest, including lack of basic and essential services, overcrowding and homelessness.33 The Committee focused significant attention on France’s failure to reduce homelessness; build sufficient social housing (noting with disapproval that state contribution to the private housing sector had risen while contribution to the public sector had dropped)34; provide basic services and amenities to a significant portion of the population; ensure Travellers, Roma and migrant families were not discriminated against in gaining access to housing; and provide housing for the most marginalised. It unanimously found a violation of Article 31(1), (2) and (3). 28   International Movement ADT Fourth World v France (ESCR Case no 33/2006), Decision on merits, 5 December 2007. 29   European Federation of National Organisations Working with the Homeless (FEANTSA) v France (ESCR Case no 39/2006), Decision on merits, 5 December 2007. 30   ADT v France above n 28 at para 71; FEANTSA v France above n 29 at para 67. 31   ADT v France above n 28 at paras 83, 100, 130 and 153. 32   Ibid para 59. 33   FEANTSA v France above n 29 at paras 68–72. 34   Ibid para 119.



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FEANTSA v France also includes a definition of adequate housing. Such housing requires: a dwelling which is safe from a sanitary and health point of view, that is, possesses all basic amenities, such as water, heating, waste disposal, sanitation facilities and electricity; is structurally secure; not overcrowded; and with secure tenure supported by the law.35

The definition takes account of the web of material and legal protections that make up adequate housing, and has been applied and further fleshed out in subsequent cases. For example, in the recent case of ERRC v Portugal, the Committee considered the right to adequate housing to include a right to fresh water sources.36 In addition, FEANTSA v France includes a definition of affordable housing, which a state must ensure is available for those with only limited financial resources. Housing is affordable if the household can afford to pay, first, initial costs such as a deposit or advance rent; secondly, current costs such as rent or mortgage and the added expenses such as utilities on a continuing basis; and thirdly, can afford to fulfil these first two needs without compromising minimum standards of living as defined within the society in question.37 Moreover, in order to comply with the RESC the state must fulfil a mulitpart test. It must, first, adopt any necessary legal, financial or other operational methods to work steadily towards achieving the Charter’s goals. Secondly, states must keep appropriate and ‘meaningful’ statistics. Thirdly, they must undertake periodic reviews of implementation. Fourthly, they must put in place a timetable for achievement of the right, and not ‘defer indefinitely’ its realisation. Finally, they must carefully consider the effects of the programmes, particularly on the most vulnerable.38 The Committee has consistently referred to the principles set up in these two cases in subsequent merits decisions, despite the fact that the Committee does not operate under a system of binding precedent.39 The FEANTSA case has been described by those involved as ‘groundbreaking’,40 particularly in its attention to outcomes, rather than merely conduct, and in its contribution to the definition of housing rights in ‘a tangible and quantifiable way’.41 Moreover, the FEANTSA case had a broader impact. The ongoing case, and the publicity it generated, was an impetus for the French state’s proposal of   Ibid para 76.   European Roma Rights Centre v Portugal (ESCR Case no 61/2010), Decision on merits, 30 June 2011, para 36. 37   FEANTSA v France above n 29 at para 124. 38  Ibid. para 56. 39   It is, however, like the Strasbourg Court, subject to a principle of legal certainty. See Christine Goodwin v United Kingdom (App no 28957/95), ECHR, Judgment, 11 July 2002 (2002) 35 EHRR 18 at para 74. 40  P Kenna and M Uhry, ‘FEANTSA v. France: Collective Complaint on Housing Rights at Council of Europe’ (2008) 5(3) Housing and ESC Rights Law Quarterly 1. 41   Ibid 3. 35 36

56  The Right to Housing in Regional Covenant the Bill that ultimately became the Droit au lodgement opposable (DALO): the opposable housing right at the national level.42 Another recent case focusing on the housing rights of the most vulnerable is DCI v The Netherlands.43 In this case, DCI alleged that children not lawfully present in the Netherlands were excluded by law and in practice from the right to housing. DCI argued that housing, like health care (as in the Committee’s decision in the earlier case of FIDH v France)44 is a prerequisite for the protection of human dignity, and thus that legislation and/or practice that denies housing to people, even those not lawfully in the state’s territory, is a contravention of the RESC.45 DCI focused their argument specifically on the housing rights of children, and argued that the RESC should be interpreted by the Committee in light of the Netherlands’ obligations under the Convention on the Rights of the Child.46 The Committee agreed that it reads the RESC ‘in light of’ relevant international instruments’47 and that it was ‘entirely justified’ in having regard to the CRC when ruling on questions under the RESC.48 Moreover, it considered itself bound by the principle of the best interests of the child, set out in the CRC Committee’s General Comment 5.49 However, the Committee still faced the question of whether Article 31 applied to non-nationals unlawfully present in a state party. While the Committee noted that states may legitimately control entry, they also noted that whatever their status, minors must be given basic care, and intolerable living conditions must not be ignored.50 However, the Committee held that the denial of adequate housing to children who were unlawfully present in the state would not automatically result in intolerable living conditions.51 Moreover, it held that ‘to require that a Party provide such lasting housing would run counter to the State’s aliens policy objective of encouraging persons unlawfully on its territory to return to their country of origin’.52 As such, they held that on this count, Article 31(1) did not apply.53

42   K Olds, ‘The Role of Courts in Making the Right to Housing a Reality Throughout Europe: Lessons from France and the Netherlands’ (2010) 28 Wisconsin International Law Journal 170, 190. See also Droit au lodgement opposable (DALO) Act 2007 (France). 43   DCI v The Netherlands above n 27. 44   International Federation of Human Rights Leagues (FIDH) v France (ESCR Case no 14/2003), Decision on merits, 8 September 2004, paras 26–32. 45   DCI v The Netherlands above n 27 at para 19. 46  Ibid para 23. 47  Ibid para 27. 48  Ibid para 28. 49   Ibid para 29. See United Nations Committee on the Rights of the Child, General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44 para. 6): General Comment 5 (2003) CRC/GC/2003/5 (27 November 2003) paras 45–47. 50   DCI v The Netherlands above n 27 at para 44. 51  Ibid. 52  Ibid. 53   Ibid para 45.



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On the alleged violation of Article 31(2) through the state’s failure to prevent or reduce homelessness by not providing shelter to children who were unlawfully in the Netherlands, the Committee stressed that this provision was aimed specific­ally at the protection of the vulnerable,54 and that this group would include children regardless of their residence status. Thus, Article 31(2) applied.55 On this narrower ground, the Committee held that where the vulnerable category of persons concerned are children unlawfully present in the territory of a state, preventing homelessness requires states to provide shelter of a standard according with human dignity,56 as long as the children are in its jurisdiction.57 Thus, illegality of status in the state did not absolve the Netherlands of its obligations under Article 31(2), although it was not held to the wider obligations of Article 31(1). Moreover, the Committee held that for children unlawfully present in the state, eviction from shelter should be prohibited, given that no other shelter or accommodation would normally be available, leaving the children in ‘a situation of extreme helplessness which is contrary to the respect for their human dignity’.58 These conditions had not been met, leaving the state in violation of Article 31(2). Besides the tensions between international obligations and regional human rights treaties raised by the DCI v The Netherlands case, the merits decisions of the European Social Committee are also beginning to tackle tensions specific to the right to housing. These include the issues raised when the right to housing comes into conflict with a right to property. It is to the cases on property restitution and the right to housing to which I now turn. (iii)  Housing Restitution After the break-up of the Soviet Union, many Eastern European countries were faced with the difficult question of how to balance the rights to housing and property of those who gained their housing through the state, and those who had previously lost it to the state. In some countries, wars and violent conflicts have also played a part in laying the backdrop for competing claims to housing under different paradigms of occupation and ownership. The European Social Committee has examined complaints on these complex and fraught matters in several cases. The cases are not simply balancing exercises between the property rights of previous owners and the occupancy rights of the current dwellers, because both sets of claimants have both property and housing rights at play. As such, the cases raise difficult conceptual and practical issues for the Committee. To date, the two cases in this area have not resulted in statements of general principle as   Ibid para 46.   Ibid paras 47–48. 56   Ibid para 63. 57   Ibid para 61. 58   Ibid para 63. 54 55

58  The Right to Housing in Regional Covenant they have in the cases on vulnerability discussed above, or on Roma rights, discussed below. However, they remain important indicators of the breadth of issues within the right to housing. In the first of the housing restitution cases, FEANTSA v Slovenia,59 FEANTSA alleged violation of Articles 16 and 31 alone or in conjunction with Article E on non-discrimination, on the ground that Slovenia had failed to ensure an effective right to housing for its residents, particularly families, in the context of privatisation and denationalisation of the housing sector. Particularly at issue was the protection offered by the ‘Housing Right’ under national legislation. This civil right guaranteed ‘permanent and uninterrupted usufruct’60 of the dwellings, and had been held by the Slovenian Constitutional Court to be akin to the right of ownership, rather than to leasehold.61 However, exceptions and limitations to the scheme over the years brought the dwellers under the ‘Housing Right’ into conflict with previous owners, who were able to claim restitution rights over their flats.62 In addition, the advantages granted to ‘Housing Right’ tenants were gradually narrowed.63 In the submission of FEANTSA, the worsening situation of ‘Housing Right’ tenants represented a violation of Article 31(1).64 The Committee’s decision comprises only a few paragraphs, beginning with the statement that while the situation of tenants in Slovenia pre-1991 clearly amounted to an effective right to housing, and remained so for some categories of tenant or dweller: as regards former holders of the Housing Right over flats that have been restored to their private owners, the combination of insufficient measures for the acquisition or access to a substitute flat, the evolution of the rules on occupancy and the increase in rents, are . . . [now] likely to place a significant number of households in a very precarious position, and to prevent them from effectively exercising their right to housing.65

The Committee unanimously found violations of Article 31(1) and (3). It set out that affordability must be ensured not to the average person, but to the poorest applicant, and that this requirement was not met in Slovenia, particularly for elderly tenants who had been stripped of their Housing Right and denied opportunities to purchase the flat or move to another one on advantageous terms.66 A majority of the Committee also held (under Article 31(3) in conjunction with Article E) that the different treatment afforded to tenants whose homes had been claimed by previous owners seeking restitution, from 59   European Federation of National Organisations Working with the Homeless (FEANTSA) v Slovenia (ESCR Case no 53/2008), Decision on merits, 8 September 2009. 60   Ibid para 40. 61  Ibid. 62   Ibid para 44. 63   Ibid paras 16–18. 64   Ibid para 54. 65   Ibid para 70. 66   Ibid para 72.



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those whose homes were not so claimed, was ‘manifestly discriminatory’ given that there was ‘no evidence’ of any relevant difference between the two types of tenants.67 Given the complex and developing nature of the legislative scheme, the social and political history evident behind the complaint, and the marked tensions between a right to restitution as a property right and a right to housing in the case, the decision merely hints at the deeper issues at play. One of these hints lies in the fact that while the Committee unanimously agreed that a violation of Article 31 had occurred, given the stripping-back of rights and protections of ‘Housing Right’ holders under Slovenian law, the question of whether this amounted to discriminatory conduct was more contentious. No dissents or minority opinions are available to elucidate this issue, but historical issues of discrimination and fairness could well underlie the Committee’s views on the interplay between property restitution, the civil ‘Housing Right’ of the previous state regime, and the violation of Article E. The unresolved tension in FEANTSA v Slovenia between a right to housing and a right to property was also evident in COHRE v Croatia.68 This case concerned the loss of ‘special occupancy rights’ of ethnic Serbs and other minorities in state-owned housing. The war and break-up of the former Yugoslavia led to massive population displacements, and the confiscation of socially owned housing units. While the legal landscape after the conflict included provisions for return, or for compensation, many ethnic Serbs and other minorities missed crucial legislative deadlines, and were unable to claim their former homes. COHRE argued that the loss of these ‘special occupancy rights’, and the failure of Croatia to provide adequate redress, constituted a continuing violation of the right to housing under the RESC, and thus of families to enjoy social, legal and economic protection under Article 16. Moreover, it alleged that the cancellation of these rights and the lack of restitution were discriminatory.69 In addition to disputing the facts, Croatia argued that social rights such as Article 16 cannot be interpreted ‘so as to guarantee the right to ownership or to enjoy property rights, or the right of compensation for deprivation or limitation of ownership or property rights, or the right to a specific home’.70 The Committee agreed that Article 16 did not grant specific rights of ownership of a particular piece of property, nor a right to enjoy property analogous to that in Protocol 1 Article 1 ECHR. Thus, the state would not be required to provide full and complete restitution for the unjustified deprivation of property rights.71 In addition, Article 16 does not confer a right of restitution.72 However, the Committee did note that in certain cases, Article 16 encompasses elements   Ibid para 74.   Centre on Housing Rights and Evictions (COHRE) v Croatia (ESCR Case no 52/2008), Decision on merits, 22 June 2010. 69   Ibid para 28. 70   Ibid para 6. 71   Ibid para 60. 72   Ibid para 72. 67 68

60  The Right to Housing in Regional Covenant of the right to property.73 Pertinently, the majority of the Committee stated that the right to housing requires security of tenure. As such, the state would need to provide an alternative house with secure tenure in order to comply with its obligations.74 Moreover, there was a positive obligation to take appropriate steps to provide housing and secure tenure to both those families who lost housing rights and expressed a clear desire to return, and those who had been discouraged from return due to lack of housing protection.75 Assessing the state’s progress towards meeting its own legislative goals for returnees, the Committee held that the housing programme had not been implemented within a reasonable timeframe.76 Finally, the Committee addressed the allegations of discrimination against ethnic Serbs. It held that the delays and uncertainty that accompanied the implementation of the housing programme, coupled with the fact that the displaced families were in a situation of heightened vulnerability, and seen in light of the fact that most of the families who were affected by non-satisfaction of housing needs were ethnic Serbs – thus prone to discrimination – revealed a violation of Article 16.77 Although the Committee was unanimous on the fact that Article 16 was violated, there were five dissents in the case. In particular, there were differences of opinion on how Article 16 should be interpreted when both property rights and housing rights were at play. For example, Social Committee members Jimena Quesada, Harutyunyan and Strangos disagreed that Article 16 of the RESC was not analogous to Protocol 1 Article 1 of the ECHR, holding that to argue otherwise was ‘detrimental to the indivisibility of all fundamental rights’.78 Moreover, there were concerns as to why those not wishing to return to Croatia were not entitled to the same rights as those who wished to return, but who had not done so.79 Finally, the dissents did not agree with the remedy in the case. They argued that an effective remedy could only be met through compensation and restitution. In sum, the dissents in COHRE v Croatia illustrate that a more considered take on the relationship between housing rights and property rights and between the RESC and the ECHR and its protocols is needed for a full understanding of the right to housing under the RESC. (iv)  Roma Rights The appalling housing conditions facing Roma, Sinti and Traveller communities in many parts of Europe have frequently been brought to the attention of the   Ibid para 60.   Ibid para 55.   Ibid para 62. 76   Ibid para 84. 77   Ibid para 87. 78   Ibid, Dissent of Jimena Quesada, Harutyunyan and Strangos. 79   Ibid, Dissent of Jimena Quesada, Harutyunyan and Strangos and of O’Cinneide and Petman. 73 74 75



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European Social Committee, which has found a violation under one or more of Articles 16, 31 and Article E in all of the admissible cases. In addition, in these cases the Committee has devised a number of innovative measures to convey its particular disapproval of state’s conduct. These include the concept of an aggravated violation of the Charter, and the use of Article 31’s standards of forced eviction and adequate housing to further states’ obligations under Article 16. Nevertheless, despite the Committee’s strong stance on the right to housing for Roma, a number of ‘repeat offender’ states, most notably France and Italy, have been subject to follow up complaints.80 Such follow up initiatives illustrate the fact that the right to housing remains unrealised for many Roma across Europe. This is an indication of the problems of enforcement accompanying the rights under the RESC, despite the fact that as a matter of normative development, the right to housing as interpreted by the European Social Committee is now highly developed. The first case to discuss a violation of the right to housing on the merits was European Roma Rights Centre (ERRC) v Greece,81 which concerned the allegation that the Roma in Greece were denied adequate housing under Article 16. The complainants argued that they were discriminated against in housing matters, and were often subject to forced eviction. Specifically in issue were the provisions of two Ministerial Decisions which the ERRC argued amounted to racial segregation, social exclusion and confinement to inadequate housing for the Roma population.82 The Committee held that the nature of the camping sites and the temporary accommodation provided, and the manner in which evictions were carried out, were all in violation of Article 16. It defined adequate housing as requiring: ‘not only a dwelling which must not be sub-standard and must have essential amenities, but also . . . a dwelling of suitable size considering the composition of the family in residence. Furthermore the obligation to promote and provide housing extends to security from unlawful eviction’.83 Similarly, in European Roma Rights Centre (ERRC) v Bulgaria,84 large percentages of the Roma population were found to be living in ‘hovels’ and ‘shacks’, and Roma communities were physically segregated from the mainstream population by concrete or metal barriers. Forced eviction and lack of secure tenure were common.85 The ERRC argued that these living conditions amounted to a violation of Article 16, alone or in conjunction with Article E on non-­ discrimination. 80   See eg Centre on Housing Rights and Evictions (COHRE) v Italy (ESCR Case no 58/2009), Decision on merits, 25 June 2010, which was a follow on case to push implementation of housing rights for Roma after European Roma Rights Centre (ERRC) v Italy (ESCR Case no 27/2004), Decision on merits, 21 December 2005. 81   ERRC v Greece above n 26. 82   Ibid para 11. 83   Ibid para 16. 84   European Roma Rights Centre (ERRC) v Bulgaria (ESCR Case no 31/2005), Decision on merits, 18 October 2006. 85   Ibid paras 23–24.

62  The Right to Housing in Regional Covenant The Committee initially faced Bulgaria’s argument that the right to housing contained in Article 16 was ‘considerably more limited’86 than the right in Article 31. However, relying on its interpretation of the right to housing in ERRC v Greece, the Committee held that although Articles 16 and 31 differed in their personal and material scope, they were nevertheless ‘identical’ with respect to the notions of adequate housing and forced eviction.87 As a result, what was an ‘almost peripheral’ reference to housing88 has become a central plank in the European Social Committee’s approach to the rights in the Charter. Regarding forced evictions, the Committee held that evictions were carried out in contravention of Article 16 in that they rendered the evictees homeless. Moreover, Article 16, in conjunction with Article E, was also violated because the Roma were disproportionately unable to access the legislation on legalisation of informal dwellings, in which the overwhelming majority of Roma live.89 On the issue of substandard living conditions, the Committee took account of the many state schemes aimed to alleviate the depressed housing situation of the Roma, and of Bulgaria’s argument that ‘the whole Bulgarian population suffers from residential problems’.90 Nonetheless and even incorporating a ‘margin of appreciation’,91 the Committee held that, notwithstanding the ‘clear political will’ of the state these measures had failed to result in the significant improvements required.92 Thus, the Committee held Bulgaria to significant positive obligations regarding the right to housing under the RESC, despite the state’s decision not to ratify the specific provision on the right to housing. The Committee has also considered cases alleging a violation of the right to housing directly under Article 31, such as in European Roma Rights Centre (ERRC) v Italy.93 Here, the issues before the Committee concerned the inadequate living conditions provided in camping sites for Roma who follow an itinerant lifestyle, the systematic eviction of Roma from illegally occupied sites and dwellings, and the lack of permanent dwellings meeting an adequate standard for those Roma who wished to settle.94 The Committee found violations of Article 31 on all grounds. After stressing the importance of the physical adequacy of housing, the Committee went on to address the issue of discrimination, stating that by continuing to place Roma in segregated camps ‘the   Ibid para 13.   Ibid para 17. 88   Khaliq and Churchill, ‘Putting Flesh on Bare Bones’ above n 24 at 448. 89   ERRC v Bulgaria above n 84 at 57. 90   Ibid para 29. 91   The incorporation of a ‘margin of appreciation’ from ECtHR reasoning into the jurisprudence of the Social Committee is an interpretive development which commentators note as ‘potentially worrying’. See A Nolan, ‘Guaranteeing the Right to Adequate Housing of Roma in Bulgaria: a European Decision’ (2007) 4 Housing and ESC Rights Law Quarterly 7, 8. This principle has been applied in subsequent decisions, see European Roma and Travellers Forum (ERTF) v France (ESCR Case no 64/2011), Decision on merits, 24 January 2012, para 105. 92   ERRC v Bulgaria above n 84 at paras 38–39. 93   ERRC v Italy above n 80. 94   Ibid para 12. 86 87



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Government has failed to take due and positive account of all relevant differences, or adequate steps to ensure their access to rights and collective benefits that must be open to all’.95 Moreover, the government had been unable to refute the allegation that evictions had been carried out in contravention of law, and with ‘unjustified violence’.96 Italy’s failure to rectify the situation prompted a follow on case, brought by the Centre on Housing Rights and Evictions (COHRE). In COHRE v Italy,97 the complainant alleged a multiplicity of violations of the RESC, including Articles 16 and 31 both alone and under Article E on non-discrimination. They also alleged violations of Article 30, which prohibits social exclusion. COHRE argued that the discrimination and deprivation experienced by the Roma and Sinti in Italy not only continued, but had worsened, with Italy taking ‘deliberate retrogressive steps’.98 The Committee agreed that the RESC is ‘guided by the principle of progressiveness’ established in the Preamble and in its aims, which include to ‘facilitate economic and social progress’ and to ensure an ‘improvement in standards of living and social well-being’.99 As such, retrogressive steps would not be in accordance with state obligations under the RESC. Due to the seriousness of the allegations, which included de facto and de jure segregation and denial of legal status, denial of access to adequate housing through the practice of ghettoising Roma and Sinti populations, and the promulgation of racist and xenophobic propaganda which characterised the Roma and Sinti as a threat to national security,100 the Committee examined the case as a priority matter.101 The merits decision of June 2010 found violations on all grounds. At issue were Ministerial Decrees, known as ‘Pacts for Security’102 in which the Roma and Sinti were made subject to a system of monitoring, identification and potential removal and expulsion under a regime of ‘state of emergency’.103 COHRE argued that since the adoption of the Pacts for Security, Roma commun­ ities were experiencing increased segregation and social exclusion, with material living conditions being ‘inhuman’.104 COHRE argued that forced evictions had also increased, with ‘few’ cases where alternative accommodation was provided, and that evictions were undertaken in a manner that contravened the RESC. Moreover, efforts taken by the state were not aimed to redress these conditions, but rather had ‘the effect of officially sanctioning ghetto communities’.105   Ibid para 36.   Ibid para 42.   COHRE v Italy above n 80. 98   Ibid para 11. 99   Ibid para 27. 100   Ibid para 11. 101   Ibid para 23 (under Rule 26). 102   Ibid para 14 103   Ibid paras 15–18. 104   Ibid para 49. 105  Ibid. 95 96 97

64  The Right to Housing in Regional Covenant Italy characterised the situation at hand as ‘complex’ and argued that it placed Roma and Sinti in segregated camps in order to collect data from them, particularly on citizenship status, so as to provide them with assistance.106 It further argued that evictions were carried out in conformity with procedural requirements and with the rights of those concerned.107 Moreover, it denied using discriminatory and ‘undemocratic’ language to characterise the Roma and Sinti.108 In coming to its decision the Committee found no evidence of improvement since its previous assessment in ERRC v Italy. There was no indication that the ‘numerous examples’ of eviction had been taken in conformity with the ‘dignity of the persons concerned’ or that alternative accommodation had been made available.109 There had been episodes of police ‘raids’ and violent private citizens’ actions to remove Roma communities. Moreover, rather than being denounced, officials had encouraged these actions.110 On positive obligations to provide housing, the Committee drew on its 2007 Concluding Report on Italy, where it had noted that ‘housing allowance is an individual right and all qualifying households must receive it in practice’.111 Given that there was only ‘an isolated concrete case’ of effective access to social housing, the Committee found a further violation of Article 31.112 Interestingly, the Committee also found that Article 16 includes a right of the family to protection against undue interference in family life, to be interpreted similarly to Article 8 of the ECHR.113 Here, they noted that ‘the specific discriminatory context’ in which the Roma and Sinti had been detained and questioned, and their information recorded, ‘were exclusively based on theoretic security reasons . . . and were of no use to enlighten any social problem’.114 Importantly, the Social Committee also noted the connections between civil and political rights and social rights in this case. It noted that the denial of identity documents to the Roma and Sinti impacted on rights such as the right to housing, but also on the right to vote and to residency and citizenship rights.115 Given the lack of protection and investigation, and particularly the implication of officials in violent acts against Roma and Sinti populations, the Committee implied an ‘aggravated responsibility’ on the state. It explained that an aggravated violation is constituted when: a) on the one hand, measures violating human rights specifically targeting and affecting vulnerable groups are taken, and b) on the other, public authorities are not only   Ibid para 52.   Ibid para 64. 108   Ibid para 42. 109   Ibid para 67. 110   Ibid paras 71–73. 111   Ibid para 85. 112   Ibid para 86. 113   Ibid para 120. See also below nn 141–59 and accompanying text. 114   Ibid para 130. 115   Ibid paras 104–6. 106 107



The Right to Housing in Europe  65 passive and do not take appropriate action against the perpetrators of these violations, but they also contribute to such violence.116

In this case, the aggravated violation of Article 31(2) required ‘urgent attention from all Council of Europe Member States’.117 Perhaps no European state’s treatment of the Roma has attracted as much controversy as France’s recent efforts to expel communities of Roma from its borders. During the summer of 2010, the French President announced the implementation of a policy of forced eviction and mass deportation of Roma in ‘unlawful’ camps across France.118 Several organisations complained to the Committee regarding this conduct, resulting in the cases of COHRE v France119 and European Roma and Travellers Forum (ERTF) v France.120 In COHRE v France, COHRE noted the ‘background of coercion and violence’ in which the deportations and evictions took place, and argued that the singling out of the Roma was a clear indication of intentional discrimination.121 It alleged that the evictions and expulsions were contrary to international law, citing both to General Comment 7 of the CESCR and to the case law of the RESC.122 France responded with several arguments. First, it was argued that there was no violation of the Charter since the expulsions were taken on the basis of individual decisions, under judicial supervision.123 As such, they did not amount to mass expulsions.124 In addition, it characterised the decisions to leave as, in many cases, voluntary, and based on the acceptance of financial payments to those who agreed to return to Romania and Bulgaria.125 It characterised its actions as taken to maintain law and order and standards of hygiene, and as in no way targeting people based on ethnic origin.126 Moreover, since the Roma were in the country unlawfully, the Charter provisions on the right to housing were not applicable to them. Finally, the state argued that the evictions and expulsions of Roma in the summer of 2010 had been declared compatible with European Union law by the European Community.127 Although the forced expulsions were considered under Article 19, which governs the rights of migrant workers and their families to protection and assistance,   Ibid para 76.   Ibid paras 77–78. 118   Centre on Housing Rights and Evictions (COHRE) v France (ESCR Case no 63/2010), Decision on merits, 28 June 2011, para 6. 119   Ibid. Given the seriousness of the allegations, the Social Committee treated this as a priority case (at para 23). In addition, this was not the first time the Social Committee had found France in violation of Arts 16 and 31, see European Roma Rights Centre (ERRC) v France (ESCR Case no 51/2008), Decision on merits, 19 October 2009. 120   ERTF v France above n 91 at para 34. 121   COHRE v France above n 118 at 7–8. 122   Ibid para 37. 123   Ibid para 39. 124   Ibid para 60. 125   Ibid para 40. 126   Ibid para 61. 127   Ibid paras 9–11. 116 117

66  The Right to Housing in Regional Covenant particularly to ‘secure that such workers lawfully residing’ in a state ‘are not expelled unless they endanger national security or offend against public interest or morality’128 the Committee noted in the COHRE case that there was a ‘insepar­ able link’ between the evictions and the expulsions, and accordingly between the substance of the violation of Articles 31(2) and 19(8).129 In essence, the French legislation constituted the eviction as part of the process of immediate removal. As such, the whole process of expulsion was motivated by the same racism and discrimination that tainted the evictions.130 In the Committee’s view, although illegal occupation is a valid ground for eviction, evictions must take place in accordance with the rights of the people concerned, in conditions which respect their dignity, and with procedural guarantees.131 Moreover, the grounds for illegal occupation must not be too broadly drawn.132 Even where evictions are taken in the public interest, the state has duties to rehouse or financially assist the evictees.133 Here, however, the evictions in question were not carried out with regard to the dignity of the evictees, nor were they offered alternative accommodation. On the contrary, the Committee held that the evictions took place ‘against a background of ethnic discrimination, involving the stigmatisation of Roma, and constraint, in the form of the threat of immediate expulsion from France’.134 As in ERRC v Bulgaria, the RESC here noted that the removal of an express discriminatory wording in a policy document does not necessarily remove discrimination.135 The findings were sufficiently severe to prompt the committee to make a determination of an aggravated violation of Article 31(2).136 It noted that the measures in question revealed a ‘failure to respect essential values enshrined in the European Social Charter, in particular human dignity, and the nature and scale of these measures set them apart from ordinary Charter violations’.137 It exhorted the Council of Europe’s member states to turn their urgent attention to the situation, and noted that France should make ‘adequate measures of reparation’ and was obliged to ‘offer appropriate assurances and guarantees of non-repetition’.138 However, as the finding of continuing violations in ERTF v France illustrates,139 the substantial number of findings of violations have not necessarily led to better conditions for Roma, Sinti and Traveller groups, either in France or elsewhere in Europe.   Ibid para 19.   Ibid para 65. 130   Ibid para 66. 131   Ibid paras 41–42. 132   Ibid para 41. 133   Ibid para 42. 134   Ibid para 47. 135   Ibid para 49. 136   Ibid para 53. 137   Ibid para 54. 138  Ibid. 139   ERTF v France, above n 91. 128 129



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(v)  Conclusions on the Right to Housing under the Revised European Social Charter While the European Social Committee’s early jurisprudence did not contain a detailed examination of the scope and content of the relevant Articles of the Revised European Social Charter, a body of case law is rapidly emerging that illustrates the Committee’s strong stance on social and economic rights, including a willingness to impose positive obligations on states. The Committee exhorts states to put in place a comprehensive legislative programme to realise adequate housing and to reduce homelessness. Moreover, the Committee appears willing to use subsequent complaints to review implementation of its decisions in the absence of an explicit enforcement mechanism. Nevertheless, as the Committee’s ability to enforce its judgments is weak, and the publicity and scholarly attention to decisions is limited, the effect of its work on the ground is muted. The work of the Committee may, however, come to more prominence as a thicker housing rights ‘jurisprudence’ develops. Of greatest importance to the realisation of the right to housing will be the role played by the Committee of Ministers, which has yet to act to give effect to the significant work of the Social Committee. B.  European Convention on Human Rights (i)  The Scheme of Rights Protection under the ECHR The Convention for the Protection of Human Rights and Fundamental Freedoms, more commonly known as the European Convention on Human Rights (ECHR), has also seen its share of complainants alleging housing rights violations. This is of interest, given that the ECHR does not include a right to housing. The Convention is not seen as protecting economic, social and cultural rights, given that the RESC fulfils this role in the European Human Rights scheme. However, early on the European Court of Human Rights (ECtHR) rejected a ‘water-tight’ seal between the rights contained in the two Conventions.140 This reflects the fact that various ECHR provisions may protect housing and related interests. Nevertheless, it is important to understand the ways in which this Convention is being employed in the pursuit of a right to housing itself. This is occurring partly through the actions of NGOs, which are consciously using the ECHR to raise the profile of housing rights (and the right to housing) across Europe. It is also partly because the ECHR rights are indeed capable of interpretations which extend existing rights towards the realisation of a right to housing. 140   Airey v Ireland (1980) 2 EHRR 305 at para 26. See also E Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007) 135.

68  The Right to Housing in Regional Covenant The appeal of the European Convention on Human Rights is strong as the more than 40 parties to the Convention are subject to the compulsory jurisdiction of the ECtHR, before which nationals of any state are able to bring individual complaints. Moreover, the ECHR has been incorporated into the domestic legal regimes of a number of European states, giving rise to various possible fora in which to bring complaints. The main provisions under which housing rights concerns have been raised include Articles 8, 3 and 2 and Protocol 1 Article 1. (ii)  Article 8: Home, Family, Private Life and the Right to Housing Article 8 provides the strongest textual link between the Convention rights and a right to housing. Article 8(1) states that: everyone has the right to respect for his private and family life, his home and his correspondence.

Article 8(2) limits the right by stating that: there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 concerns private life, at the ‘heart’ of which ‘is the notion of a private space into which no-one is entitled to enter’.141 This understanding of the right gives the home central importance. Despite the distinct conceptual basis of the different Article 8 heads, in practice, the cases on Article 8 include explicit attention to the link between the home, the private life and the family life, a link that has been little explored in housing rights jurisprudence in other jurisdictions. For example, in Mentes v Turkey, the European Commission noted that the destruction of houses brought within it the entire personal sphere of Article 8, thus there was no need to distinguish between family life, private life and/or the home.142 The ‘home’ is broadly defined in that Article 8 has given rise to cases before the ECtHR holding that a home need not be lawfully established in order to engage the protection of the article, such as Buckley v United Kingdom, where the home had been established without the requisite planning permission.143 The home need not be owned by the petitioner, as an arbitrary eviction of a ten141   DJ Harris et al, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press, 2009) 367. 142   Mentes and others v Turkey (Case 1997 Nov 28 RJD 1997-VIII no 59) (Commission). The European Court adopted the Commission’s reasoning in Mentes and others v Turkey (58/1996/677/867), Judgment, 28 November 1997, para 73. 143   Buckley v United Kingdom (App no 20348/92), ECtHR, Judgment, 25 September 1996, (1996) 23 EHRR 101; the applicant’s case failed, however, at the margin of appreciation stage.



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ant is also a breach of the article.144 In addition, even where residents have ‘no contractual or other right to be there’145 the ECtHR has maintained that Article 8 grants certain legal protections – notably to a fair hearing before an independent tribunal – in recognition of the possessory interest in the home.146 Article 8 jurisprudence often focuses on aspects of protection of home and family life that could be seen as the protection of property rights akin to nuisance laws, such as protection of the home from noise or other pollution.147 These cases extend the enjoyment of a right to housing beyond ownership in two ways. First, it can be argued that the Court’s understanding of the violation of the right can include non-physical breaches such as noise, smells and other interferences with the enjoyment of the private space.148 This understanding is not conceptually tied to property in the private space. Secondly, and in a way that may make more space for a distinct right to housing, these cases may be interpreted as concerning the protection of the quality of one’s living environment.149 Again, such an interpretation is tied to the potential for enjoyment of the private space, not to the status of the inhabitants’ legal relationship to that space in property law. Most notably for a right to housing, courts have not interpreted Article 8 as giving rise to a right to a home itself.150 Some commentators have interpreted this stance as excluding homelessness from the issues that Article 8 will deal with.151 Given that the state obligation is one to respect, rather than protect or fulfil, the right to a home, a negative interpretation of Article 8 is perhaps to be expected, as respect for home, whether couched in terms of respect for preexisting property rights or conceived as respect for the privacy of family life, is distinct from the positive obligations which are normally seen as inherent in a right to housing.

144   Prokopovich v Russia (App no 58255/00), Judgment, 18 November 2004, (2006) 43 EHRR 10. See also McCann v United Kingdom (App no 19009/04), Judgment, 13 May 2008, (2008) 47 EHRR 913, where Art 8 rights were violated by a summary eviction procedure. 145   Kay v United Kingdom (App no 37341/06), Judgment, 21 September 2010, (2012) 54 EHRR 30, 49. For the English position on Art 8 see I Loveland, ‘The Shifting Sands of Article 8 Jurisprudence in English Housing Law’ (2011) European Human Rights Law Review 151. 146   Kay v United Kingdom above n 145 at 68. See also Corby v Scott [2012] EWCA Civ 276 (England). 147   Hatton v United Kingdom (App no 36022/97), Judgment, 8 July 2003, (2002) 34 EHRR 1; Fadeyeva v Russia (App no 55723/00), 9 June 2007, (2007) 45 EHRR 10; Lopez Ostra v Spain (App no 16798/90), Judgment, 9 December 1995, (1995) 20 EHRR 277. 148  Harris et al, above n 141 at 377. 149   R White and C Ovey, Jacobs, White, and Ovey: the European Convention on Human Rights, 5th edn (Oxford, Oxford University Press, 2010) 394–97. 150  See X v Germany (App no 165/56), Judgment, 29 September 1956 [1956] 1 YB 202 (European Human Rights Commission). By and large, this early interpretation holds. See Chapman v United Kingdom (App no 27238/95), Judgment, 18 January 2001, (2001) 33 EHRR 399; and Marzari v Italy (App no 36448/97), Judgment, 4 May 1999, (1999) 28 EHRR CD 175, 179. 151   P Kenna, ‘Housing Rights: Positive Duties and Enforceable Rights at the European Court of Human Rights’ (2008) 2 European Human Rights Law Review 193, 203; Harris et al, above note 141 at 379.

70  The Right to Housing in Regional Covenant However, the ECtHR has indicated that the principle of ‘respect’ is not clear cut,152 and that all the Convention rights must be seen in light of Article 1, which requires a state party to ‘secure’ the Convention rights and freedoms to everyone in its jurisdiction. There are, thus, instances in which the European Court has recognised that Article 8 may place positive (if minimal) obligations on the state. An example includes providing an alternative place of residence when pollution has rendered the home unsafe, as was the case in Fadeyeva v Russia.153 Luke Clements and Alan Simmons characterise this as a remedial obligation: that is, the state may be required to provide shelter where the deprivation of housing is state-caused in the first place.154 Domestic courts considering the Convention as adopted into United Kingdom law have held that Article 8 was breached by a local authority which failed to provide suitable accommodation to a family where the mother was severely disabled. In R (on the application of Bernard) v Enfield LBC,155 the court found that the nature of the temporary accommodation provided resulted in the mother being confined to the lounge room, a situation that ‘made it virtually impossible for [the family] to have any meaningful private or family life for the purposes of Article 8’.156 The positive measures imposed were required because of the special vulnerability of the family.157 Similarly, in O’Donnell v South Dublin County Council,158 Justice Laffoy of the High Court of Ireland held that Article 8 entailed a positive obligation by the Council to provide an adequate mobile home (or the funds with which to purchase one) to alleviate overcrowding for a severely disabled Traveller family. Justice Laffoy stressed the uniqueness of the situation and rejected any suggestion that the Irish government would be required to provide suitable homes to all Irish Travellers currently living in sub-standard housing.159 The Article 8 jurisprudence of the ECtHR can no longer be equated with a negative right to privacy, but neither has it become a positive right to shelter.160 Instead, the European Court focuses on ‘the continuing links’ between a person and her home, and thus emphasises elements of social, physical and emotional attachment.161 As such, Article 8 has developed into a useful and at times power152   Rees v United Kingdom (App no 9532/81), Judgment, 17 October 1986, Series A no.94 (1997) 9 EHRR 56 at para 67. 153   Fadeyeva v Russia, above n 147. See also Moreno Gómez v Spain (App no 4143/02), Judgment, 16 November 2004. 154   L Clements and A Simmons, ‘European Court of Human Rights: Sympathetic Unease’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 413. 155   R (on the application of Bernard) v Enfield LBC [2003] UKHRR 148 (Admin) (QB). 156  Ibid para 162. 157  Ibid. 158   O’Donnell (a minor) and others v South Dublin County Council [2007] IEHC 204. 159  Ibid. 160   A Buyse, ‘Loss of Home during Armed Conflict: ECHR Case Law on Destruction, Eviction and Denial of Access’ in L Fox O’Mahony and J Sweeney (eds), The Idea of Home in Law: Displacement and Dispossession (Farnham, Ashgate, 2011) 195. 161  Ibid.



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ful way for claimants to illustrate the importance not just of housing, but of home. Nevertheless, Article 8 remains a long way from providing for a right to housing itself. (iii)  Protocol 1 Article 1 and the Right to Protection of Property The right to the protection of property in Protocol 1 Article 1 has also given rise to claims for housing rights or a right to housing. The article states that: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The ECtHR has interpreted Protocol 1 Article 1 as regulating three situations: the protection of peaceful enjoyment of possessions; the control of deprivation of possessions; and the state’s right to control the use of property. All aspects of Protocol 1 Article 1 thus have implications for the enjoyment of a right to housing. The provision clearly encompasses cases of destruction of homes and houses by the state, such as Akdivar v Turkey, where the Turkish state security forces destroyed homes in clashes with the PKK.162 As with Article 8, the home in question need not be lawfully established in order to attract protection. For example, in Öneryildiz v Turkey, the property concerned was a house built in an informal settlement. The Court did not find it necessary to address the issue of land tenure, but held it was sufficient that the applicant had a property interest in the house and goods in it.163 Protocol 1 Article 1 has also been used in the face of a state’s non-provision of social housing to an individual who was entitled to such housing under national laws.164 The wide definition of possessions under Protocol 1 Article 1 means that a variety of rights and interests can fall within the definition. Padraic Kenna notes that this breadth could be beneficial where housing related rights are claimed, as it could extend to ‘eviction or compulsory purchase, partial reduction in rights, challenges to rent controls, and legislation restricting recovery of possession or prohibiting eviction’.165 However, while tenants have been protected, the ECtHR has not always recognised all lawful inhabitants as holding a ‘possession’ within 162   Akdivar v Turkey (App no 21893/93), 16 September 1996 (1997) 23 EHRR 143; see also Ayubov v Russia (App no 7654/02), Judgment, 12 February 2009. 163   Öneryildiz v Turkey (App no 48939/99), ECtHR GC, Judgment, 30 November 2004 (2005) 41 EHRR 20. 164   Teteriny v Russia (App no 11931/03), Judgment, 30 June 2005 (2005) EHRR 449. 165   P Kenna, ‘New Benchmarks for Housing Policy in Europe’ (2005) 37 Urban Lawyer 87, 104.

72  The Right to Housing in Regional Covenant the meaning of the article.166 Such an interpretation has the potential to overlook protections for vulnerable individuals living in situations with less than secure tenure, such as supported hostels, or as in JSL v Spain, those living in housing tied to their employment status, in this case, as members of the state’s armed forces.167 (iv)  Right to Life under Article 2 and Positive Obligations for a Right to Housing Cases under the right to life, codified in Article 2 of the ECHR, have also recently raised issues relating to housing and the material conditions of life, as the article requires states to take steps to protect life. Thus, in Öneryildiz v Turkey, the ECtHR held that Turkey had breached its Article 2 obligations to protect life when it failed to regulate dangerous conditions and deal with a known risk of a methane gas explosion occurring in a landfill site. The petitioners had built informal dwellings around the site (with the knowledge and acquiescence of the authorities), and when the landfill site exploded 39 inhabitants were killed and their homes and belongings destroyed.168 The ECtHR held that Article 2 of the Convention ‘does not solely concern deaths resulting from the use of force by agents of the state but also . . . lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction’.169 Moreover, the Grand Chamber stated that ‘this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake’.170 Subsequently, in Budayeva v Russia,171 the ECtHR held that the Russian Federation were liable for a violation of Article 2 where mudslides struck a town, killing eight people and destroying homes and property. Although the authorities knew the mud-retention dam above the town had been weakened by heavy rains, they failed to warn the residents. Even when flooding began the state did not take effective action.172 Although in this case the disaster was considered ‘natural’173 and in Öneryildiz manmade, Russia was held liable under both the procedural and substantive elements of Article 2. Although Budayeva may represent the extension of obligations under Article 2 to situations where the state did not cause the deaths, there was no violation of Protocol 1 Article 1 in the case – the European Court gave the state a smaller margin of appreciation where lives were threatened than where property was at risk.174  See JLS v Spain (App no 41917/98), Admissibility Decision, 27 April 1999 ECHR 1999-V.  Ibid. 168   Öneryildiz v Turkey above n 163. 169   Ibid para 71. 170   Ibid (emphasis added). 171   Budayeva and others v Russia (App no. 15339/02), Judgment, 20 March 2008. 172   Ibid paras 19–25 173   Ibid para 111. 174   Ibid para 175. 166 167



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The ECtHR’s broad line of reasoning under Article 2 may allow for the development of a jurisprudence on the right to the conditions of life that could, in the future, include a right to adequate housing along similar conceptual lines to that developed by the Indian Supreme Court.175 For now, however, this and similar cases are being more commonly interpreted as environmental cases, requiring the regulation of dangerous industries, rather than as housing rights cases.176 (v)  Destruction of Housing, Destitution and Inhuman Treatment under Article 3 A final provision of the ECHR which is available to support claims for a right to housing is Article 3, which guarantees that: no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

As is also the case under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment177 (CAT) and the International Covenant on Civil and Political Rights178 (ICCPR), destruction of housing may constitute torture or inhuman or degrading treatment under the ECHR. In Selçuk and Asker v Turkey,179 the ECtHR held that destruction of an elderly petitioner’s home amounted to inhuman treatment, where the home was burnt by security forces in her presence, her belongings were destroyed, and she was deprived of her livelihood and rendered homeless as a result.180 In Moldovan v Romania (No 2) the destruction of the housing of a Roma community and the resultant living conditions experienced by the community were found to be degrading treatment.181 Moldovan clarified that a serious breach of Article 8 could itself amount to a violation of Article 3.182 In a step towards the protection of the poor and destitute under the ECHR, the ECtHR, in Marzari v Italy, interpreted Article 3 as placing positive obligations on public authorities to provide housing assistance where a lack of such   See Chapter 4.  K Reid, A Practitioner’s Guide to the European Convention on Human Rights, 4th edn (London, Sweet and Maxwell, 2011) 409. See also Guerra v Italy (App no 14967/89), Judgment, 19 February 1998 (1998) 26 EHRR 357. 177  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 39/49 (adopted 10 December 1984, entered into force 26 June 1987). See further Chapter 2 V. 178   International Covenant on Civil and Political Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 23 March 1976). See further Chapter 1 IV A. 179   Selçuk and Asker v Turkey (App nos 23184/94 and 23185/94), Judgment, 24 April 1998, (1998) 26 EHRR 477. 180   See also Bilgin v Turkey (App no 20132/92), Judgment, 20 June 2002, (2002) 35 EHRR 1291; Dulas v Turkey (App no 25801/94), Judgment, 30 January 2001; Mentes v Turkey above n 142 (though given the breach of Art 8, the Court did not decide on the question of the violation of Art 3 in the Mentes case). 181   Moldovan v Romania (No 2) (App nos 41138/98 and 64320/01), Judgment, 12 July 2005 (2007) 44 EHRR 16 at para 113. 182   Ibid para 102–14. 175 176

74  The Right to Housing in Regional Covenant assistance would impact negatively on a severely ill individual’s private life, although it held the specific dispute inadmissible.183 Meanwhile, where an asylum seeker was reduced to sleeping on the streets and had no regular access to food and washing amenities, the UK House of Lords, in Limbuela v Secretary of State,184 found the government to have an obligation to provide shelter, refusal of which would be a breach of Article 3.185 The case of Adam186 proceeded on a similar line of reasoning. Here, Lord Bingham noted that although Article 3 could not require a general duty to house the homeless, the ‘threshold’ of Article 3 applicability may be crossed when a person ‘with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life’.187 As Colm O’Cinneide argues, these cases are an important recognition that severe poverty is not a ‘natural phenomenon’ and that state action and inaction can play a serious role in exposing people to degrading and inhuman conditions.188 It goes too far, however, to argue that the ECHR protects even an implicit right to housing through Article 3,189 although these cases do indicate that the ECHR places a positive obligation on states to provide at least minimal material protection in accordance with human dignity. So far, in both Strasbourg and the United Kingdom, this line of cases hangs on the state’s specific responsibility for the individual’s position, coupled with the particular vulnerability of the individual. As such, it is a limited, though important, avenue for protection of a right to housing. (vi)  Conclusions on the Right to Housing under the ECHR Use of the ECHR to secure better housing conditions is likely to continue, given the strength of the enforcement mechanisms available. It is perhaps unfortunate that there is such disparity of enforcement mechanisms between the RESC and the ECHR. The provisions of the RESC are more readily suited to the adjudication of economic and social rights, whereas case law arguing for a right to housing under the ECHR faces an uphill battle to imply substantial material rights into rights currently interpreted in the negative language of respecting and refraining. As Clements and Simmons put it, the ECtHR’s social rights jurisprudence is char-

  Marzari v Italy (App no 36448/97), 4 May 1999, (1999) 28 EHRR CD 175 (Adm).   R (on the application of Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 see also R (on the application of Limbuela) v Secretary of State for the Home Department [2004] EWHC 219 (Admin) (QB). 185   Limbuela [UKHL] above n 184. 186   R (ex parte Adam) v Secretary of State for the Home Department [2005] UKHL 66. 187   Ibid per lord Bingham at para 7. 188  C O’Cinneide, ‘A Modest Proposal: Destitution, State Responsibility, and the European Convention on Human Rights’ (2008) European Human Rights Law Review 583, 589. 189   Against: Olds, ‘The Role of Courts in Making the Right to Housing a Reality Throughout Europe’ above n 42 at 179. 183 184



African Regional Housing Rights  75

acterised by ‘sympathetic unease’.190 Nevertheless, the jurisprudence emerging from the provisions of the ECHR, whether applied under domestic legislation or considered by the ECtHR, illustrates the myriad rights which are affected by the availability, affordability, quality and safety of housing and demonstrates the difficulty courts experience in separating the right to housing from other fundamental rights. III.  AFRICAN REGIONAL HOUSING RIGHTS

A.  The Scheme of Rights Protection in Africa The African Charter on Human and Peoples’ Rights came into force in 1986,191 and has now been ratified by all of the 53 member states of the African Union. It comprises a Preamble and 62 Articles detailing both rights and duties. The African Commission, which oversees the Charter, has fulfilled two mandates, one promotional, one protective,192 and has ‘tended to function like a quasicourt’.193 That is, it receives communications alleging violations of the Charter and issues decisions, though these are non-binding. In its protective role, the Commission has developed a body of cases on the provisions of the Charter through individual, NGO or state to state complaints brought before it.194 Since the Commission dispensed with the confidentiality of decisions provided for under Article 59,195 its cases have shed light on the human rights situation in Africa, and provided an avenue of redress, if not always direct enforcement. In 1998, a Protocol was adopted to establish an African Court on Human and Peoples’ Rights, which in future will enforce the Charter. The African Court on Human and Peoples’ Rights formally came into being at the beginning of 2004, and the African Union has now taken steps to merge it with the African Court of Justice. When the relevant Protocol enters into force,196 human rights in Africa will be overseen by an African Court of Justice and Human Rights. The Commission will remain in existence, exercising a complementary function to the Court, and in the majority of circumstances will be responsible for bringing

190  Clements and Simmons, ‘European Court of Human Rights: Sympathetic Unease’ above n 154 at 409. 191   African Charter on Human and Peoples’ Rights, OAU Doc CAB/LEG/67/3 rev. 5 (1982) 21 ILM 58. 192   Ibid Art 45. 193   OC Okafor, The African Human Rights System: Activist Forces and International Institutions (Cambridge, Cambridge University Press, 2007) 66. 194   African Charter Art 55. 195   See DM Chirwa, ‘African Regional Human Rights System’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 335. 196   African Union Protocol on the Statute of the African Court of Justice and Human Rights (adopted 1 July 2008).

76  The Right to Housing in Regional Covenant cases before the Court.197 To date, the African Court on Human and Peoples’ Rights has decided just over a dozen cases, all of which have been ruled inadmissible, though a range of further cases are pending. As such, it remains to be seen whether the Court will follow the Commission’s lead in developing an implied right to housing through other rights in the Charter. The African Charter’s Articles are presented on an equal and interdependent footing, and there is no formal distinction between or among rights which might elsewhere be termed civil and political, economic, social and cultural, or the rights of peoples. None of the rights are phrased in the language of progressive realisation, nor are they subject to a limitation based on available resources. There is also no derogations clause in the Charter. While the Commission have held firm to the conclusion that no derogations are permissible,198 its interpretation of socio-economic rights suggests that it will consider the state’s resources as relevant to, though not determinative of, the question of violation and obligation before it, as emerges below. B.  Implied Right to Housing and Shelter in the African Charter Though not including a specific right to housing, the African Commission has implied the right as arising from the requirements of other articles in the African Charter. These are a combination of the right to property in Article 14, the right to the highest attainable standard of physical and mental health under Article 16, and the right to protection of the family as the ‘natural unit and basis of society’ in Article 18(1).199 This basis grounds the communal and social vision of housing the Commission has developed. In 1996, two NGOs working on human rights violations in Nigeria submitted the first communication in which the African Commission was called on to consider the economic, social and cultural rights guarantees in the African Charter. The NGOs alleged that Nigeria was responsible for the violation of the rights of the Ogoni people in the Niger Delta. The Ogoni’s lands, oil-rich and under exploitation by multinational companies in consortium with the Nigerian state, were the site of explosive political tension.200 In resistance to the oil extraction and resultant despoliation of their lands, the Ogoni engaged in violent protest, attacking oil installations and other 197   The exact procedures are yet to be determined. See C Heyns and M Killander, ‘Africa’ in D Moeckli, S Shah and S Sivakumaran (eds), International Human Rights Law (New York, Oxford University Press, 2010) 492–93. 198  See eg Commission Nationale des Droit de l’Homme et des Libertés v Chad, African Commission on Human and Peoples’ Rights, Comm no 74/92 (1995) para 21. 199   Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v Nigeria (Ogoni case), African Commission on Human and Peoples’ Rights, Comm no 155/96 (2002) para 60. 200  HO Yusuf, ‘Oil on Troubled Waters: Multinational Corporations and Realising Human Rights in the Developing World, with Specific Reference to Nigeria’ (2008) 8(1) African Human Rights Law Journal 79, 80.



African Regional Housing Rights  77

infrastructure.201 In response, the Nigerian militia destroyed their homes and villages, and killed and assaulted those who attempted to return. The conflict overlays a pre-existing struggle for political self-determination by the Ogoni, and as such must be understood not only as an economic and social, but also political, dispute.202 The complaint brought to the Commission alleged that the state’s actions led to the violation of rights to food, health, the environment and, most relevantly, housing. In May 2002, after considering the admissibility of the complaint, and having received virtually no response from the Nigerian government throughout the process,203 the Commission finally handed down its decision in SERAC and CESR v Nigeria (‘Ogoni case’).204 The reasoning on the right to housing is not lengthy, but the destruction of housing and the related human rights harms arising from this violation are central to the judgment. The Commission found that Nigeria had: destroyed Ogoni houses and villages and then, through its security forces, obstructed, harassed, beaten, and in some cases, shot and killed innocent citizens who have attempted to return and rebuild their ruined homes. These actions constitute massive violations of the right to shelter, in violation of Articles 14, 16, and 18(1) of the African Charter.205

Although neither shelter nor housing appears as a separate right in the African Charter, the Commission held that, taken together, the right to the best attainable state of physical and mental health; the right to property; and the right to the protection of the family under the Charter ‘forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected’.206 The Ogoni case thus recognises that with the destruction of the physical fabric of housing comes the destruction of the social fabric. While the Ogoni case refers to the right to housing as an individual right, it also recognises that this right is exercised not only in the interest of the individual, but also in service of the family, household or community.207 Meanwhile, the Commission identifies a collective right not to be subject to forced evictions,208 reflecting the fact that ‘people are not fungible commodities capable of thriving as easily in one place 201   Yusuf notes that the attacks were certainly effective, in that they prevented the multinational oil corporations from functioning effectively. One instance in 2006 alone accounted for a US$1 rise in oil prices worldwide the following day. Ibid 80. 202   Ibid 83–84. 203   JC Nwobike, ‘African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter: Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v Nigeria’ (2005) 1 African Journal of Legal Studies 129. 204   SERAC and CESR v Nigeria (Ogoni case) above n 199. 205   Ibid para 62. 206  Ibid. 207   Ibid para 61. 208   Ibid para 63.

78  The Right to Housing in Regional Covenant as the next’,209 an issue that arises particularly in cases of forced relocations or evictions such as those the African Commission has been called upon to consider. The Commission’s interpretation of the Charter provisions as overlapping and mutually reinforcing is appropriate, given that ‘the Charter itself is of an integrated nature, which means that all the substantive standards are interdependent and permeate each other’.210 The decision thus illustrates a readiness on the part of the African Commission to comprehend economic, social and cultural rights as interdependent and as related to civil and political rights and their enjoyment. For example, the Commission relied on a purposive definition of the right to life, recognising that the economic and environmental harms visited on the Ogoni could violate this right, a departure from the Commission’s earlier right to life jurisprudence.211 The right to housing in this case was elucidated in the context of state-­ sponsored destruction of housing, forced eviction and destruction of property. Whether the African Commission and Court will find a ‘positive’ right to housing within the Charter is an open question. However, it is clear that the implied right to housing in the Ogoni case is not an anomaly. Two subsequent cases have followed this approach: Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya212 (Endorois) and Centre for Housing Rights and Evictions (COHRE) v Sudan.213 The main legal issue in the Endorois case was indigenous land rights. The decision is the first on indigenous rights as peoples’ rights under the African Charter, and the Commission’s first endorsement of indigenous status in Africa in a contentious case.214 It held that not only were the Endorois an indigenous group, but that ‘the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with

209   RM Ackerman, ‘Mitigating Disaster: a Communitarian Response’ (2008) 9 Cardozo Journal of Conflict Resolution 283, 286. 210   F Coomans, ‘Ogoni Case before the African Commission on Human and Peoples’ Rights’ (2003) 52 International and Comparative Law Quarterly 749, 751; see also Nwobike, ‘African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter’ above n 203. 211   Nwobike, ‘African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter’ above n 203 at 135. 212   Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission of Human Rights, Comm no 276/03 (2010). 213   Centre for Housing Rights and Evictions (COHRE) v Sudan, African Commission of Human Rights, Comm no 296/05, (2010). 214   Although in the Ogoni case the Commission had stated that ‘The African Charter in Articles 20 through 24 clearly provides for peoples’ to retain rights as peoples’, that is, as collectives. The importance of community and collective identity in African culture is recognised throughout the African Charter. SERAC and CESR v Nigeria (Ogoni case) above n 199 at para 40.



African Regional Housing Rights  79

ancestral lands’.215 These violations included the violation of the right to religious practice under Article 8, as the Endorois were excluded from their sites of worship and sacred practice by their exclusion from their ancestral lands.216 This denial also led to the violation of the right to culture under Article 17(2) and (3), which the Commission found was rendered ‘illusory’.217 The state’s failure to adequately compensate or provide restitution for the confiscation of the Endorois’ traditional lands also amounted to a violation of the right to benefit from natural resources in Article 21,218 while the failure to provide for full participation and consent in the development process over the Endorois’ lands was a breach of the right to development in Article 22.219 The Commission also held that there was a violation of Article 14, the right to property.220 On this count the Commission held that the eviction of the Endorois people from their land raised issues of a violation of the right to housing, as Article 14’s protection of property includes the protection of the right to adequate housing.221 The decision cites the CESCR’s General Comment 4 to the effect that forced evictions are prima facie in violation of the right to housing, noting that such evictions can only be justified in exceptional circumstances.222 It could be argued that the Commission’s statement on the right to housing in the case serves no purpose, given that the Commission found violations of the relevant rights on other grounds, and given that there is no attention given to the physical form or structure of housing in the judgment, and almost no mention of the destruction of houses or dwelling places. However, the judgment illustrates the way land can function as home, particularly for indigenous peoples. Moreover, the Commission’s reasoning suggests that a right to housing can attach to a home land, rather than to a specific dwelling. This interpretation of the right to housing creates space for an understanding of the right to housing that extends beyond the dwelling itself, to the relationship of the dwellers to each other in community; to the land; and to property rights and socio-­economic opportunities. Most recently the right to housing was again raised in COHRE v Sudan.223 This case concerned acts of violence in the Darfur region of Sudan during 2003, when the Sudanese regime attempted to suppress rebel uprisings. The state sponsored the Murhaleen and Janjaweed militias, which targeted civilians and their homes, livelihoods and belongings. The militia destroyed and contaminated wells, and razed entire villages, which led to the mass displacement of many thousands of individuals. COHRE’s allegations centred on the impact of   Endorois above n 212 at para 162.   Ibid para 173. 217   Ibid para 251. 218   Ibid para 268. 219   Ibid para 298. 220   Ibid para 238. 221   Ibid para 191 and citing SERAC and CESR v Nigeria (Ogoni case) above n 199, as authority. 222   Ibid 200. 223   COHRE v Sudan, above n 213. 215 216

80  The Right to Housing in Regional Covenant forced eviction on a number of rights set out in the African Charter.224 Not only did the complainants rely on the implied right to housing under Articles 14, 16 and 18(1), as set out in the Ogoni case, they also urged the Commission to go further, by reading in the interpretation of the right to housing from other international and regional Covenants, most notably the ICESCR, and the CESCR’s General Comments 4 and 7,225 but also the interpretation of provisions of the ECHR by the European Court of Human Rights.226 The Commission’s decision on the merits proceeded through the alleged breaches of Charter rights. However, forced evictions remained the major factual lens through which the ‘totality’ of the violations was seen. These violations occurred through: using military helicopters and the Janjawid militia, on the civilian population, forced eviction of the population from their homes and villages, destruction of their properties, houses, water wells, food crops and livestock, and social infrastructure, the rape of women and girls and displacement internally and outside national borders.227

Forced evictions were found, in this case, to amount to violations to both respect and protect: Article 5 on the right to be free from cruel and inhuman treatment;228 Article 6 on liberty and security of the person;229 Article 7 on the right to have one’s cause heard;230 Article 12(1) on the right to freedom of movement and residence;231 Article 16 on the right to health;232 and Article 18(1) on the protection of the family as the fundamental group unit of society.233 Finally, the evictions, coupled with the destruction of homes and dwellings, were found to be a violation of Article 14 on the right to property, regardless of issues of land titling, as ‘the fact that the victims cannot derive their livelihood from what they possessed for generations means they have been deprived of the use of their property under conditions which are not permitted by Article 14’.234 As with the previous cases in which a right to housing is implied into the African Charter, there is no in-depth discussion of the meaning or definition of a right to housing in COHRE v Sudan. However, the case is an important statement on the right to housing in Africa . The Commission appears to accept that state participation in, or failure to protect against, forced evictions is attended by a host of other human rights violations, from security of the person to the right to food, from the right to property to a peoples’ right to development. As such, the Commission acknowledges a multifaceted and contextual right to   Ibid paras 111–15.   Ibid para 117.   Ibid para 122. 227   Ibid para 157. 228  Ibid. 229   Ibid para 179. 230   Ibid para 185. 231   Ibid para 190. 232   Ibid para 212. 233   Ibid para 216. 234   Ibid para 205, see also para 201. 224 225 226



African Regional Housing Rights  81

housing similar to that interpreted by the CESCR in General Comments 4 and 7, seeing housing as the locus of economic, social and cultural life, family and personal identity, and even national development. That the communal, social and cultural importance of housing is explicitly protected under the African Charter is perhaps not surprising, given that the African Charter has strong communitarian elements, seen as reflecting traditional African values and norms. As Makau Mutua argues, the resolution of a rights claim under the African Charter can be seen as ‘an opportunity for society to contemplate the complex web of individual and community duties and rights to seek a balance between the competing claims of the individual and society’.235 The concept of rights in the African Charter is thus communitarian in its focus on the individual as an embedded member of society, and its attention to overlapping communities of family, neighbourhood, tribe, society and state. However, any right to housing of such a multifaceted and contextual nature remains embryonic under the African Charter. To date, the Commission’s statements on the right to housing emerge exclusively in cases where the state has either caused, or failed to prevent, the forced eviction of communities from their homes and traditional dwelling places. No positive right to provide housing has been argued for, nor has the Commission ordered the respondent states to rebuild specific houses in response to the violations. The right to housing is only discussed in the context of forced eviction, while at least in the Ogoni case, commentators note that a right to shelter was given a potentially broader meaning,236 although the line of reasoning on a separate right to shelter has not been pursued in the later cases. In addition, in none of these cases has the Commission dealt with a state that has fully engaged with the substantive claims of the complainant. Nigeria was largely absent from the proceedings in the Ogoni case. The Kenyan state did not initially respond proactively to the Endorois complaint. It did not participate in the decision on admissibility, only responding on admissibility issues after the case moved to the merits stage.237 In COHRE v Sudan, Sudan did not deny the rights violations or accept them, but merely set out the steps it was undertaking to remedy the general conditions of life in Darfur.238 Thus, it remains to be seen how a right to housing, even in the context of forced evictions, would be interpreted in a case where a state made full and assertive merits submissions or forcefully countered the claims before the Commission. One of the most interesting aspects of the African Commission’s statements on a right to housing has been the Commission’s willingness to import 235   M Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: an Evaluation of the Language of Duties’ (1994) 35 Virginia Journal of International Law 339, 344–45. 236   G Bekker, ‘The Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria’ (2003) 47 Journal of African Law 126, 131. 237   Endorois, above n 212 at paras 142–43. 238   COHRE v Sudan, above n 213 at paras 127–38.

82  The Right to Housing in Regional Covenant interpretations from other human rights Covenants, and to rely on the case law emanating from other adjudicatory bodies. It appears quite appropriate for the African Commission to take into account the human rights instruments to which many African states are party, such as the ICESCR. This is particularly the case given that the African Court of Justice is empowered by Article 3(1) to consider violations of rights not just as set out in the African Charter, but as contained in any human rights instrument that has been ratified by the state under examination, and that Article 7 allows the Court to take any such instrument into account as a source of law. However, relying on interpretations and case law from regional human rights Covenants to which African states are not, and cannot be, parties, is more controversial. The Commission’s reliance on ECtHR and Inter-American Court of Human Rights (IACtHR) case law in these three cases is a representation of the cross-fertilisation of all human rights norms, but as yet it is not clear whether these interpretations would stand in the face of state hostility to reliance on the human rights jurisprudence of other regions. In addition, the relevance of these interpretations to the African context may need to be further justified. C. Conclusion The African human rights protection system remains in an evolutionary state. The African Court on Human Rights is beginning to deliver judgments, which are to be formally binding, though commentators have noted that compliance mechanisms are few,239 and political will to support both the current Commission and the future Court is low, with some instances of states actively undermining the Commission’s work.240 However, it is possible that when the Court is merged with the African Court of Justice this will give it more clout as both a political and legal institution. Meanwhile, the African Commission continues to make the majority of decisions on complaints under the African Charter, and through its work is developing a distinct body of jurisprudence with a particular focus on the relationship between land, housing and peoples’ rights. This jurisprudence illuminates the connections of the right to housing to other rights, and foregrounds the social and communal aspects of housing, which are often ignored in other jurisdictions.

239   S Lyons, ‘The African Court on Human and Peoples’ Rights’ (2006) 10 American Society of International Law Insight, available at www.asil.org/insights060919.cfm. 240   For commentary on this process see I Kane and AC Motala, ‘The Creation of a New African Court of Justice and Human Rights’ in M Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights, 2nd edn (Cambridge, Cambridge University Press, 2008) 437. See also Chirwa, ‘African Regional Human Rights System’ above n 195 at 336.



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IV.  INTER-AMERICAN HUMAN RIGHTS SYSTEM

A.  The Inter-American Scheme of Human Rights Protection The Organization of American States (OAS) has promulgated a number of human rights instruments and has established two bodies to oversee the realisation of human rights in the Americas. These two bodies are the Inter-American Commission on Human Rights (Commission) and the Inter-American Court of Human Rights (IACtHR). The Commission came into being in 1959241 and was conceived as an advisory body for the OAS. However, despite a ‘relatively fragile’ basis for such a function in its Statute, the Commission was soon flourishing as an enquiry mechanism, examining State Reports and petitions brought before it.242 Since 1965 it has had the competence to examine individual communications and its primary function now consists in the examination of individual petitions,243 although its role in preparing country studies and thematic reports has an important, and perhaps broader, impact.244 In addition, as Tara Melish notes, these promotional activities are ‘dynamically linked’ to the individual case-based function, as they can illuminate the systemic aspects of an individual complaint and raise the Commission’s, and the public’s, awareness of the situation.245 The second body with the competence to examine human rights violations in the Americas is the Inter-American Court of Human Rights. The IACtHR was established under the American Convention on Human Rights.246 It has both an advisory function, and the competence to consider and sit in judgment on cases brought before it.247 The Court’s decisions are binding, and cannot be appealed.248 However, cases cannot be brought directly to the IACtHR by individuals. Instead, individual complaints must be brought either by a state party, or by the Inter-American Commission on Human Rights, to which they must first be submitted. In practice, almost all petitions are passed to the Court from 241   Organization of American States, Resolution VIII adopted at the Fifth Meeting of Consultation of Ministers of Foreign Affairs of the OAS (13 July 1959). 242   O De Schutter, International Human Rights Law: Cases, Materials, Commentary (Cambridge, Cambridge University Press, 2010) 921. 243   J Pasqualucci, ‘The Americas’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (New York, Oxford University Press, 2010) 438. 244  For example, some suggest that country visits and thematic reports have generated such publicity that they have helped bring down oppressive regimes in the region. See D Weissbrodt and ML Bartolomei, ‘The Effectiveness of International Human Rights Pressures: the Case of Argentina 1976–1983’ (1991) 75 Minnesota Law Review 1009. See also T Melish, ‘Inter-American Human Rights Commission’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 339–40. 245   Melish, ‘Inter-American Human Rights Commission’ above n 245 at 340. 246   American Convention on Human Rights, OAS Treaty Series no 36 (1969) 9 ILM 99 (opened for signature 22 November 1969, entered into force 18 July 1978) Ch VIII. 247   Ibid Art 64(1) and (2) and Ch VIII. 248   Ibid Art 67.

84  The Right to Housing in Regional Covenant the Commission, giving both human rights bodies a heavy workload and resulting in a lengthy process before final determinations are rendered in contentious cases. The most relevant of the OAS human rights documents for the development of a right to housing are the American Declaration of the Rights and Duties of Man of 1948 (American Declaration),249 the American Convention on Human Rights (ACHR)250 and its Protocol on Economic, Social and Cultural Rights (the Protocol of San Salvador).251 The American Declaration, adopted prior to the Universal Declaration on Human Rights, was the first international statement on human rights and is considered – at least by the IACtHR itself – to be a binding source of legal obligations over the OAS member states, despite the fact that it does not have the treaty status of the ACHR.252 The IACtHR, a creature of the ACHR, is limited to considering violations of the ACHR, and as such has jurisdiction only over those states parties to the ACHR who have accepted its jurisdiction. The Commission, however, is not overshadowed by the Court. It has the important function of examining individual communications for OAS member states that have not ratified the ACHR, under the American Declaration.253 In addition, as petitioners cannot approach the Court directly, they must first approach the Commission, which, if no friendly settlement can be reached, may, and now generally does,254 refer the case to the IACtHR. Until the Court’s rules of procedure were changed in 2001, the Commission also acted on behalf of the petitioner before the Court, though the new rules provide a greater role for the petitioner to speak and be heard directly.255 As the Commission and IACtHR fulfil complementary functions and have complementary powers in the Inter-American human rights system, the development of human rights must be considered within the system, rather than through an analysis of the contribution of the Court versus that of the Commission.

  American Declaration of the Rights and Duties of Man, OAS Res XXX (1949) 43 AJIL Supp

249

133.

  American Convention above n 246.   Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, OAS Treaty Series no 69 (1989) 28 ILM 156 (opened for signature 17 November 1988, entered into force 16 November 1999). 252   Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, IACtHR, Advisory Opinion, 14 July 1989, Series A (no 4) (1989) paras 42–45. See also Roach and Pinkerton v United States, IA Comm HR, Case 9647 Res 3/87 (1987) paras 46–49. 253   See Statute of the Inter-American Court on Human Rights, OAS Res 448 (IX-0/79), Annual Report of the Inter-American Court on Human Rights (1979) vol 1 at 98, Arts 18–20. 254   Melish, ‘Inter-American Human Rights Commission’ above n 244 at 348. 255   Pasqualucci, ‘The Americas’ above n 243 at 440. 250 251



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B.  Implying a Right to Housing in the Americas: Three Methods As a matter of necessity, any right to housing in the Inter-American human rights system must be implied. Neither the American Declaration, the ACHR, nor the Protocol of San Salvador include an explicit right to housing. American Declaration Article XI considers housing as an aspect of the protection of the right to health, stating that: Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.

The ACHR’s right to privacy under Article 11(2) protects against arbitrary or abusive interference with the home. Under Article 26 on progressive development, the ACHR also imports the derivative or implicit standards of economic, social and cultural rights set forth in the OAS Charter, which include attention to material well-being, including through attention to housing.256 To date, the IACtHR has considered Article 26 to be non-justiciable, as the principle of ‘progressive realisation’ does not meet the formal requirements for bringing a case to the Court, which consist of the need for a concrete injury to defined individuals, and the state’s causal responsibility for that injury.257 The Protocol of San Salvador does not mention housing or home at all, and in addition only two rights – to education and to form unions – are directly justiciable.258 As the cases and reports discussed below illustrate, although no right to housing as such has been implied into the Inter-American human rights regime, three distinct interpretive techniques have led both the IACtHR and the Commission to protect housing as a right. The first protection is offered through the Commission and Court’s findings that state-sponsored eviction and enforced expulsions of individuals or communities and the destruction of their housing constitute human rights violations. The second is the Court’s development of the concept of the right to a vida digna – a dignified life – under Article 4(1) of the ACHR. The third is the use of equitable remedies to provide housing as reparation for the violation of human rights, even where a right to housing has not been specifically mentioned as violated. (i)  Forced Evictions, Expulsions and the Destruction of Housing Repressive and authoritarian regimes in the Americas have used the tactic of entering individuals’ homes and houses, destroying belongings, and imprisoning, executing or ‘disappearing’ the occupants as tactics of terror and control. 256   See Charter of the Organization of American States, 119 UNTS 3 (adopted 30 April 1948, entered into force 13 December 1951) (as amended) Arts 34, 45, 49 and 50. 257  See Five Pensioners’ Case, IACtHR, Judgment, 28 February 2003, Series C no 98, para 147. 258   San Salvador Protocol Arts 8.1.a and 13. This difference is provide for in Art 19.6.

86  The Right to Housing in Regional Covenant In these cases, the Inter-American Commission has found violations of rights to property under Article 20 of the ACHR.259 Similar use of violence has constituted a breach of Article XXIII of the American Declaration. For example, in the Edward Damburg case, Suriname forces summarily arrested and tortured Mr Damburg before executing him. They then burned his home and possessions, rendering his family homeless.260 Forced evictions of landless peasant communities who have colonised private ranches as a survival technique and as a protest strategy have also been considered breaches of the ACHR. In Corumbiara v Brazil,261 the eviction of the community was carried out by military police and privately hired gunmen who wore masks concealing their faces. The eviction resulted in a hundred of the settlers being injured, and nine killed. In addition to the deaths and injuries, the community’s houses and belongings were burned. In this case, the Commission found violations of Articles 4, on the right to life, 5 on the right to humane treatment, 8 on the right to a fair trial, and 25 on the right to judicial protection. More indiscriminate destruction of housing, such as that conducted by the United States during the invasion of Panama, may also amount to a violation of the rights under the American Declaration.262 Where whole communities have been forced to flee in the face of massacres and persecution, the IACtHR has found violations of the ACHR’s rights to freedom of movement and residence under Article 22.263 In addition, it has ordered reparations aimed to protect rights of return.264 Where the communities have been indigenous groups, the Court has taken into account the special role such territorial homelands play for the enjoyment of the community’s rights. For example, in the Moiwana Village case, the Court recognised that ‘the unique and enduring ties that bind indigenous communities to their ancestral territory . . . must be recognized and understood as the fundamental basis of its culture, spiritual life, integrity, and economic survival’.265 Accordingly, the state was held to have a particular responsibility to protect against displacement from those lands.266 In this way, the Court’s jurisprudence extends the concept of home beyond the dwelling in a similar way to the African Commission’s recent decisions.267 259   For example Leon Thebaud, IA Comm HR, OEA/ser.L/V/II.61, doc 22 rev 1 Annual Report (1982). 260   Edward M. Damburg, (Suriname), IA Comm HR, OEA/ser.L/V/II.76, doc 10 Annual Report (1989). 261   Corumbiara v Brazil, IA Comm HR, OEA/ser.L/V/II.95, doc 7 rev 62 Annual Report (1998). 262   US Military Action in Panama, IA Comm HR, OEA/ser.L/V/II.85, doc 9 rev Annual Report (1993). 263   Moiwana Village v Suriname, Inter-Am Ct HR, Ser C no 145 (2005). 264  See eg Ituango Massacres v Colombia, IACtHR, Judgment, 1 July 2006, Series C no 148 (2006); Pueblo Bello Massacre v Colombia, IACtHR, Judgment, 31 January 2006, Series C no 140 (2006); Mapiripdn Massacre v Colombia, IACtHR, Judgment, 15 September 2005, Series C no 134 (2005); Moiwana Village above n 263. 265   Moiwana Village v Suriname, IACtHR, Judgment on preliminary objections, 15 June 2005, Series C no 145 (2005) para 131. 266  Ibid para 131. 267   See further Chapter 3 III.



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(ii)  Housing and the Dignified Life The right to life in Article 4(1) of the ACHR has provided an avenue for the development of a more substantive right to housing through the concept of a vida digna, or ‘dignified life’. ACHR Article 4(1) states that: Every person has the right to have his life respected. This right shall be protected by law . . . No one shall be arbitrarily deprived of his life.

The IACtHR has recently developed a line of cases that recognise the right to a vida digna: a dignified life or existence. Motivated by the ‘dogma of humanism’,268 Judge Sergio García Ramíerz expressed the Court’s vision of the right to a dignified life thus: Some remarkable decisions by the Court have shifted the focus towards the other side of the right to life which . . . constitutes the other face of State duties: beyond the mere omission curbing arbitrariness or mitigating punishment, action is required to create conditions to guarantee a decent existence. In this view, the right to life is restored to its original status as an opportunity to choose our destiny and develop our potential. It is more than just a right to subsist, but is rather a right to self-development, which requires appropriate conditions. In such framework, a single right with a double dimension is set, like the two-faced god Janus: one side, with a first-generation legal concept of the right to life; the other side, with the concept of a requirement to provide conditions for a feasible and full existence, that is to say a concept among the ones considered ‘second-generation rights’, to employ a figure of speech that has become successful. Hence the principle ‘you may not kill’ and its counterpart ‘you shall favor life’. Both concepts protect the human being and bind the State.269

Such a concept is ‘potentially illimitable’ in scope, and has already been used by the IACtHR to import a broad range of socio-economic rights into Article 4 of the ACHR.270 Although it would be possible to craft a limiting principle,271 the Court has instead used the category of vulnerability to limit the classes of persons for whom it will extend a standard of enhanced state responsibility under the right to a vida digna. This socio-economic dimension of the right to life is, to some extent, informed by the fact that the ACHR prohibits discrimination on the basis of economic status.272 As such, the failure to protect a dignified life is not only a denial of the right to life, but arguably constitutes discrimination on the basis of equality under the Convention. However, it is also an important recognition 268   Separate Opinion Judge Sergio García Ramíerz in Sawhoyamaxa Indigenous Community v Paraguay, IACtHR, Judgment, 29 March 2006, Series C no 146 (2006) para 19. 269   Ibid para 18. 270   Melish, ‘The Inter-American Court of Human Rights’ above n 244 at 407. 271  Ibid. 272   J Pasqualucci, ‘The Right to a Dignified Life (Vida Digna): the Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System’ (2008) 31 Hastings International and Comparative Law Review 1, 12.

88  The Right to Housing in Regional Covenant by the IACtHR of the close connection between life and the material conditions necessary for its enjoyment. In the Yakye Axa case,273 the Court spelled out that the right to a dignified life includes at least those ‘minimum living conditions that are compatible with the dignity of the human person’.274 As further explained in the Sawhoyamaxa case, the state has, first, a negative duty in that it must protect the right by not preventing access to the conditions that may guarantee it.275 However, when people cannot access those minimum conditions on their own, the state must take ‘positive, concrete measures’ to fulfil the right to a dignified life.276 In order for the state to be held responsible in such cases, however, it must have known or had reason to know that its population were suffering in this way,277 and a causal relationship must exist between the state’s action, or failure to act, and the suffering experienced.278 Thus, state responsibility under the ACHR is ‘conduct based’279 in that a state’s failure to act to ensure the rights through ‘all necessary and appropriate measures’280 will engage the state’s responsibility under the Convention. Yet the IACtHR has not constructed a right that requires the state to provide housing or other material goods in all cases. Rather, the general obligation to protect is heightened for particular groups. In the Juvenile Re-education Institute case,281 the Court spelled out that people cannot be made, or be allowed, to live permanently in conditions that are inhumane and degrading.282 As such, when the individual or group is not in a position to take advantage of the state’s general obligation not to prevent people from accessing the conditions for a dignified life, the state itself may have a particular obligation to provide such conditions.283 The particular situations of vulnerability which the IACtHR has identified so far are those of: children and pregnant women; the elderly; prisoners and those held in other state-run institutions; and indigenous populations denied their ancestral lands.284 It is for these vulnerable populations that a substantive obligation to provide a right to housing or shelter may be implied through the 273   Yakye Axa Indigenous Community v Paraguay, IACtHR, Judgment, 17 June 2005, Series C no 125 (2005). 274   Ibid paras 162–64. 275   Sawhoyamaxa above n 268 at para 9. See also the Commission’s findings in Yakye Axa Indigenous Community of the Enxet-Lengua People v Paraguay, IA Comm HR, OEA/Ser.L/V/ II.117, doc 1 rev 1 (2003). 276  Ibid. 277   Sawhoyamaxa above n 268 at para 157. 278   Pasqualucci, ‘Vida Digna’ above n 272 at 26. 279   Melish, ‘The Inter-American Court of Human Rights’ above n 244 at 383. 280   American Convention, above n 246 at Arts 1.1 and 2. 281   Juvenile Re-education Institute v Paraguay, IACtHR, Judgment, 2 September 2004, Series C no 112 (2004). 282   Ibid paras 170–71. 283   Sawhoyamaxa Indigenous Community v Paraguay, above n 268 at 154; see also XimenesLopes (Brazil), IACtHR, Judgment, 4 July 2006, Series C no 149 (2006), citing Baldeon-Garcia (Peru), IACtHR, Judgment, 6 April 2006, Series C no 147 (2006); Pueblo Bello Massacre above n 264. 284   See Pasqualucci, ‘Vida Digna’ above n 272 at 3.



Inter-American Human Rights System  89

right to life. For example, in the Street Children case,285 the Court found the state responsible not only for a child’s ‘survival and development’ but also for providing an adequate standard of living, including through the provision of housing.286 The IACtHR will consider these more onerous obligations in light of the state’s conditions of development and other resource constraint factors, recognising that to do so gives the greatest chance that the guarantees in the human rights documents will be given actual practical effect.287 Although the concept of the vida digna provides a powerful illustration of the normative proximity of all human rights, as an ongoing technique for protecting socio-economic rights it may prove lacking. For example, Melish argues that other than in specific and extreme circumstances, such as the annihilation of an indigenous community in the Plan de Sanchez case,288 or the reduction of an indigenous community to life in subhuman conditions in Yakye Axa,289 this approach may not prove adequate for the realisation of socio-economic rights for all Americans.290 On the one hand, it is limited – so far – to those in particular circumstances of vulnerability. On the other hand, its rhetorical power is so broad as to bring almost any circumstance of material deprivation within its reach. (iii)  Remedies and Reparations, including Material Goods The state’s responsibility to provide material conditions for a dignified life could be expressed as remedial or reparatory in nature. This remedial approach can be further illustrated by the way the IACtHR has developed a doctrine of reparations that includes non-pecuniary remedies such as housing. The ACHR provides scope for a wide array of remedies, both monetary and non-monetary, to be ordered by the Court.291 In light of this wide remit, the Court has taken an innovative approach to remedies. It has granted fair compensation (which may include material and moral damages), rehabilitation, satisfaction and guarantees of non-repetition.292 The Court takes the view that reparations are designed with the aim ‘of removing the effects of the violations’.293 This principle of restitutio in integrum is of particular importance in cases where material goods 285   Case of Children’s Rehabilitation v Paraguay, IACtHR, Judgment, 2 September 2004, Series C no 112 (2004). 286   Ibid. See also Judicial Status and Human Rights of the Child, IACtHR, Advisory Opinion OC-17/02, 28 August 2002, Series A no 17 (2002) para 80. 287   Montero-Aranguren et al (Detention Centre of Catia) (Venezuela), IACtHR, Judgment, 5 July 2006, Series C no. 150 (2006) para 64; and Baldeon-Garcia (Peru), above n 283. 288   Plan de Sanchez Massacre (Guatemala), IACtHR, Judgment, 29 April 2004, Series C no 105 (2004). 289   Yakye Axa above n 273. 290   Melish, ‘The Inter-American Court of Human Rights’ above n 244 at 407. 291   American Convention Art 63(1). 292  See Loayza Tamayo, IACtHR, Judgment, 17 September 1997, Series C no 33 (1997) para 85. 293   La Cantuta v Peru, IACtHR, Judgment, 29 November 2006, Series C no 159 (2006) para 202.

90  The Right to Housing in Regional Covenant such as housing have been destroyed or lost, or where communities have been forced to flee their homes or lands. For example, in Plan de Sánchez,294 the IACtHR ordered reparations for an indigenous community whose members had been massacred by Guatemalan forces. Among other reparations, the court ordered the state to set up a village housing programme,295 which it required to meet the standards of adequacy set out in the CESCR’s General Comment 4.296 In fact, the provision of a development fund, to be administered on behalf of the community, and to be used to provide housing among other material goods, is becoming common practice when the Court finds a violation of indigenous land and human rights.297 Moreover, cases of friendly settlement before the Commission have also resulted in reparations that include the material provision of housing. In the friendly settlement of the María Mamérita Mestanza Chavez case,298 Peru was required to provide housing for the family of a petitioner who was forcibly sterilised. Likewise, in the friendly settlement in Paula Ramírez v México,299 the state agreed to pay full costs for the victim’s son’s housing, health and educational costs to the age of 18.300 Even where the specific violation has not been experienced by the whole community, the state may be required to put in place facilities, such as housing, that will benefit the whole community, as was ordered in Aloeboetoe v Suriname, for example.301 However, there is a more troubling aspect to restitution orders for vulnerable communities. As Thomas Antkowiak notes, while the attention to vulnerability is welcome, the use of such remedial development schemes may not help to overcome socio-economic discrimination. Where cash compensation awarded to indigenous communities is translated into funds for development programmes administered by experts from outside the community, rather than individual moral damages, a paternalistic approach based on an assumption that indigenous peoples would not use monetary compensation wisely is perpetuated.302 Despite the binding nature of the IACtHR’s judgments, some states have resisted the reparation orders devised by the Court. For example, notwithstanding the ruling in the Yakye Axa case, in which the Court required the state to   Plan de Sanchez Massacre above n 288.   Ibid. See also Moiwana Village above n 263. 296   Plan de Sanchez Massacre (Guetemala), IACtHR, Reparations (American Convention on Human Rights Art 63.1), Judgment, 19 November 2004, Series C no 116 (2004) para 105. 297  See eg Pueblo Bello Massacre above n 264; Ituango Massacres v Colombia above n 264; Moiwana Village v Suriname, above n 263 at paras 214–15; Yakye Axa above n 273; Sawhoyamaxa above n 268 at paras 224–25 and operative para 7. 298   María Mamérita Mestanza Chavez Case (Peru), IA Comm HR, Friendly Settlement, 22 October 2003, Report no 71/03 Petition 12.191 (2003). 299   Paula Ramirez v Mexico, IA Comm HR, Friendly Settlement, 9 March 2007, Report no 21/07 Petition 161.02 (2007). 300   Ibid para 16. 301   Aloeboetoe v Suriname, IACtHR, Reparations (American Convention on Human Rights Art 63.1), Judgment, 10 September 1993, Series C no16 (1993). 302   T Antkowiak, ‘Remedial Approaches to Human Rights Violations: the Inter-American Court of Human Rights and Beyond’ (2007) 46 Columbia Journal of Transnational Law 351, 397. 294 295



Arab Charter on Human Rights  91

demarcate and then transfer title of the community’s traditional lands to it,303 the Paraguayan government later voted not to return the lands to the indigenous community.304 The resistance of states parties to such material reparations, particularly for indigenous communities, illustrates the difficulty of realising restitutio in integrum where violations occur in the context of five centuries of dispossession and discrimination. V.  ARAB CHARTER ON HUMAN RIGHTS

The League of Arab States (the Arab League) adopted a revised Arab Charter on Human Rights which entered into force on 15 March 2008.305 The Arab Charter represents a ‘drastically redrafted’306 version of the Arab League’s previous 1994 Charter on Human Rights, which had received no ratifications.307 Nevertheless, the new Charter on Human Rights has remained controversial. Beyond the Arab World the Charter has been condemned as falling below or even undermining international human rights standards,308 although as Mervat Rishmawi (one of the Charter’s few English language commentators to date)309 notes, all Arab League states are bound by at least one UN human rights treaty, and as such cannot escape those human rights obligations through a regional human rights document.310 The Arab Charter does not draw a distinction between typologies of rights, and includes a right to housing as an element of the right to an adequate standard of living. This right is contained in Article 38, which states that: Every person has the right to an adequate standard of living for himself and his family, which ensures their well-being and a decent life, including food, clothing, housing, services and the right to a healthy environment. The States parties shall take the necessary measures commensurate with their resources to guarantee these rights.

Despite the controversy surrounding the Arab Charter’s congruence with international human rights standards, there is no inconsistency between Article 38 of   Yakye Axa above n 273 at paras 137–54.   Pasqualucci, ‘Americas’ above n 243 at 445. 305   Arab Charter on Human Rights (entered into force 15 March 2008). 306   M Rishmawi, ‘The Revised Arab Charter on Human Rights: a Step Forward? (2005) 5 Human Rights Law Review 361, 363. 307   Ibid 362. 308  D Vitkauskaite-Meurice, ‘The Arab Charter on Human Rights: the Naissance of New Regional Human Rights System or a Challenge to the Universality of Human Rights?’ (2010) 1(119) Jurisprudence 165, 173–76; see also European Parliament Directorate-General for External Policies Department, The Role of Regional Human Rights Mechanisms EXPO/B/DROI/2009/25 (2010) 5. 309   See also P Nassau-Perraki ‘The Arab Charter on Human Rights: a New Start for the Protection of Human Rights in the Arab World’ (2009) 62 Revue Hellénique de droit International 117; Vitkauskaite-Meurice, above n 308; Amnesty International Middle East and North Africa Region, Re-drafting the Arab Charter on Human Rights: Building for a Better Future AI Index MDE 01/002/2004 (2004). 310   M Rishmawi, ‘The Arab Charter on Human Rights and the League of Arab States: an Update’ (2010) 10 Human Rights Law Review 169, 170. 303 304

92  The Right to Housing in Regional Covenant the Charter and other international standards on human rights – at least not as expressed in the document itself. Article 38 reflects clearly the UDHR and the ICESCR’s standards. Whether and how the article will be interpreted remains an open question. To date, there is no Arab League statement on the right to housing or the right to an adequate standard of living. Indeed, the planned institutional reforms within the Arab League which were supposed to accompany the new Charter have yet to come into being. The Arab Court of Justice has not found support with Arab League states, and even so, the Charter does not make provision for individual complaints.311 However, an Arab Human Rights Committee now oversees the implementation of the Charter. This Committee of independent experts,312 which began its work in April 2009,313 will consider periodic State Reports and will issue its own annual report.314 The Arab Human Rights Committee appears to be taking active steps to raise awareness of its work and of the Charter,315 but has yet to issue any official documents or reports. Sweeping changes to regimes in the Arab world during 2011 and 2012 may mean that the Arab human rights machinery receives renewed support, but any such movement remains uncertain, as so much in the region. VI.  CONCLUSIONS ON THE REGIONAL PROTECTION OF THE RIGHT TO HOUSING

The regional jurisprudence on housing is some of the most developed in the world. This is particularly the case under the Revised European Social Charter, and in the budding case law in the African and Inter-American systems. The different approaches to the right to housing in these regimes illustrate the many overlapping human rights that are affected by inadequate housing or the loss and lack of a home. The judgments and decisions illustrate the way housing violations connect with traditional civil and political rights as diverse as the right to be free from cruel, inhuman and degrading treatment and the right to property, as well as with other economic, social and cultural rights such as health and the right to food. The right to housing’s cultural rights aspects are also gaining recognition, with the African and Inter-American bodies recognising the impact of housing rights deprivation on the rights of peoples to development and to the rights of indigenous communities.

  Ibid 169.   Arab Charter Art 45(1). 313   Rishmawi, ‘Update’ above n 310 at 172. 314   Arab Charter Art 48. 315   See eg FIDH ‘Human Rights organizations and Arab Human Rights Committee engage in constructive dialogue’ 21 October 2009 available at http://www.fidh.org/Human-Rights-organizations, and see also KUNA which reports that the Committee met in February 2012 with 10 experts from Arab states in Cairo, available at www.kuna.net.kw/ArticleDetails.aspx?id= 2223081&Language=en. 311 312



Conclusions on the Regional Protection of the Right to Housing  93

However, the regional examples also illustrate the difficulty faced by courts in elucidating economic, social and cultural housing issues through human rights texts that do not explicitly give jurisdiction over the right to housing. For example, although the European Court of Human Rights has recognised the ‘real indivisibility’ of rights,316 economic, social and cultural protections are nonetheless expressed through the ‘logic of the civil and political rights into which they are incorporated’.317 The difficulty of realising economic and social rights through the frame of civil and political rights also emerges in the IACtHR’s development of the right to life with dignity, the vida digna. Yet, as the constitutionalisation of the right to housing discussed in the following chapter illustrates, a right to housing implied through civil and political rights may offer a richer and more powerful justification for the protection of housing as a human right than an explicitly crafted right to housing has achieved.

  Brems, ‘Indirect Protection of Social Rights’ above n 140 at 138.  Ibid.

316 317

4 The Right to Housing as a Constitutional Right: South African and Indian Experiences I. INTRODUCTION

T

HE TWO NATIONAL constitutions considered in this chapter offer some of the world’s most high profile and significant jurisprudence on the right to housing. The approach taken in each rests on a distinct conceptual foundation, and represents a reaction to a specific situation of social deprivation within the state. Thus, each jurisdiction offers a novel response to the protection of a right to housing. In South Africa, an explicit right to housing was included as a separate provision in the post-Apartheid Constitution. Unambiguously open to judicial enforcement, the resulting jurisprudence on Article 26 has had a profound impact on how the relationship between economic, social and cultural rights and the courts is conceived. The right to housing in India has been implied into the Constitution through judicial expansion of the protections of Article 21, the right to life. The jurisprudence of the Indian Supreme Court represents the most richly textured judicial justification for a right to housing yet embraced. Each approach, however, has its own limitations. In South Africa, the transformative aims of the Constitution have failed to result in actual social change through the enforcement of the right to housing. In India, the judicial rhetoric has provided a profound conceptual foundation for the right to housing, but has, ultimately, proved an unstable one on which to ground a claim, as the shifting judicial discourse shows. I begin by examining the South African experience, before turning to consider the development and implications of the right to housing in India.

II.  A JUSTICIABLE RIGHT TO HOUSING: THE SOUTH AFRICAN EXPERIENCE

South African constitutional housing rights protection is, without doubt, the most widely cited, internationally applauded and academically analysed of any



A Justiciable Right to Housing: The South African Experience  95

jurisdiction. The seminal Grootboom1 judgment of the Constitutional Court is known well beyond the borders of South Africa. In addition, perhaps more than any other, the South African experience of adjudication on the right to housing has changed the debate on the justiciability of economic and social rights across the world. South Africa’s inclusion of a constitutional right to housing was explicitly based on the potential for the right to bring the excluded citizens of South Africa within the new, post-Apartheid nation, and to overcome the denial of rights that was the legacy of Apartheid.2 The post-Apartheid Constitution thus has socially and politically transformative aims,3 with a Preamble explicitly pointed towards the achievement of social justice.4 Yet despite the transformative aims of the Constitution, and significant housing policies designed to improve the situation, the lived experience of housing in South Africa remains one in which millions of people still suffer in inadequate living conditions, in continuing physical and social marginalisation. It is in this context that the jurisprudence must be understood. Apartheid policies were based on a logic of spatial marginalisation – Apartheid translates literally as ‘apartness’ – which simultaneously created and reinforced the political and material dispossession of black and ‘coloured’ South Africans. Amongst other highly discriminatory pieces of legislation, the Group Areas Act5 segregated ‘black’, ‘coloured’ and ‘white’ communities, relegating black communities to just 14 per cent of South Africa’s territory.6 These and associated laws were used as ‘an extremely sophisticated system of control,’7 that underpinned the ‘economic, ideological, and demographic objectives’8 of the white minority and systematically denied political citizenship to the black majority. Policies of ‘influx control’ and forced removal enforced this spatial 1   Government of the Republic of South Africa and others v Grootboom and others (CCT11/00) [2000] ZACC 1 (21 September 2000). 2   A Sachs, ‘The Creation of South Africa’s Constitution’ (1997) 41 New York Law School Law Review 669, 671–72. 3   P De Vos, ‘Grootboom, the Right of Access to Housing and Substantive Equality as Contextual Fairness’ (2001) 17(2) South Africa Journal on Human Rights 258. See also KE Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146; S Liebenberg, ‘Needs, Rights and Transformation: Adjudicating Social Rights’ (2006) 17 Stellenbosch Law Review 5; M Mutua, ‘Hope and Despair for a New South Africa: the Limits of Rights Discourse’ (1997) 10 Harvard Human Rights Journal 63, 63–64. 4   Constitution of the Republic of South Africa, Act no 108 of 1996 (promulgated 18 December 1996, commencement 4 February 1997), Preamble. 5   Group Areas Act. Act 41 of 1950 as amended by Act 77 of 1957 and Act 36 of 1966 (repealed 30 June 1991 by the Abolition of Racially Based Land Measures Act no 108 of 1991). 6   R Wolf, ‘Participation in the Right of Access to Adequate Housing’ (2007) 14(2) Tulsa Journal of Transnational and Comparative Law 269, 271. 7   AL Higginbotham, Jr, FM Higginbotham and SS Ngcobo, ‘De Jure Housing Segregation in the United States and South Africa: the Difficult Pursuit of Racial Justice’ (1990) 4 University of Illinois Law Review 763, 779–80. See also Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and others (CCT 22/08) [2009] ZACC 16 (10 June 2009) paras 191–98. 8  Higginbotham et al, ‘De Jure Housing Segregation in the United States and South Africa’ above n 7 at 779–80.

96  The Right to Housing as a Constitutional Right segregation. Relegated to the poorest and least habitable areas, cut off from equal participation and opportunity, and denied any but the most rudimentary services and infrastructure, the overwhelming majority of South Africans lived in inadequate housing, with no security of tenure, little access to services, materials, facilities or other infrastructure, and no freedom of movement. As a direct result, the housing situation in South Africa is one of dire need and continuing injustice, where forced evictions persist motivated by the drive for development and urban renewal, and relocations and displacements plague communities across the state.9 Thus, as Constitutional Court Judge Albie Sachs has noted, questions about the right to housing are also questions about how to bring into society those citizens whose lives ‘have been spent in systematised insecurity on the fringes of organised society’.10 The Constitution brings fully justiciable socio-economic rights to its people, including a right to access to housing. The relevant provision is section 26(1): Everyone has the right to have access to adequate housing.

This statement is then tempered by section 26(2), which requires that: The state must take reasonable legislative and other measures, within its available resources, to achieve progressive realisation of this right.

The second clause thus sets limits on the governmental obligations to fulfil the right. The third clause, section 26(3) concerns evictions, and states that: No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

In addition, under section 28(1)(c) every child has the right to basic nutrition, shelter, health care services and social services. Section 28 is not qualified by the progressive realisation requirements of section 26. The state is constitutionally required by section 1 of the Constitution to respect, protect, promote and fulfil these rights, in light of the underlying constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms set out in section 7. It is within this specific historical context and institutional framework that the South African Constitutional Court has been called upon to consider the right to housing. The seminal case Government of the Republic of South Africa and others v Grootboom and others,11 handed down in 2000, illustrates the Constitutional Court’s approach to the interpretation of the right to housing, which it has followed in more recent cases, though these have not gained the international attention given Grootboom. Nevertheless, the Court’s jurisprudence now covers   Grootboom, above n 1 at para 6.   Joe Slovo, above n 7 per Sachs J at para 177.   Above n 1.

9 10 11



A Justiciable Right to Housing: The South African Experience  97

the right to housing in the context of evictions, the duty of the state to engage meaningfully with persons whose housing rights are to be affected, the balancing of constitutional property rights against the right to housing, and the constitutionality of legislation in light of section 26. A.  Crafting a South African Approach to the Right to Housing: the Grootboom Case Grootboom has been hailed as a victory for the enforcement of positive, socioeconomic rights, with the Constitutional Court declaring the government’s long-term housing plan unreasonable, and thus in breach of section 26. But it has also been viewed as a great disappointment and a wasted opportunity in the quest for social justice. Grootboom and the Court’s subsequent cases on the right to housing are guided by a ‘reasonableness’ approach to socio-economic rights realisation that has polarised opinion both within and beyond South Africa. In the Grootboom case, Mrs Grootboom challenged the forced eviction of her community from their previous informal settlements. At the time of the application to the Court, the community of 390 adults and 510 children12 was living on a sports field, in the barest of shelters. They had been forcibly evicted, and their homes and belongings destroyed, in a bid to clear the land they had previously inhabited for regularised housing development for other informal settlers.13 As Justice Yacoob characterised it in the unanimous judgment, the eviction had been carried out: prematurely and inhumanely: reminiscent of apartheid-style evictions. The respondents’ homes were bulldozed and burnt and their possessions destroyed. Many of the residents who were not there could not even salvage their personal belongings.14

In considering what to do with the right to housing presented to it, the Court compared the South African constitutional right with the relevant international law, notably Article 11(1) of the ICESCR, and its interpretation in General Comments 4 and 7. However, while it noted that South Africa has international obligations under the ICESCR, the Court stressed the difference between the formulation of the right in the ICESCR and in the Constitution.15 Specifically, in the South African context, the right is a right to access to adequate housing, rather than a right to housing as under the ICESCR. This, they held, means that the right:

12   Irene Grootboom and others v Oostenberg Municipality (Case no 6826/99), High Court of South Africa (Cape of Good Hope Provincial Division, Judgment, 17 December 1999. 13   Grootboom, above n 1 at para 4. 14   Ibid para 10. 15   Ibid para 28.

98  The Right to Housing as a Constitutional Right entail[s] more than bricks and mortar. It require[s] available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself . . . There must be land, there must be services, there must be a dwelling.16

The Court also noted that section 26 places both negative17 and positive18 obligations on the state, which would depend on context, and which are to be understood in light of three conditions: the state’s obligation to take reasonable legislative and other measures; to achieve the progressive realisation of the right; within available resources.19 Progressive realisation was given the same meaning as in the CESCR’s General Comment 3.20 The Court stated that this required that housing be made available, over time, to a greater number and larger range of people.21 As to the question of available resources, the Court merely noted that the state could not be expected to do more than resources allowed.22 To this point, despite the Court’s insistence on the distinction between the ICESCR and its own constitutional rights, the statements appear to mirror the approach to the right to housing under the ICESCR, both in the contextual view of housing as not only dwelling, but as dwelling located and serviced, and in the progressive levels of obligation on the state. Where the Court did diverge from the CESCR’s work was in declining to import the concept of minimum core obligations into the South African Constitution.23 Instead, the Court employed the concept of ‘reasonableness’. It is this concept that now characterises the South African approach to socio-­ economic rights adjudication. In Grootboom, the approach is set out as follows: the precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable . . . A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable.24   Ibid para 67.   Ibid para 34. 18   Ibid para 38. 19  Ibid. 20   Ibid para 45. 21  Ibid. 22   Ibid para 46. 23   Former Constitutional Court Judge R Goldstone has written that the Court’s decision not to follow a minimum core approach in Grootboom was based on the fact that this approach had not been pleaded at the trial level, and that as a result ‘there was no evidence at all’ that would have enabled the Court to determine what such a minimum core might constitute. On this reading it remains open to the Court to adopt such an approach in future should litigants plead in this manner. See R Goldstone, ‘Foreword’ in V Gauri and DM Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York, Cambridge University Press, 2008) xi–xii. See also Grootboom above n 1 at paras 32–33. 24   Grootboom, above n 1 at paras 68–69 (emphasis added). 16 17



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In the specific factual circumstances of the case, the Court held that reasonable legislative and other measures included the creation of a national public housing plan,25 which must take into account short, medium and long-term aims, and which must not ignore significant segments of the population,26 particularly those worst off.27 Within this framework, the Court evaluated the state’s housing programme, and found it unreasonable in that it had failed to provide for the most needy – those such as Mrs Grootboom and her community.28 In addition, the Court held that the manner of the eviction was in violation of the negative obligations contained in section 26(1).29 The outcome of the reasonableness enquiry turned on the Court’s understanding of the state’s obligations under section 26(2). Early responses to Grootboom were positive and the judgment remains widely regarded as a remarkable victory for the justiciability of the obligations contained in socio-economic rights.30 At the same time, advocates have heralded the decision as an example of appropriate judicial restraint in the adjudication of rights with significant economic implications.31 However, in July 2002, the Grootboom families were still living on a sports field in makeshift shelters.32 In fact it was not until another group of desperate plaintiffs brought a petition before the courts that the Constitutional Court’s declaratory order was made subject to court supervision in 2004, and even in 2005 when a subsequent action was brought, the city had not fully complied with its constitutional obligations to Mrs Grootboom and the other plaintiffs.33 In 2008, Mrs Grootboom died. Only in her 40s, she and her family were still housed in an inadequate shack while they waited for an ‘adequate’ house, despite the judgment won in her name.34 In light of this reality, it is perhaps not surprising that the Grootboom judgment is now generally subjected to a harsher appraisal. B.  Reasonableness and its Discontents The reasonableness approach is now considered settled law in South Africa. However, the enquiry into reasonable state action, and the accompanying   Ibid para 41.   Ibid para 43.   Ibid para 44. 28   Ibid para 69. 29   Ibid para 89. 30   See eg De Vos, ‘Grootboom’ above n 3; C Sunstein, ‘Social and Economic Rights? Lessons from South Africa’ (2001) 11 Constitutional Forum 123; and JM Woods, ‘Justiciable Social Rights as a Critique of the Liberal Paradigm’ (2003) 38 Texas International Law Journal 763. 31   See Sunstein, ‘Social and Economic Rights?’ above n 30 and Woods, ‘Justiciable Social Rights as a Critique of the Liberal Paradigm’ above n 30. 32   C Bisseker, ‘Nought for their Efforts’, Financial Mail, 5 July 2002. 33  D Bilchitz, Poverty and Fundamental Rights: the Justification and Enforcement of SocioEconomic Rights (Oxford, Oxford University Press, 2007) 151–52. 34   C Mbazira, ‘Non-Implementation of Court Orders in Socio-Economic Rights Litigation in South Africa: Is the Cancer Here to Stay?’ (2008) 9(4) ESR Review 2, 3. 25 26 27

100  The Right to Housing as a Constitutional Right interpretive techniques employed in Grootboom and later housing cases, have had their share of critics. The first criticism of the jurisprudence concerns the way in which the Court’s reasonableness enquiry has resulted in the undue limitation of the normative content of the right to housing. Although we know that ‘[t]here must be land, there must be services, there must be a dwelling’,35 the Court has yet to define the normative content of section 26(1) beyond this bald statement. Section 26(1) is, on its face, qualified only by the word ‘adequate’: the government is obliged to provide access to housing which reaches the standard of adequacy and not more. However, rather than beginning by fleshing out a comprehensive ‘right to have access to adequate housing’ in section 26(1), the Court’s reasoning in Grootboom takes its starting point as section 26(2), which concerns itself with limitations on government obligations. Whether this ‘interpretive move’36 means that the Court looks upon the positive aspects of section 26(1) as ‘contained in their totality’ in section 26(2),37 the effect to date has certainly been to circumscribe the content of the right. The deference owed to the government in defining reasonable action appears to extend to an undue deference to the state in defining the content of the right itself – a deference that is unsupported by the text of section 26.38 Thus, reasonableness appears to be largely divorced from the question of content, which commentators note may be incompatible with South Africa’s international legal obligations and with the ‘transformative aims’ of its Constitution.39 A further problem with the reasonableness enquiry is illustrated by the way the enquiry has been carried out in subsequent cases. For example, in the Joe Slovo case,40 Justice Yacoob expressed the reasonableness test in a way that appears to deny the section 26 rights of the applicants at the expense of the section 26 rights of South Africans not before the Court. Yacoob J stated that the applicants ‘are being evicted and relocated in order to facilitate housing development. In the circumstances their eviction constitutes a measure to ensure the progressive realisation of the right to housing within the meaning of section 26(2) of the Constitution’.41 Here, the reasonableness enquiry has the uncanny result of inverting the rights entitlements in question in the case, such that the   Grootboom, above n 1 at para 67.   D Brand, ‘The Proceduralisation of South African Socio-Economic Rights Jurisprudence, or “What are Socio-Economic Rights For?” ’ in H Botha, A van der Walt and J van der Walt (eds), Rights and Democracy in a Transformative Constitution (Stellenbosch, Sun Press, 2003) 39 (footnotes omitted) and 46; see also D Davis, ‘Socio-economic Rights: the Promise and Limitation – the South African Experience’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007) 200–2. 37   Brand, ‘The Proceduralisation of South African Socio-Economic Rights Jurisprudence’ above n 36 at 38 (footnotes omitted). 38  Bilchitz, Poverty and Fundamental Rights above n 33 at 143. 39   M Pieterse, ‘Coming to Terms with Judicial Enforcement of Socio-economic Rights’ (2004) 20 South African Journal on Human Rights 383, 410–11. 40   Above n 7. 41   Ibid per Yacoob J at para 114. 35 36



A Justiciable Right to Housing: The South African Experience  101

constitutional rights of those not before the Court appear, through the reasonableness test, to ‘trump’ the right to housing of the plaintiffs. There are suggestions that the Court may now be seeking to imply some normative content into the right to housing through section 26(2). For example, Moseneke DCJ stated in the Joe Slovo case that the Court considered section 26(2) to require that evictions by the state should not occur without the provision of alternative housing,42 despite an earlier ruling in the Port Elizabeth case that section 26(3) granted only negative rights.43 Nevertheless, the limited interpretation of the normative content of the right to housing has largely endured in later important cases, in that it remains the case that the Court has not, as yet, defined what the right to housing is. For example, in Occupiers of 51 Olivia Road,44 the Court was required to consider the efforts of private landlords to remove the residents of ‘bad’ buildings in the Centre of Johannesburg. The landlords sought the ‘urban renewal’ of these buildings, currently functioning as the homes of poor families, who had moved in after the flight of white South Africans from the inner cities in the immediate post-Apartheid days.45 In this case, the Court’s enquiry into the reasonableness of the state’s action turned on whether the state had adequately consulted or ‘engaged’ with the potential evictees. The Court held that the state had: shown a willingness to engage. As a result, the desperate situation of the occupiers has been alleviated by the reasonable response of the city to the engagement process. There is no reason to think that future engagement will not be meaningful and will not lead to a reasonable result.46

In this case, the Court appeared to view any unreasonableness in the state’s action as curable by the state’s reasonable consultation process with potential evictees. Some commentators are heartened that the Court has implied a duty to engage or consult as part of its approach to the right to housing. Sandra Fredman argues that the deliberative process of consultation in Occupiers of 51 Olivia Road not only gave ‘a real voice in the decision-making process’ to those with little political or social power, but is also ‘an important demonstration of the ways in which a Court can trigger deliberative decision-making in the shadow of the law’.47 Such consultation can, she argues, enhance deliberative democracy.48 Katharine Young also argues that the ‘normatively charged account of reasonableness’ developed by the Court is preferable to a value-based   Ibid per Moseneke DCJ at paras 169 and 214.  See Port Elizabeth Municipality v Various Occupiers (2005) (1) SA 217 at para 20. 44   Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and others (2008) (3) SA 208. 45   J van der Walt, ‘Johannesburg: a Tale of Two Cases’ in A Philippopoulos-Mihalopoulos (ed), Law and the City (Oxford, Routledge, 2007). 46   Occupiers of 51 Olivia Road above n 44 at para 34. 47  S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (New York, Oxford University Press, 2008) 121. 48   Ibid 211. 42 43

102  The Right to Housing as a Constitutional Right minimum core as it is ‘more normatively open and sociologically framed’ and as such facilitates the deliberative exercise that is necessary in the transformative constitutional context of the state.49 Similarly, Sonkita Conteh and Bret Thiele, commenting on the Joe Slovo case, argue that ‘by insisting on meaningful engagement, the judgment seeks to strip “forceful eviction” of its inherent violence and indignity’, thus resulting in a ‘relocation’ rather than an ‘eviction’.50 And in fact, in the Olivia Road case the process of engagement and consultation was undoubtedly positive for the residents of 51 Olivia Road. Brian Ray notes that the final outcome was a settlement providing most of the relief that the residents had sought.51 In the context of consultations, the Constitutional Court’s orders can include a significant amount of detail (which could indeed be considered as substantive content) on the specifics of reasonable or adequate engagement. For example, the order in the Joe Slovo case sets out specific criteria for reasonable engagement. These include detailed standards for the temporary accommodation to be provided for those to be relocated, including size of dwellings, provision of materials, facilities and infrastructure, and specification of adequate locations for the temporary dwellings,52 as well as a timeline for the engagement process to take place.53 However, the emphasis on procedures of engagement still shifts the emphasis from the reasonableness of the solution to the reasonableness of the steps taken, moving away from a transformative, substantive right, towards administrative oversight of government procedure. The implications of this move are illustrated in the wake of the Court’s Joe Slovo judgment, examined further below. In this case, the Court’s supervised order was based on the parties’ fulfilment of a specific timeline. When the government failed to move forward in line with the timeline the Court’s order was rescinded and the plaintiffs’ efforts to gain housing were left without judicial oversight.54 In many of the cases concerning the dire housing situations of South Africans, the Court not only moves away from the substance of the right to housing, but also moves away from considering the fact situation as one that engages constitutional rights at all. In 51 Olivia Road the Court stated that there was ‘no need’ for it to consider ‘whether PIE [the Prevention of Illegal Eviction Act] applies in the present case or to expand on the relationship between section 26 and the PIE’. This was despite the fact that the PIE Act was explicitly brought into being 49   K Young, ‘The Minimum Core of Economic, Social and Cultural Rights: A Concept in Search of Content’ (2008) 33 Yale International Law Journal 113, 140. 50   S Conteh and B Thiele, ‘Analysis of the Judgment of the Constitutional Court of South Africa in the Joe Slovo Community Evictions Case’ (2009) 6(3) Housing and ESC Rights Law Quarterly 1, 4. 51   B Ray, ‘Residents of Joe Slovo Community v Thubelisha Homes and Others: the Two Faces of Engagement’ (2010) 10 Human Rights Law Review 360, 361. 52   Joe Slovo, above n 7 at para 7. 53  Ibid. 54   Residents of Joe Slovo Community, Western Cape v Thebelisha Homes and others (CCT 22/08) [2011] ZACC 8 (31 March 2011). See further Section II C below.



A Justiciable Right to Housing: The South African Experience  103

to ensure that the provisions of section 26(3) were complied with.55 The Court noted that a constitutional question ‘may never arise if the city engages meaningfully with those people who would be homeless if evicted by it’.56 Similarly, the Kyalami Ridge57 case concerned efforts by the state to set up an emergency ‘transit camp’ on the site of a local prison for those rendered homeless by flooding. Local residents challenged the plans as contrary to zoning laws and to administrative justice, as the local government had failed to consult with them before settling the victims within the grounds of the detention centre. While the powers of the government to provide relief to the flood victims under section 26 were clearly in issue, the unanimous judgment focused instead on administrative law issues such as the state’s duty to consult with the formally housed residents, rather than squarely tackling the tensions between property rights and housing rights brought to light by the case. A similar example is the case of Modderklip Boerdery,58 which involved balancing the rights of an owner to property, and the rights of 40,000 squatters to housing. Although argued through three court levels on the basis of section 26, the Constitutional Court finally ruled on the basis of the rule of law and the right to an effective remedy,59 thus avoiding a decision on the appropriate balance to be struck between the protection of property and the right to housing. Andre van der Walt notes that the state’s approach to the problem in the Modderklip case was one that assumed that the enforcement of the eviction order was ‘a purely private matter and that it did not have to or want to get involved’.60 In the context of South Africa’s continuing situation of housing rights deprivation, van der Walt argues that, ‘it was only possible to adopt the state’s attitude if one were willing to ignore the social, political and historical context of the case’.61 C.  Joe Slovo: Recovering the Social, the Political and the Historical? As Andre van der Walt notes, the jurisprudence emanating from the South African Constitutional Court often appears to be decided in a social and political vacuum.62 While the Court has, at times, mentioned the history of Apartheid, the findings in the cases themselves appear divorced from the historical, social   Joe Slovo, above n 7 at para 142 per Moseneke DCJ.   Occupiers of 51 Olivia Road, above n 44 at para 38.   Minister of Public Works and others v Kyalami Ridge Environmental Association and others (2001) (3) SA 1151. 58   President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (2005) (5) SA 3. 59   Ibid para 50. 60   A van der Walt, ‘The State’s Duty to Protect Property Owners and the State’s Duty to Provide Housing: Thoughts on the Modderklip Case’ (2005) 21 South African Journal on Human Rights 144, 147. 61   Ibid 148. 62  Ibid. 55 56 57

104  The Right to Housing as a Constitutional Right and political realities of overcoming its legacy. The judgments privilege procedure over substance. They move away from the constitutional question where possible, and employ a standard of reasonableness that appears both unduly deferential, and at the same time inappropriate in principle, to determine questions of the nature the Court is presented with. However, the most recent case to come before the Constitutional Court on the issue of the right to housing, Joe Slovo, may illustrate a shift, with the Court reinserting the questions of the social, the political and the historical into its reasoning, and paying significant attention to how these factors actually affect the conditions of housing in South Africa. Like Grootboom, the Joe Slovo case concerned the eviction of a large community from their informal settlements to make way for new and better quality formal housing.63 The 4,000 families affected by the relocation were to be moved to a ‘hastily developed’ relocation settlement, a significant distance away from the city, and thus from their livelihood and educational opportunities.64 Nevertheless, the informal settlers initially supported the project based on the understanding that they would be able to return and be rehoused in new, low cost housing in their previous community. However, as construction continued, these expectations were not fulfilled and a wave of protest grew. The developer responded to these protests by seeking an injunction and immediate eviction order in the Cape High Court under the PIE Act. In Joe Slovo, the Constitutional Court was confronted with the question of whether informal dwellers or squatters on public land could be termed ‘unlawful occupiers’ under the PIE Act.65 The question was not just a technical legal one, because, as the Court admitted, the term ‘unlawful occupier’ carries the heavy baggage of discrimination, dispossession and denial of land and rights to black South Africans.66 While overall, and in line with the Court’s previous case law, the judgment can be seen as ‘highly permissive regarding government policy’67 it is more critically self-aware of the Court’s role in overcoming the Apartheid housing legacy. The judgment also shows an increasing dissatisfaction with the administrative law approach used in previous eviction cases and displays an increased attention to social context. It is highly significant that this judgment contained five separ­ate 63   Joe Slovo, above n 7 at para 18 per Yacoob J. Langa CJ and Van der Westhuizen J concurred with Yacoob J’s judgment. 64   Ray, above n 51 at 362. 65   The Act defines an unlawful occupier as: ‘A person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996 (Act No 31 of 1996)’. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act no 19 of 1998 (5 June 1998) s 1. 66   Joe Slovo, above n 7 per Yacoob J at para 58. 67   K Young, ‘A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review’ (2010) 8 International Journal of Constitutional Law 385, 406.



A Justiciable Right to Housing: The South African Experience  105

opinions, illustrating for the first time in a case considering section 26 that the Court’s approach to social rights jurisprudence is contested from within. Despite the more reflective and contextual approach of the judgment, the case nonetheless is ‘the largest judicially sanctioned eviction’ in South Africa since the end of Apartheid.68 As such, its impact as a development in the jurisprudence on the right to housing must be read in light of its impact on the actual enjoyment of housing for the residents of the Joe Slovo settlement. In the Constitutional Court, the applicants argued that they had either express or tacit consent to occupy the municipal land in question,69 given that the city had, over the years, provided improved services and facilities for the community and had consulted, negotiated and engaged with them over their occupation of the site.70 Thus, they argued, they could not be considered ‘unlawful occupiers’ under the PIE Act. They also relied on the fact that the city had previously refrained from evicting them or asking them to leave.71 The state replied that the improvements and consultations did not indicate any transfer or recognition of rights, but merely ‘humanitarian considerations’.72 In the end, all the Judges agreed that the residents of the Joe Slovo community were indeed ‘unlawful occupiers’73 and ordered their eviction, albeit only after a process of structured consultation, after ensuring that the relocation accommodation would be of an adequate standard, and perhaps most significantly from the point of view of a substantive right to housing, with the proviso that 70 per cent of the new homes constructed would go to the evicted residents themselves.74 Four of the five judges founded their decisions on the fact that the occupiers had had tacit consent to occupy the land, though that had now been revoked,75 while one found there had been no consent.76 The Court also retained jurisdiction over the eviction process, and set out a detailed timetable for the resettlement.77 Nevertheless, the supervised order was almost immediately suspended, and the Constitutional Court’s subsequent decision considering whether the supervised eviction order should be rescinded or discharged in light of changed circumstances78 illustrates that despite the prescriptive tone of the order, in fact, the Joe Slovo judgment ‘opened the door to renegotiating the decision itself’.79 68   Legal Resources Centre, Residents of Joe Slovo Lose and Win in the Constitutional Court (16 June 2009), available at http://www.lrc.org.za/index.php?option=com_content&view=article &id=1008:2009-06-16-residents-of-joe-slovo-lose-and-win-in-the-constitutional-court-lrc&catid =83:press-releases&Itemid=855; cited in Ray, ‘Residents of Joe Slovo Community v Thubelisha Homes and Others’ above n 51 at 366. 69   Joe Slovo, above n 7 at para 37 per Yacoob J. 70   Ibid paras 19–25 per Yacoob J. 71   Ibid para 42 per Yacoob J. 72   Ibid para 39 per Yacoob J. 73   Ibid para 178 per Ngcobo J. 74   Ibid paras 5–7. 75   Ibid per Moseneke DCJ at paras 148 and 153; per O’Regan J at paras 278–80; per Sachs J at para 329. 76   Ibid per Yacoob J at para 48. 77   Ibid paras 5–7. 78   Joe Slovo, Judgment on rescinding the Order, above n 54 at para 1. 79   Ray, ‘Residents of Joe Slovo Community v Thubelisha Homes and Others’ above n 51 at 370.

106  The Right to Housing as a Constitutional Right Regardless of the feasibility of implementing the Court’s order, Joe Slovo is an important indication of the Constitutional Court’s changing approach to the right to housing in the South African Constitution. Across the separate opinions, there was broad agreement that the situation of ‘unlawful occupation’ could not be seen in isolation from its deep historical roots in the Apartheid system, and that this was a relevant factor in any constitutional rights adjudication. Moseneke DCJ noted that Apartheid had caused ‘endemic land displacement and homelessness for the majority of our citizens’.80 Meanwhile, Yacoob J argued that the history of Apartheid imbues the phrase ‘unlawful occupier’ with ‘deeply painful and pejorative connotation[s]’ that unlawful occupiers are ‘devoid of any humanity’.81 Meanwhile, Ngcobo J set out a history of the laws and policies which led to the current housing crisis, and thus to the living conditions of the Joe Slovo community.82 Accordingly, several of the judgments illustrate dissatisfaction with the ‘either/ or’ nature of legal title versus the status of ‘unlawful occupier’ in the context of this history.83 Moseneke DCJ stated that the Court must find that the community had been implicitly granted leave to occupy the land, at least on a temporary basis until housing could be provided: To hold otherwise . . . means that although our constitutional scheme accepts that the right to have access to adequate housing will be achieved progressively and within available resources, those who live on state land waiting to be provided housing do so as perpetual outlaws and are thus open to eviction as unlawful occupiers.84

Similarly, Ngcobo J noted his ‘grave doubts’ about using the PIE Act to ‘brand’ residents of informal settlements as ‘unlawful occupiers’85 in order to engage the relocation process under the government’s various national housing schemes. Further, Sachs J stated that even the most meagre of shelters could bring otherwise isolated and marginalised individuals into a ‘community, with all the social interaction and organised facilities that living within a settled neighbourhood provides’.86 By building their shanties at the Joe Slovo settlement, individuals ‘escaped the status of pariahs who had been historically converted by colonial domination and racist laws into eternal wanderers in the land of their birth’.87 Nevertheless, some judges, notably Yacoob J, were able to see the eviction and resettlement as part of a cost-benefit analysis for the greater good of South African society. He stated that while the relocation would entail ‘immense hard  Joe Slovo, above n 7 per Moseneke DCJ at para 147 (footnote omitted).   Ibid per Yacoob J at para 68. 82   Ibid See Ngcobo J at paras 191–97. 83   Ibid See Moseneke DCJ at para 148; O’Regan J at para 291; Sachs J at para 343. 84   Ibid per Moseneke DCJ at para 153. 85   Ibid per Ngcobo J at para 218. 86   Ibid per Sachs J at para 354. 87   Ibid per Sachs J at para 354 (footnote omitted). 80 81



A Justiciable Right to Housing: The South African Experience  107

ship’ which could never be eliminated but only mitigated for those to be evicted, even so, ‘[t]here are circumstances in which there is no choice but to undergo traumatic experiences so that we can be better off later’.88 This statement suggests that the hardships and trauma associated with development will be borne by some, to the advantage of others. Moreover, it suggests that rights’ violation can actually lead to rights’ realisation – though not necessarily for the same individuals. Moseneke DCJ found this approach to the rights in question unpalatable. He argued that without the Constitutional Court’s guarantee that the Joe Slovo residents would be allocated 70 per cent of the new housing to be constructed, the applicants would become ‘sacrificial lambs to the grandiose national scheme to end informal settlements when the residents themselves stood to benefit nothing’.89 Both Moseneke DCJ and Yacoob J’s statements illustrate that the judges are aware that the provision of housing in South Africa is a question of social citizenship and political participation. As Sachs J noted, in concluding his judgment, the Constitution ‘expands the concept of citizenship . . . for the benefit of all the people who live in the country and to whom it belongs’.90 But at the same time, the Constitution is based on the ‘reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the well-being of the community as a whole’.91 As Sachs J’s statement shows, the difference between Moseneke DCJ and Yacoob J is less a difference of approach, and more a difference in the balance to be struck between who must sacrifice what in the joint project that is postApartheid South Africa. Joe Slovo illustrates that the South African Constitutional Court justices may be moving away from the more legalistic, private law-like approach seen in earlier housing rights cases, towards a more contextual and substantive jurisprudence. While Yacoob J’s judgment employed and relied on private law principles, Moseneke DCJ’s judgment rejected this approach, and Sachs J argued that ‘[t]his is not a matter in which formal legal logic alone can solve the conundrum of how to do justice to the one side without imposing a measure of injustice on the other’,92 also seeking to move the interpretation of the rights involved from a private law to public law paradigm.93

  Ibid per Yacoob J at para 106.   Ibid per Moseneke DCJ at para 138. 90   Ibid per Sachs J at para 408. 91  Ibid. 92   Ibid per Sachs J at para 331. 93   Ibid paras 343–44. 88 89

108  The Right to Housing as a Constitutional Right D.  Conclusions on the South African Approach to the Right to Housing The major criticisms of the South African Constitutional Court’s approach to the right to housing stem from the discomfort felt with the lack of normative content the Court has given to the right. However, even critics recognise that valid reasons for the Court’s apparent timidity may exist. These include the desire to ensure its own institutional legitimacy94 and to avoid ideological ‘headlong clashes’ with the government.95 Less than two decades of South African jurisprudence on the right to housing has already generated a great deal of serious analysis of the practical implementation of a complex, multifaceted right in a national constitution, lending a legitimacy to the right to housing not previously enjoyed. Detractors who once complained that judicial enforcement of the right to housing would destroy the separation of powers and empower judges beyond their mandate have yielded to critics who suspect the Court has not gone far enough, and that amidst the growing discussion of the right, its substantive content has slipped away.96 Future cases will no doubt clarify and further develop the right to housing under the South African Constitution, which for a young constitutional provision has had a significant impact on understandings of the right to housing across the world. For now, however, it seems clear that the South African judiciary will follow an independent path from that suggested by the CESCR, or that laid down in any of the regional systems. India, discussed below, has also followed its own path in the creation of a right to housing. I turn now to discuss its example. III.  THE RIGHT TO HOUSING AS A RIGHT TO LIFE: THE INDIAN APPROACH

A. Introduction The international and regional regimes examined above illustrate that, at times, a right to housing implied through other rights can make a strong contribution to the normative development of the right, and to its practical enjoyment. This is the case in India, where the Constitution contains no right to housing, but where the Indian Supreme Court has implied such a right into the right to life in Article 21. The resulting jurisprudence has had a deep, although ultimately unstable, impact on the protection of housing, particularly in informal settlements, in the Indian state.97  Fredman, Human Rights Transformed above n 47 at 114.   Davis, ‘Socio-economic Rights’ above n 36 at 203. 96   P O’Connell, ‘The Death of Socio-economic Rights’ (2011) 74 Modern Law Review 532, 549– 52. 97   See further Chapter 8. 94 95



The Right to Housing as a Right to Life: The Indian Approach  109

Although the Indian Supreme Court has widely employed international norms to inform its understanding of the Indian human rights system,98 the Indian jurisprudence on the right to housing is analytically separate from the right to housing as codified and interpreted in the international human rights Covenants; that is, the jurisprudence on the right to housing has emerged from the Indian Supreme Court’s broad view of the right to life in Article 21. This right, which appears as a classically formulated civil and political right, states merely that: no person shall be deprived of his life or personal liberty expect according to procedure established by law.

Although in the early years the Supreme Court employed a literal interpretation of the Constitution,99 by the 1970s the Court’s stance had shifted to encompass a commitment to social justice through judicial activism. The Supreme Court has thus ‘pioneered’ novel forms of litigation, including public interest litigation (PIL), to achieve the integration of socio-economic goals through fundamental rights.100 These novel forms are accompanied by equally innovative remedies. The remedies, which are ‘unorthodox and unconventional’, are ‘intended to initiate positive action on the part of the state and its authorities’.101 Despite some controversy and doubt as to the efficacy and appropriateness of such remedies,102 they have been largely accepted as legitimate. Indeed, the legislature and executive at state, national and local levels do engage with the judicial orders, which often require the government to put new policies in place, take active steps to create certain social conditions, and take on other judicially mandated tasks. The housing rights jurisprudence is a prominent example of these novel forms of litigation and remedies. As GB Reddy evocatively writes, the Indian Supreme Court has seen Article 21 as ‘pregnant with many kinds of individual and social rights of various attributes’.103 As such, the right to life has ‘absorbed’104 the right to work, health, education and privacy, among other rights more closely related to the text.105 98   KG Balakrishnan, ‘Good Governance in International Law: an Indian Perspective’ (2007) 32 South African Yearbook of International Law 25. 99   A Thiruvengadam, ‘The Global Dialogue Among Courts: Social Rights Jurisprudence of the Supreme Court of India from a Comparative Perspective’ in C Raj Kumar and K Chockalingam (eds), Human Rights, Justice, and Constitutional Empowerment (New Delhi, Oxford University Press, 2007) 277. 100   J Kothari, ‘Social Rights Litigation in India: Developments of the Last Decade’ in D BarakErez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007) 171. 101   Ibid 175. 102  See eg GB Reddy, ‘Supreme Court and Judicial Activism: an Overview of its Impact on Constitutionalism’ (2001) 3 Supreme Court Journal 18, 24–77; PB Mehta, ‘The Rise of Judicial Sovereignty’ in S Ganguly, L Diamond and MF Plattner (eds), The State of India’s Democracy (Baltimore, John Hopkins University Press, 2007). 103   Reddy, ‘Supreme Court and Judicial Activism’ above n 102 at 20. 104   OC Reddy, The Court and the Constitution of India: Summits and Shallows (New Delhi, Oxford University Press, 2008) 129. 105   Ibid 130–31.

110  The Right to Housing as a Constitutional Right This expansion can be seen as a judicial refusal to see the Indian Constitution as lacking or inferior to any international document of human rights protection. As VS Mani writes, the judiciary interprets Article 21 as ‘adequately all-­ pervasive of all human rights, both present and evolving’.106 Nevertheless, as a matter of statutory interpretation, the rights now encompassed by Article 21 remain a radical expansion of the right to life. India’s Supreme Court has been characterised as fearlessly activist,107 and it has been argued that the Court’s role in expanding the scope of Article 21 is the most significant act of judicial activism undertaken anywhere in the world.108 B.  The Right to Housing as a Right to Life and Livelihood The expansion of the right to life and personal liberty under Article 21 did not first arise in socio-economic rights cases, but out of the jurisprudence on the rights of detainees. In the breakthrough case Maneka Gandhi v. Union of India,109 the Court took control of Article 21 and began its rapid extension beyond the procedural guarantee suggested by the text. It was at this point that the Court began to make the Constitution relevant to the marginalised, fleshing out concepts of the right to life with human dignity, which underpin the developments of law in this area. Francis Coralie Mullin v Administrator, Union Territory of Delhi,110 which was handed down in 1981, did not, on its face, involve housing or shelter. The plaintiff was concerned with challenging the legality of preventive detention. However, the case provided an opportunity for the Court to develop the meaning of Article 21. As such, it represents the well-spring of a line of reasoning from which the right to housing flows. Bhagwati J, writing for the Court, noted that the right to life must ‘be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person’.111 The Court hereby signalled the philosophical basis upon which to found its expansion of the right. Accordingly, Bhagwati J continued: We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fel106   VS Mani, Human Rights in India: an Overview (New Delhi, Institute for World Congress on Human Rights, 1997) 173. 107   S Meer, ‘Litigating Fundamental Rights: Rights Litigation and Social Action Litigation in India: a Lesson for South Africa’ (1993) 9 South African Journal of Human Rights 358, 372. 108   Reddy, ‘Supreme Court and Judicial Activism’ above n 102 at 20. 109   Maneka Gandhi v Union of India AIR (1978) SC 597. 110   Francis Coralie Mullin v Administrator, Union Territory of Delhi AIR (1981) SC 746. 111   Ibid 752.



The Right to Housing as a Right to Life: The Indian Approach  111 low human beings . . . [I]t must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live.112

The Court thus invested the right to life with these material goods necessary for a life with human dignity. In 1985, Olga Tellis v Bombay Municipal Corporation113 brought the question of housing and shelter squarely before the Court in a petition on behalf of Mumbai’s slum and pavement dwellers. It was handed down on the same day as K Chandru v Tamil Nadu,114 which tackled slum clearances in the city of Madras, and which held that the State of Tamil Nadu was governed by the same constitutional points as set out in Olga Tellis.115 In Olga Tellis, the Bombay Municipal Corporation had sought to evict a large community of informal dwellers without notice or compensation, forcibly relocating them to the fringes of the city.116 The petitioners argued that eviction from their homes would deprive them of their livelihoods, and hence, the right to life under Article 21. They alleged that the government should provide alternative accommodation to them, in order to guarantee their right to life.117 The Court followed Bhagwati J’s line of reasoning in Mullin. Recalling the Directive Principles of State Policy,118 Chandrachud CJ wrote for the Court that given the Indian state’s obligation ‘to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life’. While he noted that the state could not be compelled to provide work to the citizen through affirmative action, he nevertheless maintained that ‘any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21’.119 Having determined that the right to life includes the right to livelihood, the Court stated that it would ‘assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihoods’.120 In coming to this conclusion, the Court exhibited a keen awareness of the link between life and its material foundations. As a result of this close connection between life and livelihood, the Court held that evictions could only take place ‘according to procedure established by

  Ibid 753.   Olga Tellis v Bombay Municipal Corporation AIR (1986) SC 180. 114   K Chandru v Tamil Nadu (1985) SCR Supp (2) 100. 115   Ibid 108. 116   U Ramanathan, ‘Demolition Drive’ (2005) 23 Economic and Political Weekly 2908, 2909. 117   Olga Tellis, above n 113 at 183–84. 118  Ibid 194. 119  Ibid. 120   Ibid 193. 112 113

112  The Right to Housing as a Constitutional Right law’, as mandated by Article 21.121 The case thus provided an important procedural guarantee that evictions, at least in circumstances in which the inhabitants would be deprived of their livelihoods, must take place in accordance with lawful process or stand in violation of the constitutional right to life. However, the Court denied the petitioners’ substantive claim that they had a right to make a home on the pavement itself. Thus: There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter . . . [I]t is erroneous to contend that the pavement dwellers have the right to encroach upon pavement by constructing dwellings thereon.122

In consequence, even while the Court recognised that the encroachments made by the petitioners were ‘involuntary acts in the sense that those acts are compelled by inevitable circumstances and . . . not guided by choice’,123 it held that the municipality had been justified in ordering the removal of the petitioners’ homes.124 The petitioners did not have a right to make their homes on the pavements, as ‘[n]o one has the right to make use of public property for private purpose without the requisite authorization’.125 The case thus illustrates that alongside a rights-based approach, the Court recognises other logics of governance, which depart from the concerns of civic humanism,126 and which view not only inanimate objects, but also people, as obstructions and encroachments to be removed from the pavements.127 The implications of the Indian Supreme Court’s embrace of such logics are significant, and are explored further in Chapter 8. Nevertheless, in Olga Tellis Chandrachud CJ’s characterisation of pavement dwellers, though tinged with disgust,128 is also filled with pity and at times with respect. He describes many of the informal dwellers as pursuing ‘occupations which are humble but honourable’ and stresses that they ‘do not claim the right to dwell on pavements or in slums for the purpose of pursuing any activity which is illegal, immoral or contrary to public interest’.129 The judgment also takes into consideration the structural causes of inequality and poverty underlying the living situation of the pavement dwellers, noting that:   Ibid 196.   Ibid 198.   Ibid 201. 124   Ibid 197. 125   Ibid 198. 126  N Blomley, Rights of Passage: Sidewalks and the Regulation of Public Flow (Abingdon, Routledge, 2011) 8. 127   Ibid 48–50. 128   See eg Chandrachud J’s description of the pavement dwellers as those who ‘exist in the midst of filth and squalor, which has to be seen to be believed’. Olga Tellis, above n 113 at 183. 129   Ibid 194. 121 122 123



The Right to Housing as a Right to Life: The Indian Approach  113 Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life.130

This sentiment is echoed in K Chandru v Tamil Nadu.131 Here, Chandrachud CJ, again writing for the Court, noted that the case must be decided in awareness of the fact that ‘43 per cent of the population of Madras lives in slums, apart from those who live on pavements’ and that the government itself recognised its ‘feeble, halting, incomplete and disconcerted measures of the past’ in dealing with the slum dwellers, who ‘are an essential element in city life, who are as necessary as any other section of the population for the life of the city’.132 Moreover, in the Olga Tellis case, the Chief Justice described the drive to live on the pavements as one of compulsion, writing that: [i]t is a notorious fact of contemporary life in metropolitan cities that no person in his senses would opt to live on a pavement or in a slum, if any other choice were available to him. Anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth.133

The Court took the initiative in setting out what would constitute fair procedure in this case. It ordered the authorities to delay any evictions until the end of the monsoon season. Further, it required the Municipal Corporation to provide alternative accommodation for those pavement dwellers whose homes had been recorded by census or through the grant of identity cards, which proved the individuals’ longstanding settlement in the area.134 The Court required, in part, that: Pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purpose, in which case, alternate sites of accommodation will be provided to them.135

This apparent act of sweeping judicial legislation must be understood in the context of the political power of India’s informal settlers, particularly in the city  Ibid.   K Chandru, above n 114. 132   Ibid 104. 133   Olga Tellis, above n 113 at 199. 134   Ibid 202. 135   Ibid 204. 130 131

114  The Right to Housing as a Constitutional Right of Mumbai, which remains the centre of housing rights activism in India.136 For these settlers, the legal cases on the right to housing as an element of the right to life are only one spear in a multipronged campaign for their right to housing. Informal dwellers, who represent important ‘vote banks’,137 had long been engaged in efforts with city, state and national political parties for the recognition of the right to their informal dwellings. Rather than an act of supreme judicial creativity, the legislative-style order in Olga Tellis in fact regularises and ‘legalises’ the complex negotiations over who has the right to stay in an informal settlement and who has the responsibility for the provision of services and infrastructure.138 Olga Tellis has been followed by subsequent cases implying a right to housing and shelter into the right to life. In Shantistar Builders v Narayan Khimalal Totame,139 handed down in 1990, another group of pavement dwellers approached the Court seeking enforcement of legislation that sought to prevent land accumulation by powerful interests, and at the same time provide flats to house the ‘weaker sections of society’.140 Here, in the process of revising and expanding the guidelines for the construction and provision of the subsidised flats, the Court reaffirmed that the ‘right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in’. Moreover, the Court noted that a human being requires not only ‘the bare protection of the body [but] suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual’.141 The reasoning thus encompasses not only a right to life with dignity, but appears to accept a constitutional right to a life of intellectual and material flourishing. The Court’s concern to protect the ‘weaker sections’ of society is an important theme expressed in the judicial reasoning on the right to housing. Chameli Singh v State of Uttar Pradesh, handed down in 1996, is particularly notable in this respect.142 The case was brought by land owners whose properties were subject to compulsory acquisition by the state, which desired to acquire the lands to provide housing for ‘Scheduled Castes’, for whom the Constitution mandates affirmative action.143 The landowners argued that the acquisition of their properties would violate their right to life under Article 21, because the lands were their source of livelihood.144 136   See N Anand and A Rademacher, ‘Housing in the Urban Age: Inequality and Aspiration in Mumbai’ (2011) 43 Antipode 1748. 137   J Nijman ‘Against the Odds: Slum Rehabilitation in Neoliberal Mumbai’ (2008) 25 Cities 73, 78. 138  J Hohmann, ‘Visions of Social Transformation and the Invocation of Human Rights in Mumbai: the Struggle for the Right to Housing’ (2010) 13 Yale Human Rights and Development Law Journal 135; Anand and Rademacher, ‘Housing in the Urban Age’ above n 135. 139   Shantistar Builders v Narayan Khimalal Totame (1990) 1 SCC 520. 140   Urban Land (Ceiling and Regulation) Act no 33 of 1976; India Code (1976) s 20(2)(1). 141   Shantistar Builders, above n 139 at 527. 142   Chameli Singh v State of Uttar Pradesh (1996) 2 SCC 549. 143   Ibid 552. 144  Ibid.



The Right to Housing as a Right to Life: The Indian Approach  115

The Court was not convinced by the land owners’ case. In fact, the judgment does not address the arguments raised by the land owners on the link between their property and livelihood, appearing to reject it out of hand.145 Instead, Ramaswamy J (writing for the Court) invokes the Constitutional Preamble’s principles of economic justice and material distribution for the benefit of the marginalised.146 The Court’s reasoning is built around the judicial assumption that laws created to benefit the worst off cannot be invoked by the powerful, and is clearly animated by the concept of equality and economic and social justice.147 The judgment thus represents a remarkable willingness to uphold the government’s public policy legislation, despite the impact on individual property rights, and can be contrasted with the Court’s earlier ‘pre-activist’ period.148 The Court’s struggle with the legislature over the control of the right to property is a striking example of this pre-activist phase. As originally drafted, the Fundamental Rights included a right to private property. The judiciary upheld this right in the face of state attempts at land nationalisation for the fulfilment of the Constitution’s Directive Principles of economic and social equality. The state responded by repealing property as a fundamental right, replacing it in a part of the Constitution where it cannot be enforced by the courts.149 The example of the right to property is a salient reminder of the Indian Supreme Court’s oscillations between protector of the elites versus protector of the poor, examined further in Chapter 8. The cases on the right to housing clearly fall within the latter. Taking judicial notice of the ‘appalling housing condition’ of the Scheduled Castes and Tribes, the Court in Chameli Singh then argued that it was clear that the state had undertaken the provision of housing to Dalits and Tribes as an economic policy ‘on a war footing’, in order to comply with its constitutional and international obligations.150 Thus, it concluded, the individual right of the owners must ‘yield to the larger public purpose’.151 The Court’s characterisation of housing and shelter is a second compelling strand in the reasoning in Chameli Singh. On this point, the Court stressed the fundamental importance of housing and shelter to a full human life, noting that the ‘[w]ant of decent residence . . . frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to   Ibid 552–53.   Ibid 553. 147   Ibid 553–57. See eg the discussion of India’s international human rights obligations under the UDHR Art 25(1) and ICCPR Art 11(1) at 553; and the discussion of balancing competing aims for social justice under the Constitution, ibid 556. 148   B Rajagopal, ‘Judicial Governance and the Ideology of Human Rights: Reflections from a Social Movement Perspective’ in C Raj Kumar and K Chokalingam (eds), Human Rights, Justice and Constitutional Empowerment (New Delhi, Oxford University Press, 2007) 206. 149  C Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, IL, Chicago University Press, 1998) 84. 150   Chameli Singh, above n 142 at 560. 151   Ibid 562. 145 146

116  The Right to Housing as a Constitutional Right residence, dignity of person and right to live itself’.152 It described the state’s duty to provide opportunities and facilities to the oppressed sections of Indian society as ‘fundamental’.153 Chameli Singh also presents housing as having a public purpose with an impact on community and social inclusion. As the Court stated: In a democratic society . . . one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being.154

In other words, the animation behind the Indian Constitution’s right to housing and shelter is one that recognises both the private importance of the right to housing, and the public need for the conditions of life that enable individuals to contribute and flourish as citizens. In 1997, the Court handed down a further major housing rights case, Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan.155 Like Olga Tellis, this case also addressed the rights of the pavement dwellers, this time in the state of Gujarat. The Court invoked precedent from Olga Tellis and Chameli Singh to state that the right to life clearly included a right to life with dignity156 and to lay out the constitutional obligations of the state in securing this dignity.157 The Nawab Khan judgment is an attempt to apply the guidelines for the eviction of pavement dwellers that were set out as constitutional protections in Olga Tellis. The case illustrates that there are competing interests and principles at play in the determination of housing rights, which the Court struggles to balance in the judgment. On the one hand, Ramaswamy J, again writing for the Court, invoked the relevance of Article 25(1) of the Universal Declaration of Human rights, and Article 11(1) of the International Covenant on Economic, Social and Cultural Rights to the question before the Court.158 He made reference to the duty of the state to ‘provide’ a right to shelter for the poor and indigent.159 Moreover, he took note of the fact that the reasons why municipalities allow pavement dwellings to be built are obvious in light of the reality of life in India’s cities,160 thus illustrating sympathy with the plight of those who dwell on the roadsides but also with the authorities who seek to control such unauthorised homes. He   Ibid 556.  Ibid. 154  Ibid. 155   Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan AIR (1997) SC 152. 156   Ibid 163. 157   Ibid 158. 158   Ibid 157–58. 159   Ibid 159. 160   Ibid 157. 152 153



The Right to Housing as a Right to Life: The Indian Approach  117

suggested that it could be unconstitutional to attempt to prevent Indians from migrating and settling in areas where greater livelihood and life chances are available,161 and noted that the poor agricultural labourers, middle and upper classes alike, flock to the cities where there are greater opportunities.162 He characterised it as ‘unfortunate’ that half a century after India’s independence, little infrastructure exists in rural India and little comprehensive planning has been undertaken to remedy the deficiency.163 On the other hand, the Court in Nawab Khan was concerned with elucidating how the protections in Olga Tellis could be narrowed, to better control the presence of informal settlers in India’s cities. For example, Ramaswamy J stressed that the sooner the ‘encroachments’ of the pavement dwellers’ houses were removed, the better. He noted that quick action on the part of the government prevents the dwellers from claiming the ‘semblance of right to obstruct removal of the encroachment’.164 The judgment recommends that the authorities ‘ensure constant vigil on encroachment of the public places’. It further suggests that, if encroachments can be dealt with as soon as they arise, ‘the need to follow the procedure of principle of natural justice could be obviated’. In this case, Ramaswamy J proposed only a short notice period of ‘say two weeks or 10 days’ and, given the implementation of such a fair notice period, ‘the right to hearing before taking action for ejectment is not necessary in the factsituation’.165 The judicial statement that a hearing may not be necessary before eviction is a significant reduction in the legal protections available to informal dwellers subject to eviction since Olga Tellis. Ramaswamy J also determined that pavement dwellers do not have transferrable property rights in their dwellings.166 As such, any transfer by rent or sale of the hut was void ab initio,167 and any pavement dweller who had acquired his home from another informal pavement dweller was ineligible for rehousing.168 Moreover, the Court stressed the state’s duty to remove the pavement dwellers so as to make the pavements accessible for pedestrians.169 Ramaswamy J thus recalled Olga Tellis as authority for the proposition that pavement dwellers have no right to make private use of public space.170 He also reinforced the principle that pedestrians have a right to the pavement, in order that they ‘are able to go about their daily affairs with a reasonable measure of safety and security,’ while pavement dwellers do not.171 This illustrates that, as Usha Ramanathan points   Ibid 163.   Ibid 162–63.   Ibid 162. 164   Ibid 157. 165   Ibid 162. 166   Ibid 164–65. 167   Ibid 165. 168   Ibid 166. 169   Ibid 157. See also Blomley, Rights of Passage above n 126. 170   Nawab Khan, above n 155 at 157. 171  Ibid. 161 162 163

118  The Right to Housing as a Constitutional Right out, on the issue of the contest between pedestrians and pavement dwellers, ‘the latter definitively lost’.172 Thus, while Olga Tellis dealt with broad principles, Ahmedabad v Nawab Khan Gulab Khan qualified the protections, moving away from the focus on the rights of informal dwellers towards the duties of the government to keep the pavements clear and provide for orderly management of slum clearance. C.  Conclusions on the Indian Experience Indian Supreme Court cases on the right to housing have been welcomed across the world as revealing a perceptive, profound and contextualised view of human life and the interconnected nature of all human rights – from equality to livelihood and from social inclusion to education. The judgments reveal a coherent interpretation of the right to life and its relationship with adequate housing and shelter. They spell out a rich interpretation of the right to life that includes attention to issues of material needs, structural equality, dignity, opportunity, and even intellectual flourishing. And the cases have provided a discourse through which to understand the interconnections among the various facets of a decent human life. They also profoundly undermine the argument that economic, social and cultural rights such as the right to housing are somehow philosophically or qualitatively separate from civil and political rights such as the right to life, given the holistic and indivisible view of all human rights reflected in the Indian Supreme Court’s approach. The impact of this discourse extends beyond the borders of the state. As Yash Ghai argues, the Indian Supreme Court has ‘opened a public, and worldwide, dialogue on rights that would scarcely have been possible without its own discourse on rights and the social and economic condition of India’.173 The InterAmerican Court and the European Social Committee are now taking part in this conversation, along with international NGOs. For example, Amnesty International, which until recently maintained a steadfast focus on civil and political rights, has launched its ‘Global Campaign for Human Dignity’, in which the organisation recognises that: Poverty is not just a lack of income; it is the denial of access to the resources, capability, security and power that people need in order to realize their human right to live with dignity. Universal human dignity can only become a reality through respect for the full range of human rights – from adequate housing and physical integrity to access to information.174

  Ramanathan ‘Demolition Drive’ above n 116 at 2910.   See Y Ghai, ‘Foreword’ in C Raj Kumar and K Chockalingam (eds), Human Rights, Justice, and Constitutional Empowerment (New Delhi, Oxford University Press, 2007) x–xi. 174   Amnesty International, Global Campaign for Human Dignity (AI Index: ACT 35/003/2007) (Amnesty International, 2007) 1. 172 173



The Right to Housing as a Right to Life: The Indian Approach  119

These examples illustrate that although the Indian jurisprudence on the right to life represents a unique judicial response to the deprivation of adequate housing, the reasoning of the Court has contributed to the international development of human rights, both theoretically and practically. The cases deriving from Olga Tellis have not been formally overruled, but the judicial protections accorded in the cases have been gradually narrowed. The cases are relatively few in number, if no doubt high profile. None of the cases on the right to housing as a right to life have contained a substantive definition of the right itself. As Madhav Khosla puts it: ‘the justiciable nature of social rights is passionately expressed but there is little effort to expand on their nature or to elaborate upon the scope of review that will be conducted’.175 In addition, the remedy in each case has been ad hoc and situation-specific.176 And while the procedural guarantees have been immensely powerful and import­ant in protecting the right to housing for India’s informal dwellers, the protections have only been gained through continuous legal and political mobilisation. Overall, the Indian jurisprudence crafting a right to shelter and housing from the right to life represents a powerful judicial statement on a right to life with dignity. It has also resulted in important procedural guarantees, spelled out in a legislative scheme of cut-off dates and rehabilitation and compensation which have come to play a large part in the daily political struggles of India’s informal settlers. Nevertheless, as the political struggles around the legislative scheme in Maharashtra illustrate, along with the more conflicted ‘balancing’ approach undertaken by Ramaswamy J in Nawab Khan, the right to housing in India is one that is contested and subject to changing political, economic and social pressures in the context of India’s rapid urbanisation and the drive for modernisation. The impact of these pressures is further elucidated in Chapter 8.

175   M Khosla, ‘Making Social Rights Conditional: Lessons from India’ (2010) 8 International Journal of Constitutional Law 739, 743. 176   Kothari, ‘Social Rights Litigation in India’ above n 100 at 183.

5 The De-radicalised Right to Housing: An Assessment of Interpretive Failings I. INTRODUCTION

A

S THE ANALYSIS undertaken above reveals, the right to housing has achieved a significant place in the international legal system of human rights protection. It is now codified in a wide range of human rights Covenants, expressed in declarations and protected by constitutions. A body of interpretive statements puts flesh on the bare bones of the provisions in these documents, and a number of courts and commissions, from the international to the domestic level, are creating a portfolio of cases considering the right’s interpretation, application and realisation. The blossoming of norms and practice on the right to housing across the international human rights system undermines the general assumption that the right to housing has yet to take hold as an international human right and it is now difficult to maintain previous scepticism regarding the ‘existence’ of the right. However, despite an ever-increasing body of law on the right to housing, the right remains, on the whole, thin and elusive. It has not led to radical social, political or economic change, despite the hopes of some and the fears of others. Overall, three main interpretational failings characterise the legal interpretation of the right across regimes and jurisdictions. The first weakness is the failure of interpretive bodies and courts to give sufficient normative content to the right to housing, such that it is only barely possible to say what the right is: there is no concrete definition of the right that can be abstracted from a specific case, nor is it easy to spell out a general state obligation for the right. Secondly, and related to the first problem, is the overly procedural – even ‘programmatic’ – nature of the right. Finally, and most seriously, is the overall failure of those interpreting and applying the right to attach the right to the actual social conditions – homelessness, destitution, displacement and social and physical marginalisation – which motivated its inclusion in the corpus of human rights in the first place. In each regime or jurisdiction, the interpretation of the right to housing is characterised by one or more of these three problems. In this chapter, I consider these weaknesses, and their impact on the potential realisation of the right to housing. The chapter not only provides an assessment



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of the right to housing as currently expressed in international, regional and domestic human rights law, but also sets the scene for the following section of the book. In the next Part, I ask why we might choose to protect housing as a human right, what its future in the international human rights regime might be, and what potential it has to remedy actual conditions of human harm, given the limitations it currently demonstrates.

II.  GAPS AND WEAKNESSES IN THE LEGAL INTERPRETATION OF THE RIGHT TO HOUSING

The legal definition of a human right, crafted by courts and by those bodies responsible for monitoring human rights treaties and conventions can, in effect, comprehensively exclude the suffering of entire groups of people from recognition. Any legal interpretation of a human right that fails to adequately embed the right within the social context of real deprivation, marginalisation and inadequacy of living conditions that characterise the violation of the right must fall short of the radical and emancipatory potential of human rights. Yet it is this precise problem that the current legal interpretation of the right to housing displays. Across jurisdictions, the interpretation of the right fails to push towards the actual relief of inadequate living conditions, the deprivations of homelessness and the social exclusion experienced by millions of people. The current interpretations of the right to housing reveal three serious failures. The first is a problem of definition. Despite the wealth of interpretive statements and the growing body of jurisprudence on the right, it is difficult to locate a definition of the right or its corresponding obligations, such that it is almost impossible to say what the right to housing is. Secondly, the legal interpretation of the right is overly procedural, and in some instances, unduly ‘programmatic’. Moreover, in the focus on procedure, the importance of the substantive realisation of the right is often obscured or ignored. Finally, the legal interpretation of the right is inadequately connected to an awareness of the actual social conditions of its violation. The jurisprudence and interpretive statements lack sufficient connection with the circumstances of suffering that constitute the actual violation of the right, such that the legal interpretation of the right to housing remains at a level of abstraction from actual questions of homelessness, forced displacement and inadequate living conditions. Taken alone, each of these weaknesses may appear minor. However, the cumulative effect of the interpretational gaps is a legal right to housing that fails to reach toward the actual realisation of human rights for those who experience their violation. These three issues thus represent serious problems for the adequate and coherent development of the right to housing in law.

122  The De-radicalised Right to Housing A.  The Issue of Definition The first problem that plagues the right to housing is that the right itself remains vague and ill-defined. Despite the existence of a legally protected right to housing in many jurisdictions, it is difficult to locate a clear definition of the right, and thus to say with any certainty what the right is. Moreover, rather than opening up a meaningful space of political contestation in which those invoking the right can seek to take ownership of it, this vagueness appears to expose a normative emptiness at the core of the right. It is not that there is no philosophical or theoretical concept to which to secure the right: Part II illustrates that we can seek, and find, powerful justifications for protecting the right to housing as a human right. However, in failing to adequately bond the legal right to the fundamental concerns underlying human rights, the right appears to drift without conceptual anchor. This lack of a core, pervasive, though more pronounced in some jurisdictions than in others, affects not only the prospects of defining the right but also the possibility of claiming it. The failure to define the core of the right to housing begins at the international level, under the International Covenant on Economic, Social and Cultural Rights1 (ICESCR). The text of ICESCR Article 11(1), which contains the right to housing as an element of the right to an adequate standard of living, is sketched in the vaguest terms. As such, the Committee on Economic, Social and Cultural Rights (CESCR) has worked to expand on the meaning of the right in its General Comments. Here, it sets out an interpretation of the right that is broad and multifaceted. The right should be seen as a ‘right to live somewhere in security, peace and dignity’,2 and as including seven essential elements, from security of tenure to cultural adequacy. Within each element are a set of highly specific subelements, which set out procedures, policies and regulations that states should implement in order to fulfil their obligations under the Covenant. Despite the level of detail included in the General Comments, no clear definition of the right can be located within them. Even within each element it is difficult to determine whether any one policy or initiative is considered by the Committee as an obligation or constitutes only a suggested course of state action. Moreover, it remains unclear what state actions or inactions constitute a violation of the right.3 Rather, the overall approach of the Committee has been to set out a programme of action for states’ parties to implement. 1   International Covenant on Economic, Social and Cultural Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 3 January 1976), see further Chapter 1, III. 2   United Nations Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1)): Committee on Economic, Social and Cultural Rights General Comment 4 (1991) E/1992/23 para 7. 3   See further Chapter 1, III.



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The strength of such a ‘programmatic’ approach4 lies in its flexibility and adaptability in different cultural, economic and social conditions across states. These are indeed factors that the Committee is required to take account of and respond to in its work. In addition, institutional and jurisdictional factors push the CESCR towards such a programmatic approach. First, given that the obligation to realise the rights set out in the ICESCR is largely progressive rather than immediate, and tied to the economic abilities and regulatory capacities of the state in question, the CESCR is placed in a position of fleshing out a right for which states’ obligations exist on a sliding scale. Progressive realisation results in some states being subject to a high level of immediate obligation and others to a much lower level of provision or protection. However, while progressive realisation might make a concrete definition of the right appear difficult, in theory it should only affect the relative level of obligation to respect, protect and ensure, rather than the normative core of principles which form the substance of the right. Secondly, the CESCR is itself a monitoring body, constituted to assess the sufficiency of states’ policies with respect to the long-term realisation of the rights in the ICESCR. To date, its specific role has been to aid states in implementing governmental machinery for the realisation of the right, rather than to locate violations or enforce the substantive enjoyment of the right, although the coming into force of the Optional Protocol will provide a new mandate.5 This role turns the CESCR’s attention towards the means and away from the ends sought in the protection of the right. Nevertheless, it is problematic that institutional factors regarding the level of obligation have consumed the attention of the CESCR to the extent that there is insufficient definitional specificity of the right. Moreover, despite the widespread attention given to the General Comments by academics, courts and other monitoring bodies, this lack of a core definition of the right appears to have gone largely unremarked. Because the CESCR’s interpretation of the right to housing is highly influential and has had a practical and philosophical impact on the interpretation of the right to housing in regional regimes and national states, the lack of a definitional, normative core affects the right not only under the ICESCR but also in other human rights documents. Monitoring bodies and courts responsible for the right to housing in regional and subject specific covenants often begin their analysis of the right to housing by invoking or stressing the similarity of their approach to that of the CESCR. The lack of a concrete definition of the right in the work of the CESCR thus flows through discussion of the right from the international to the regional and national contexts. For example, the European Social Committee, responsible for overseeing the Revised European Social Charter (RESC), explicitly follows the interpretation of the right as codified in the ICESCR and interpreted by the   See further II.B.ii below.   See further Chapter 1, III.B.

4 5

124  The De-radicalised Right to Housing CESCR, stating that it seeks congruence of housing rights standards between the RESC and the ICESCR.6 The European Social Committee which, like the CESCR, is also a monitoring body, takes a similarly programmatic approach to the right to housing. It identifies the need for a wealth of state policies on housing provision and equal access to housing goods, and assesses the state’s compliance with these policies and directives. However, the European Social Committee’s definition of the right to housing is, in fact, the most fully defined of any jurisdiction. In FEANTSA v France,7 it crafted a definition of adequate housing as including a dwelling which is safe from a sanitary and health point of view, which is structurally secure and not overcrowded, and which is supported by secure tenure.8 In addition, it spelled out that states must show that their housing policies evidence a reasonable timeframe for action; they must illustrate measurable progress towards realisation; and they must show that they have dedicated funds to these measures which are consistent with the state’s maximum available resources.9 Nevertheless, the European Social Committee notes that the RESC cannot be taken to impose an obligation of results on the states subject to it.10 Moreover, although the European Social Committee is employing this definition in current cases, the fact that the Committee is not bound by even its own past interpretation of the right11 suggests that an apparent stable body of norms in this jurisdiction may be subject to significant change with the composition of the Committee itself, or the potential political pressures brought to bear on it. Oddly, perhaps, the least defined right to housing actually emerges from the jurisdiction with the most famously codified right. In the case of South Africa, the Constitutional Court has been called upon to interpret a constitutionally protected, fully justiciable right to access to adequate housing. However, despite several cases to which consideration of this right has been central, including the seminal Grootboom case,12 the Court has failed to provide a workable definition of the right to housing itself, although glimmers of normative content are slowly beginning to emerge in the cases, such as the suggestion that rehousing is required in the case of forced evictions.13 By and large, however, the Court’s focus rests on the requirement that the state act reasonably in the creation and 6   Secretariat of the Social and Economic Committee of the Council of Europe, Digest of the Case Law of the ESCR (Council of Europe, 2008) 348. See further Chapter 3, II.A. 7   European Federations of National Organisations Working with the Homeless (FEANTSA) v France (ESCR Case no 39/2006), Judgment on merits, 4 February 2008. 8   Ibid para 76. 9   Ibid para 56. 10   International Movement ADT Fourth World v France (ESCR Case no 33/2006), Decision on merits, 5 December 2007, para 59. 11   Digest of the Case Law of the ESCR, above n 6 at 8. 12   Government of the Republic of South Africa and others v Grootboom and others (CCT11/00) [2000] ZACC 1 (21 September 2000). See further Ch 4, II. 13   Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and others (CCT 22/08) [2009] ZACC 16 (10 June 2009) per Moseneke DJC at paras 169 and 214. See further Ch 4, II.C.



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implementation of housing policy, and reasonableness itself turns on the sufficiency of steps taken, rather than on the result achieved. Less surprising, on the other hand, is the lack of a definition of the right to housing under the International Covenant on the Elimination of All Forms of Racial Discrimination14 (CERD), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment15 (CAT) or International Covenant on Civil and Political Rights16 (ICCPR). Cases which include attention to housing under these Conventions have the ability to illustrate the myriad human rights concerns that are caught up with the ability to enjoy adequate and secure housing, but they are not concerned with a right to housing per se. Rather, housing and the home emerge as the lens through which the violation of the Convention rights is examined. For example, with complaints brought under the CERD, the CERD Committee’s reasoning begins first with the question of discrimination and only then moves to consider whether that discrimination has resulted in deprivation of housing. Consequently, the focus of inquiry is on equality in the provision of housing, rather than on the development of principles of law specific to housing itself.17 Given the difficulty of locating the core normative content of the right in its interpretation, it can be unclear what a finding of the violation of the right to housing actually adds in a case of discrimination, although the tantalising possibility of being provided with housing as a remedy, however infrequently realised, explains the appeal of these provisions to those whose rights are violated. Thus, to date, complaints under these Conventions have not contributed a great deal to an understanding of the right to housing itself, although the focus on equality in the provision of housing and the effect of deprivation of housing on individuals and communities does turn attention towards those who are most likely to be denied the actual enjoyment of the material goods and opportunities associated with safe and adequate housing, and to the ways in which these violations occur. Under the European Convention on Human Rights18 (ECHR), an increasing number of petitioners and activists are seeking to invoke a right to housing, implied from Article 2, Article 8, Article 3, and Protocol 1 Article 1.19 While housing rights-related questions are being adjudicated in this forum, it cannot be said that a right to housing has been implied into the Convention at this 14   International Covenant on the Elimination of All Forms of Racial Discrimination, UNGA Res 2106A (XX) (adopted 21 December 1965, entered into force 4 January 1969). See further Chapter 2, IV. 15  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 39/49 (adopted 10 December 1984, entered into force 26 June 1987). See further Chapter 2, V. 16   International Covenant on Civil and Political Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 23 March 1976). See further Chapter 1, IV. 17   See further Chapter 2, IV. 18   European Convention for the Protection of Human Rights and Fundamental Freedoms, CETS no 005 (opened for signature 3 November 1950, entered into force 3 September 1953). 19   See further Chapter 3, II.B.

126  The De-radicalised Right to Housing stage. Despite the fact that the European Court of Human Rights (ECtHR) has highlighted the importance of housing in its decisions, and has at times protected elements of a right to housing, any implication of a substantive right to housing from the human rights protections in the ECHR remains a future prospect. The legal development of a right to housing will require greater explication by the Court, although it is clear that the ECHR’s provisions recognise the instrumental importance of housing to the enjoyment of a number of other rights. Moreover, while the Convention rights are capable of interpretation and definition in ways that shine a light on the interconnections among all rights, to date the cases handed down from the ECtHR show little reflection on how a right to housing, especially one understood as including substantive or positive obligations, might relate to the expressly codified rights to property, life, or to the requirement for states to respect private and family life, home and correspondence. In jurisdictions where the right to housing is implied, rather than textually explicit, it might be expected that the court expounding its existence would take care to provide a definition unequivocally grounded in the foundations and philosophy of human rights. Such strong philosophical reflection is, in fact, found in the Indian case law on the right to housing and also informs the work of the Inter-American Court of Human Rights (IACtHR). In India, the Supreme Court’s implied right to housing and shelter under the right to life is based in human dignity, equality, justice and the ability to participate in society. The Court in the Francis Coralie Mullin case stated that ‘[e]very act which offends against or impairs human dignity would constitute deprivation protanto of this right to live’,20 and subsequent cases have, for the most part, based the right to housing on the idea that housing is inherent to a life lived in full human dignity and social inclusion. While, in line with Francis Coralie Mullin, any act that offends against human dignity could be a violation of the right to housing, and although the Supreme Court stresses that the right to housing comprises more than mere shelter, the definition of the right is vaguer than might be expected. The right is linked to dignity and dignity is linked to participation, autonomy, economic justice and equality, but the jurisprudence cannot be said to contain any one binding definition of the right. Instead, because the right to housing has been implied through a procedural guarantee in the constitutional text, the Court’s attention has remained attuned to procedural protections, rather than substantive rights. A similar approach by the IACtHR illustrates the same rhetorical power. Yet attention to the dignity, autonomy and equality of all persons through housing does not necessarily translate into a defined right. In fact, as Iris Figueroa has argued, the provision of housing under the Inter-American Human Rights doc20   Francis Coralie Mullin v Administrator, Union Territory of Delhi AIR (1981) SC 746, 753. See further Ch 4, III.



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uments could be understood as a case of remedy without right,21 highlighting the lack of principled normative rule behind the provision of housing in the Inter-American system. For the right to housing implied under the African Charter on Human and Peoples’ Rights,22 more definitional specificity is still needed. Currently, the cases decided in this forum are limited to factual situations in which the state has destroyed housing and evicted the inhabitants, has acquiesced in the destruction of housing, or has failed to protect against such destruction by third parties.23 While the Ogoni case hinted at a substantive right to shelter,24 the more recent Endorois25 and COHRE v Sudan26 cases have not followed up on this possibility. The right to housing in this jurisdiction thus remains ripe for further development. The fact that courts and monitoring bodies responsible for interpreting and defining the right to housing have failed to construct – or, it could be argued, have sought to avoid – a definition of the right can lead to a charge that the right is intrinsically indeterminate: that no concrete, binding definition of the right can be found or meaningfully applied in legal reasoning. While some scholars have argued that legal reasoning is inherently indeterminate, it does not appear that the contours of the right to housing are, in themselves, more or less difficult to define than those of other human rights such as the right to life, or the right to freedom of expression. These rights too remain highly contested, despite a history of much deeper reflection in human rights thought and practice. Nevertheless, the fact that in almost all jurisdictions considered, the body responsible for interpreting the right has left it ill-defined and vague (both with respect to its normative core, and as a corollary, as to what constitutes a violation) warrants particular attention. Vagueness or lack of definition in a human right can open up a positive space in which activists and advocates can seek to reimagine the right and bring historically neglected harms, individuals, or peoples within its ambit. Efforts to imply a right to housing into the provisions of the ECHR represent such a process, as does the reconceptualisation of the Indian right to life as incorporating the right to housing and shelter. Such openness in fact presents one reason for the powerful appeal of human rights, as I argue in the final part of this book. However, as Katharine Young has noted, while contestation and dialogue over 21   IT Figueroa, Remedies Without Rights?: Reparations and ESC Rights in the Inter-American System (2010), available at http://works.bepress.com/iris_figueroa/1. 22   African Charter on Human and Peoples’ Rights, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (adopted 17 June 1981, entered into force 21 October 1986). 23   See further Chapter 3, III. 24   Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v Nigeria, African Commission on Human and Peoples’ Rights, Comm no 155/96 (2002). 25   Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission of Human Rights, Comm no 276/03 (2010). 26   Centre for Housing Rights and Evictions (COHRE) v Sudan, African Commission of Human Rights, Comm no 296/05 (2010).

128  The De-radicalised Right to Housing the normative motivations for a right are important and valuable, the legal standard should be open in a quite different way, in that it should be available for practical contestation by parties seeking to claim it.27 But in those jurisdictions examined here which include an explicit right to housing, such a practical, contestable space has not emerged from the vagueness or lack of definition of the right. Instead, this vagueness of definition is closely linked with the vagueness of obligations over the right (and is further compounded by the problems of undue proceduralisation and lack of attention to the actual material circumstances of the violation of the right, discussed below). The result appears to be that instead of creating a potent space to resist social deprivation, the vague definition instead creates only uncertainty and inaccessibility. Without a clear definition of the right, it is hard to determine when a violation has occurred in any given circumstance and, as a consequence, when the right can be claimed before a court. The failure of courts and monitoring bodies to provide a definition of the right thus impacts directly on those hoping to lay claim to the right in order to struggle against homelessness, inadequate housing, forced resettlement, or other material deprivation and marginalisation. If the right cannot be laid claim to, it is a hollow promise and any attempt to invoke it as an instrument in a project of advocacy is fraught with uncertainty. Such vagueness in the interpretation of the right to housing illustrates not only that it can incidentally disempower those who seek to invoke the right, but that such indeterminacy may, either consciously or unconsciously, entrench the rights of the powerful. Those who are familiar with the law (or more broadly with the formal political sphere) are able to bring their resources of specialist knowledge, global capital or personal wealth to bear on the legal or political system, and any right not firmly grounded in principles that explicitly seek to protect the vulnerable and disenfranchised is liable to be moved towards an interpretation that favours the interests of the already advantaged. Likewise, the right may be pushed towards the protection of other, more historically familiar, human rights interests. For example, the European Court of Human Rights has been criticised for interpreting housing protections under Article 8 of the ECHR in ways that appear to defer to existing property rights at the expense of the interests of the propertyless.28 An attempt to reduce the right to housing to the right to property is problematic given the tension between property rights as traditionally interpreted, and rights to material living conditions such as the right to housing. Nevertheless, the failure to consider the relationship of the right to housing to other human rights such as rights to property, to land, to family life and to culture, for example, is equally problematic to its definition and to the state obligations it infers. It is clear from the analysis of the cases discussed above that housing is both instrumental in and inherent to the realisation of a multitude of other human rights, needs and goods. Yet how the legal right itself 27   K Young, ‘The Minimum Core of Economic, Social and Cultural Rights: A Concept in Search of Content’ (2008) 33 Yale International Law Journal 113, 139. 28   See further Chapter 3, II.B.iii.



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relates to these other rights is not explored in any meaningful depth, particularly where the right is explicitly provided in human rights Conventions and constitutions. For instance, an examination of the role of the house and home in the constitution of society and family is capable of making a deep contribution to a debate on the relationship between the right to housing and other human rights. The fact that this debate, which has long raged in the social sciences more generally, has had almost no impact on the legal interpretation of the right is a factor motivating my investigations into the conceptual foundations of the right in the following three chapters. In sum, although the right to housing might open up a new space to question the assumptions of the economic and social status quo in a way that furthers the emancipatory possibilities inherent in human rights struggles, the current vague and thin definition of the right appears to defuse this power. Despite the potential for contestation inherent in a right to housing that is not locked into a narrow or conservative definition, the current legal interpretation of the right to housing appears to slip away from any radical or emancipatory potential. A meaningful definition seems, rather, to remain beyond the reach of those who would invoke and claim the right. B.  The Problem of Proceduralisation The second main issue revealed by a close analysis of the legal interpretation of the right to housing is its disproportionate proceduralisation. Rather than appearing as a substantive right, in most jurisdictions the right to housing has been spelled out as a set of elaborate procedural steps. While procedural guarantees can be immensely important in the realisation of human rights (and substantive enjoyment is not divorced from procedure), an undue focus on procedure at the expense of outcome can lead to a right for which realisation is tied to the existence of the procedure itself, rather than the actual enjoyment of adequate housing. This is particularly the case where, as with the right to housing, the legal interpretation of the right goes beyond the procedural to the ‘programmatic’, leading to a right that can only be realised through government action. Here, I first examine the procedural bent of the legal interpretation of the right, before turning to its programmatic interpretation and the implications for the realisation of the right these tendencies reveal. (i)  Procedural Interpretation of the Right to Housing A strong focus on procedure in the right to housing is evident in most of the jurisdictions studied here; in fact, only in the IACtHR’s jurisprudence on the right to a dignified life for specific vulnerable communities have states been held to an obligation to provide the substantive, material right to housing. Elsewhere, proceduralism reigns.

130  The De-radicalised Right to Housing This is strikingly revealed in South Africa. Here, the right is contained in section 26 of the South African Constitution and the Court has taken what is almost entirely a procedural approach to its interpretation; that is, section 26(2) of the Constitution on the state’s duty to take reasonable legislative and other measures with regard to housing has eclipsed section 26(1)’s guarantee of access to adequate housing.29 In the context of the South African Constitution’s transformative aims and the hope of many South Africans that the constitutional protection of economic, social and cultural rights would provide social and economic renewal in a post-Apartheid society, the lack of attention to substantive enjoyment of the right is disappointing. This is illustrated by the unfulfilled promise represented by Grootboom which, despite the finding of a constitutional violation of the right to housing, resulted in no actual change in the living circumstances of the plaintiffs.30 Given that the Court has failed to spell out a definition of the right to housing under section 26(1), housing rights protection under the South African Constitution appears, at this time, to be confined to the oversight of reasonableness by the Constitutional Court. Reasonableness in the South African context is itself expressed by the Court as a procedural concept, based on the satisfactoriness of the course of action through which the state has engaged with the human rights claimant. The problems inherent in this approach are illustrated by the Court’s supervised order in the Joe Slovo case,31 where the parties’ failure to comply with the steps mandated in the order led to its being rescinded, with the perverse effect of removing Court oversight from the realisation of the right to housing for the Joe Slovo residents.32 Meanwhile, the work of the ICESCR’s Committee on Economic, Social and Cultural Rights and the European Social Committee is focused on the means for the right’s implementation. Specifically it is on those legislative steps that states should – or sometimes must – take rather than the substantive ends to be gained. Although the European Social Committee imposes no obligation of result,33 the CESCR has interpreted the right to housing under the ICESCR as including a minimum core obligation. In theory, unless a minimum substantive provision of each of the rights is realised, the state is in violation of its obligations. Yet the focus of the CESCR’s Conclusions on State Parties’ Periodic Reports remains overwhelmingly on states’ movement or failure thereof. At the same time, the minimum core remains ill-defined and in fact seldom mentioned. In India the housing rights jurisprudence is based on a wide and philosophically nuanced understanding of the relationship between material goods and   See further Chapter 4, II.   Grootboom, above n 12, see further Chapter 4, II.A and D. 31   Joe Slovo, above n 13. 32   Residents of Joe Slovo Community, Western Cape v Thebelisha Homes and others (CCT 22/08) [2011] ZACC 8 (31 March 2011). See further Ch 4, II.C. 33   ADT v France, above n 10 at para 59. See further Ch 3, II.A. 29 30



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social and political participation and belonging. Yet, as suggested by the text of Article 21, the right to housing in India is a right to procedural protection when housing interests are at play. For example, the Olga Tellis case did not hold that there was a substantive right to make a home on the pavement, only that fair processes must be followed before pavement dwellers could be evicted.34 Likewise, the Nawab Khan case35 provided procedural guidelines to be fulfilled by the state in relocation of slum dwellers, rejecting a positive right of informal settlers to claim the land on which they have built. The Indian jurisprudence, however, illustrates that procedural guarantees can be immensely important in the realisation of human rights. The judicial protection of politically mobilised gains, including notice and, oftentimes, rehousing, have provided significant de facto protection of housing for those whose homes are built on the pavements or in other informal settlements. Moreover, procedural considerations in human rights should not merely be seen as the failure to realise substantive aims. The availability of fair legal process can make space for the realisation of the right in a way that facilitates freedom, autonomy and participation, unlike a prescriptive interpretation of a substantive right. In fact, the most persuasive justifications for the right to housing, which are fundamentally concerned with bringing individuals into meaningful membership and inclusion in the state, are in fact recognition of the importance of the process of partaking in the state that makes citizenship meaningful, as is recognised in the Indian Supreme Court’s Chameli Singh judgment.36 Nevertheless, a procedural legal right to housing based on state obligations to create legislation or ‘take steps’ must be seen in light of the serious potential problems with a procedural approach, especially one that, as with the dominant interpretation of the right to housing, tends to exist not only at the expense of substantive guarantees but also absent any definitional core to the right. (ii)  Programmatic Approach to the Right to Housing In many jurisdictions, the right to housing moves beyond the procedural to become ‘programmatic’ in nature; that is, the right becomes intrinsically tied to a programme of government action for its realisation and enjoyment. Procedural guarantees are often part of this programme of action, in that states are required to ‘take steps’ – often legislative steps – to fulfil the right, but what is specific to the programmatic approach is that it depends inherently on state action for fulfilment. Such an approach is visible in the work of the CESCR. Although General Comment 4 mentions the right to housing’s connection with the realisation of security, dignity and peace, rather than exploring these concepts and their   Olga Tellis v Bombay Municipal Corporation AIR (1986) SC 180. See further Chapter 4, III.   Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan AIR (1997) SC 152.   Chameli Singh and others v State of Uttar Pradesh and others (1996) 2 SCC 549.

34 35 36

132  The De-radicalised Right to Housing relationship with the physical infrastructure that constitutes adequate housing, the Committee immediately shifts the focus of enquiry to the notion of adequate steps. Thus, despite the fact that the Committee makes adequacy a central concern in the right to housing, this adequacy is rapidly translated from the adequacy of housing to the adequacy of state policies. For each of the seven elements of the right the Committee spells out a detailed list of suggested legislative, financial, judicial and executive initiatives. Taken together, the implementation of these measures is expected to lead to the realisation of adequate housing. This is a programmatic approach to the right to housing. It focuses on the sufficiency of efforts undertaken, rather than results achieved, and runs the risk of leaving the right to housing as a guarantee only that states will ‘take steps’, with the sole oversight being the CESCR’s approval of the satisfactoriness of the policy.37 Likewise, in the South African context, the Court requires that the government put in place reasonable legislative policies and consult and engage with those to be affected. The Constitutional Court’s focus is on the processes of government and its jurisprudence involves it directly in overseeing this programme of state action, but its focus remains on the taking of action itself, rather than on the results of that action. The creation of a mass of housing laws, regulations, subsidies and initiatives such as those recommended by the CESCR and by the European Social Committee, for example, is fully congruent with the modern welfare state as we know it. However, the programmatic response to the realisation of rights through the state also has a theoretical foundation in socialist conceptions of human rights. For instance, many socialist inspired or influenced constitutions were (and are) based on the understanding that rights are both rights of the individual and also basic principles of government that dictate state action.38 Rights as necessitating state facilitation thus have a long history in theories of human rights. The realisation of rights through the state can also be linked to the concept of a court’s role as an institution of governance, as is widely recognised to be the case both in South Africa39 and in India.40 In these jurisdictions, the Court takes a role in the fulfilment of human rights that extends beyond upholding individual rights claims. It is, in addition, an institution that takes responsibility for coherently implementing the long-term aims of the legislative and executive branches of the government through its judgments. In the interpretations of the right to housing stemming from the CESCR and from the South African Constitutional Court in particular, the state has become   See further Ch 1, III.   I Kovács, ‘Fundamental Questions Concerning the Theory and History of Citizens’ Rights’ in Imre Szabó et al (eds), Socialist Concept of Human Rights (Imre Móra (trans), Budapest, Akadémiai Kiadó, 1966) 21. 39   P O’Connell, Vindicating Socio-economic Rights: International Standards and Comparative Experiences (Oxford, Routledge, 2012) 54–55. 40   KG Balakrishnan, ‘Good Governance in International Law: an Indian Perspective’ (2007) 32 South African Yearbook of International Law 25. 37 38



The Legal Interpretation of the Right to Housing  133

not only the facilitator of the conditions in which the right may be realised, but also the necessary agent through which enjoyment of the right is mediated. In this approach, the right to housing must be realised through or by means of the state. Acceptance of this approach can lead, as it has in Sandra Fredman’s work, to a suggestion that rights such as the right to housing should be seen as rights to an ‘act’ rather than as rights to a good.41 Given that the act is presumably an act of the government, the right becomes tied to government provision – it becomes wholly ‘positive’ in nature and by definition cannot be realised or enjoyed fully if the government does not act. This, it must be noted, results ultimately in a prescriptive and profoundly illiberal right to housing. The CESCR’s and European Social Committee’s interpretations of the right appear to require not only general state intervention but also the creation of specific housing laws. This highlights the danger that the creation of law becomes the end, rather than the means, to the fulfilment of the right to housing. It also risks creating a situation where the implementation of policy comes to be seen as itself the realisation of a right, despite any necessary connection between the existence of such policy and the alleviation of the conditions of violation and marginalisation which characterise the current living conditions of so many. In reality, the right to housing may remain unrealised despite a wealth of legislative and executive initiatives. To adopt (and adapt) a Marxist analysis, the right to housing is affirmed and made apolitical, yet homelessness and material disparity in living conditions are allowed to continue on, in their own way, as inequalities and deprivations.42 These apprehensions are formed around a fundamental concern that the right to housing is meaningless unless it succeeds in improving the concrete living conditions of those who are marginalised and powerless both within and among states. As is evident from considering the current interpretation of the right to housing, while the availability of fair legal process may be immensely important in the realisation of human rights, it may be inadequate if such a process either masks or ignores current inequalities that lead to the deprivation and violation of the right. If the legal right to housing is inadequately embedded in the context of the actual social ills that human rights seek to redress, then the right clearly fails to fulfil its potential in striving towards human emancipation and fulfilment. It is this problem to which I now turn.

41  S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (New York, Oxford University Press, 2008) 88–90. 42   See K Marx, ‘On “The Jewish Question” ’ in RC Tucker (ed), The Marx-Engels Reader 2nd edn (Norton and Company, New York, 1978) 33. For a similar insight in the post-Apartheid context, see M Pieterse, ‘Eating Socio-economic Rights: the Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29 Human Rights Quarterly 796.

134  The De-radicalised Right to Housing C.  The Failure of the Legal Right to Housing in the Context of Human Rights Violation The final failure in the current legal interpretation of the right to housing is the failure to fully embed the right in the social context out of which its violation arises. This is the most fundamental weakness revealed in the legal interpretation of the right. While the availability of legal process can be of great importance in the realisation of human rights, and an open definition of a human right can at times unlock space for political contestation and reinvention of the right itself, the failure to connect the legal interpretation of a right with the conditions of its violation is a weakness with no apparent redeeming features for the marginalised and violated themselves. The social context of the violation of the right to housing, though different in each state, region or city, includes the undisputed fact that the majority of the world’s population do not enjoy a standard of living that comes close to the actual enjoyment of adequate, safe or secure housing. Rather, in many states, the majority of citizens live in conditions in which their right to housing is illusory. They live in circumstances of insecure tenure in slums and informal settlements. They have no access to land or title to the land on which their homes sit. They are subject to forced removal and inadequately supported resettlement in the face of urban and rural development projects, industrialisation and city beautification. Many of the most marginalised – the poor, women, indigenous peoples and migrant workers – are actively denied and passively ignored at the expense of powerful vested interests both within and beyond the states in which they live.43 Yet the right to housing as currently interpreted across the international, regional and national contexts explored in this book generally operates at a high level of abstraction from these conditions of material deprivation. First, despite the fact that at the international level, the right to housing is an element of the right to an adequate standard of living, there is little exploration of how housing contributes to the adequacy of living standards, or the relationship between the physical infrastructure that constitutes housing and the human goods, needs and desires that constitute a fulfilled and adequate human life. Such an examination should be central to the interpretation of the right to housing, and should draw on the fundamental principles that human rights seek to protect and provide. While courts are often hampered in their enforcement of human rights by limited remedial provisions, and monitoring bodies are often expected to focus on the sufficiency of state policy responses rather than the substantive enjoy43   See generally M Davis, Planet of Slums (London, Verso, 2006); UN-Habitat, State of the World’s Cities (2010–11), Cities for All: Bridging the Urban Divide (London, Earthscan, 2010); S Marks, ‘Human Rights and the Bottom Billion’ (2009) 1 European Human Rights Law Review 37.



The Legal Interpretation of the Right to Housing  135

ment or violation of the right to housing, there is in fact no inherent contradiction between these institutional constraints and a deep awareness of, and examination by, courts and monitoring bodies of the social conditions of human rights violation. Nevertheless, on the whole, the legal consideration and interpretation of the right to housing largely exists in abstraction from these fundamental concerns. This is particularly the case with the work of the CESCR. The element of security of tenure can be seen as the most significant example of the CESCR’s failure to embed the right to housing in the social and economic context in which it exists. Although the Committee has dealt extensively with the issue of forced evictions in relation to security of tenure,44 it has not paid sufficient attention to the systemic issues underlying the inability of large proportions of the world’s population to enjoy security of tenure. Systemic issues of land ownership and control, the marginalisation and dispossession of indigenous peoples and the forced removal of people from their lands to make way for development projects and industrialisation severely affect the right to housing. These issues have yet to be tackled by the CESCR, and statements in the General Comments that do take these issues into account have not been fully explored by the Committee, leaving security of tenure as a measure to tackle forced evictions, but not the underlying insecurity that gives rise to them. It is in South Africa, however, where the failure of the courts to fully connect the right to housing to the actual deprivation it seeks to address is most evident. Here, a right to housing was enshrined in the new, post-Apartheid constitutional era, heralded as one that sought to transform South Africa’s staggering inequalities of goods and opportunities. Yet rather than embracing a ‘transformative’ jurisprudence by enforcing a fully substantive right to access to adequate housing, the Constitutional Court’s jurisprudence has been cautious and conservative. The cases on the right to housing have not led to a substantive definition of the right and the Court’s approach has been to employ administrative law principles of reasonableness, impose duties to consult and set out processes of engagement between the state and the complainant. Few cases have resulted in concrete remedies being ordered, despite the Constitution’s wide provision for the Court to grant ‘appropriate relief’ for the violation of human rights.45 The result has been that even where the Court has found the state to be in violation of the right to housing, little alleviation of the real suffering and inequality of the citizens has followed.46 As noted above, concentrating on legal process can shift attention away from the conditions that make actual social change possible. This appears to be the case in South Africa, where the bulk of the jurisprudence suggests that so long as the government acts reasonably, material deprivation and inequality of opportunity will remain unremedied. Despite the fact that the constitutional   See Ch 1, III.A.i.   Constitution of the Republic of South Africa (1996) s 38.   See further Ch 4, II.

44 45 46

136  The De-radicalised Right to Housing provisions, coupled with the context in which the Constitution was drafted and certified, appear to strive for economic, social and cultural change, there is in fact little meaningful recognition within the jurisprudence of the need to link the right with the actual economic, social and cultural deprivations that still plague South African society. The Joe Slovo case may signal a shift in judicial discourse in South Africa, with greater attention focused on the living conditions of the plaintiffs and some dissatisfaction among the judges with the use of private law principles in a case of constitutional rights.47 However, it remains to be seen whether this awareness will translate to real protection of the rights of the Joe Slovo residents or the many other South Africans like them, and the rescinded order in the case indicates an opposite conclusion.48 An investigation into the social and cultural conditions which underlie the right to housing might be a fruitful avenue of analysis for those international and regional bodies considering housing in the context of specific forms of discrimination. For example, the Committees overseeing the CERD, the ICESCR and the RESC are specifically empowered to consider issues of non-discrimination and equality in their interpretations of the right to housing. To date, however, the interconnections between access to and enjoyment of housing, and racial, social and gender discrimination, remains a marginalised topic in the work of these bodies. The CEDAW Committee’s decision in Kell v Canada49 illustrates the intersecting nature of rights violations and denials and the home’s central place in these issues, and provides evidence that the CEDAW Committee may take a stronger stance on these violations in future. Meanwhile, the African Commission and the Inter-American human rights bodies’ work illustrates that these bodies take cognisance of the relationship between the right to housing, the right to land, and the rights of peoples to culture and to political and social subjectivity, however as yet these issues remain to be fully explored.50 By ignoring what are, admittedly, vast questions on the subject of the economic and social basis of society, those interpreting the right to housing cannot do justice to the future potential of human rights. Nevertheless, the right’s failure in its current iteration should not be taken to mean that it does not have the potential to strive towards human rights’ emancipatory goals. The question thus becomes, how can we reconnect the right with the conditions of social dispossession and want that drove its inclusion in the international corpus of human rights in the first place? One answer may lie in the exceptions to the dominant legal interpretation. Despite the general disengagement of the legal interpretation of the right and the social context of its violation, there are examples of decisions and statements on the right to housing where the concrete living conditions of individu  Joe Slovo, above n 13. See further Ch 4, II.C.   Joe Slovo, Judgment on rescinded order, above n 32. 49   Cecilia Kell v Canada (19/2008), Judgment, 28 February 2012, CEDAW c/51/D/19/2008. See further Chapter 2, II. 50   See further Ch 3, III and IV. 47 48



Conclusion  137

als and families form the central plank of argument. The European Social Committee has paid significant attention to those worst off in its consideration of state policies in Europe, even from within a classic ‘monitoring body’ approach.51 The UK House of Lords case of Limbuela52 made explicit links between the right to home and family life and the actual deprivation visited on the plaintiff, who was denied access to minimal material goods, including housing. India’s housing rights cases, particularly Olga Tellis and Chameli Singh, provide some of the most explicit and powerful justifications for treating housing as a human right, recognising its social and personal functions.53 A similar jurisprudence is waxing in the Inter-American system,54 just as it seems to wane in India. And the Joe Slovo case in South Africa may indicate a glimpse of a new willingness on the part of South Africa’s Constitutional Court judges to take a more radical approach to their Constitution.55 III. CONCLUSION

As this chapter illustrates, the current legal interpretation of the right to housing suffers from various serious weaknesses, which are revealed by considering the legal interpretation of the right in light of the social context in which it is invoked, mobilised and claimed. First, courts and monitoring bodies responsible for giving meaning to the broad and open-textured provisions of inter­ national and regional Conventions and national constitutions have, overall, failed to adequately define the right or the obligations to which it gives rise. Secondly, the interpretation of the right has become unduly procedural, even programmatic, in nature, with a focus on the creation of policy rather than the substantive conditions necessary for the realisation of the right. Finally, the legal interpretation of the right operates at a high level of abstraction, such that there is a general failure to embed the right in the actual circumstances of deprivation and violation which characterise the lives of many people around the world. Yet it is unnecessary to reject the power and utility of the right to housing based on its current legal interpretation. Like most economic, social and cultural rights, the right to housing has achieved a status in human rights law that has not been attended by the long history of philosophical reflection given to other human rights. The content, meaning and scope of rights such as liberty or freedom of expression has been refined and strengthened by arguments and counter-arguments over the course of centuries.   See further Chapter 3, II.A.   R (on the application of Limbuela) v Secretary of State [2005] UKHL 66 (UKHL). See further Chapter II.B.ii. 53   See Chapter 4, III. 54   See Chapter 3, IV.B.ii. 55   Ch 4, II.C. 51 52

138  The De-radicalised Right to Housing In the next Part of this book, I provide a starting point for such a process of reflection on the right to housing. In it, I investigate the meaning and power of the right to housing. At the same time, I seek to provoke counter-arguments through which our understanding of this right can be developed and debated.

6 Privacy I. INTRODUCTION

T

HE ANALYSIS IN this chapter considers three different manifestations of homelessness and their impact on privacy. Each of these manifestations of homelessness offers insights into the value and purpose of privacy and the private space in living a full human life. An analysis considering homelessness and privacy illuminates the many human goods, needs and rights that are lost for those who experience homelessness. Crucially, all three manifestations of homelessness are constructed through the operation of the law. The first is the homelessness of the street person. This is the deprivation of the physical structure of the house, a de facto denial of private space and, importantly, of the right to inhabit such a space. For these people, the denial of the private space amounts to a denial of the freedoms and rights provided by that space – in fact by privacy itself. The second manifestation of homelessness is women’s ‘essential’ homelessness. This is the situation in which women are denied a right to the houses into which they are born, marry and die by the denial of rights to property, housing or land. This is a homelessness that remains invisible and which is, often, attended by an enforced, though rightless, privacy. Finally, I argue that the living situations of some domestic workers, for whom home is work and work is also home, may amount to a situation of homelessness when the worker is denied the control and authority normally provided by the private space of the home and the rights associated with it. The homelessness of the street or pavement dweller, considered in III foregrounds the need for a private place in which to be and exist. It illustrates the way a right to housing protects against the social and personal deprivations that attend the loss of housing. Women’s essential homelessness, discussed in IV foregrounds the question of the right to the house, illustrating that a focus on the material provision of a house is only a partial understanding of the relationship between housing, privacy and the role of rights. Finally, the homelessness experienced by the migrant domestic worker highlights the added aspect of ‘home’; that is, Part V illustrates the need for control over, and authority in, a private space. In focusing on the more subjective or experiential notions of home, this discussion provides a link into the discussion of identity, which forms the subject matter of the following chapter.

146  Privacy The interplay of housing and privacy set out in this chapter illuminates how the concept of privacy is central to social interactions. Although at first blush privacy suggests being apart, it cannot be understood as a valued experience other than within society.1 Privacy is thus a question about where we wish to draw boundaries.2 These boundaries are both conceptual, like the idea of rights, and physical, like the walls of a house itself. Thus, this chapter illuminates the way house and home are bound up with our notions of social citizenship and human personhood, and how rights construct and are constructed within these discourses. These issues illustrate that the human right to housing can serve to focus our attention on issues of marginalisation and degradation that are often obscured or ignored in other privacy analyses. At the same time, the analysis shows that an argument for a human right to housing can further our understanding of the significance and role of privacy itself. II.  PUBLIC/PRIVATE AND THE OPERATION OF LAW IN THE CREATION OF HOMELESSNESS

Any human rights analysis based on the idea of privacy takes place against the backdrop of the distinction between the private and the public spheres of life. Liberal conceptions of privacy and its relationship to the house and home as the paradigmatic private space have deep and specific impacts on legal theory and practice, as well as on cultural and political assumptions. These have had a broad influence beyond, as well as within, the West. Liberal rights theory and practice have been widely disseminated through colonial legal and educational systems, governance initiatives, even through the international human rights regime itself. As such, the distinction between the public and the private imbues any discussion of privacy with a host of (at times unstated) assumptions about the distinction between freedom and regulation; and individual and society.3 Throwing privacy and housing together, and adding rights to the mix, immediately brings the public/private distinction to the surface where its importance, relevance and implications must be examined and critiqued. In order to understand the intricate historical and cultural relationships between privacy and the house or home that inform the law, this chapter begins by turning its attention to the legal, political and philosophical concept of the distinction between the public/private. In theory, the public realm is equated with politics, law and citizenship. The public sphere is regulated by the state, subject to negotiation with and through the state, and carried out in the view of the state. It is contrasted with the pri-

1   See K Hughes, ‘A Behavioural Understanding of Privacy and its Implications for Privacy Law’ (2012) 75(5) Modern Law Review 811, 813. 2   R Gavison, ‘Privacy and the Limits of Law’ (1979) 89 Yale Law Journal 421, 425. 3   R Gavison, ‘Feminism and the Public/Private Distinction’ (1992) 45 Stanford Law Review 1, 6.

Public/Private and the Operation of Law in the Creation of Homelessness  147 vate realms of the family and the market,4 where ‘private interests’ are at play, and which are seen as dominions of free choice, autonomy and intimacy. Those matters that are considered to fall within the private sphere necessarily fall outside the political, social or public arena. Moreover, their definition as private governs the response to them; that is, ‘the particular problem is of no public interest or concern’.5 The sanctity of a sphere of life, which is not subject to state oversight, control or interference, is thus considered the principal limit on the state’s coercive power.6 While the theoretical prohibition on state interference in the private realm could be seen as a purely conceptual commitment to a sphere of privacy, in fact certain physical spaces have been endowed with the paradigm characteristics of the private, making the private realm not only theoretical but also physical. Chief among these private physical spaces is the home, which takes on symbolic importance as the quintessential location of the private and becomes the cardinal physical space into which the state must not intrude. Ideas of privacy have consistently placed what occurs within the home as outside the law, belonging to and in a private realm, and untouched by legal regulation. These conceptual links between privacy and the home imbue privacy with a key spatial dimension. Moreover, the construction of the home as the private space places the home in opposition to the public space and the realm of public life. Each manifestation of homelessness examined below illuminates the way that this distinction operates, and offers us ways to re-evaluate the worth and role of privacy through attention to the right to housing. Despite the conceptual commitment to a public/private dichotomy, there is no bright line between the public and private. In fact the ‘private’ space of the home is heavily regulated and controlled by law.7 Among other legal regimes, landlord and tenant law regulates the relationship between owner and occupier; property law regimes regulate land use; criminal and family law regulate the conduct of individuals within the home; and trust and inheritance law regulate the succession of homes. Some of these regulations may be undertaken with the specific aim of protecting the home as a private sphere, for example, the protection against forced eviction and the guarantee of peaceful enjoyment for tenants, or the prohibition against using one’s property in a way that constitutes a nuisance to others. However, some are explicit efforts to control the relationship between private individuals and their impact on each other’s privacy. In other words, although the existence of a right to housing is often criticised as an opportunity for the state to encroach into the sphere of individual and family 4   Gavison writes that: ‘While for the Greeks and for most liberal political theorists, the economic is an element of the private, for Marxists, CLS scholars, and radical and socialist feminists, it is an important part of the public’. Ibid 21. 5   Ibid 19. 6  J Shklar, ‘The Liberalism of Fear’ in N Rosenblum (ed), Liberalism and the Moral Life (Cambridge, Harvard University Press, 1989) 24. 7  N Lacey, ‘Theory into Practice? Pornography and the Public Private Dichotomy’ (1993) 20 Journal of Law and Society 93, 94–96.

148  Privacy freedom, even privacy claims should be understood as, at times, claims for state interference in the form of legal protection of privacy,8 thus illustrating that liberty may require positive intervention by the state. This point also reminds us that freedom can be realised in different ways.9 It is these issues that are highlighted by the three manifestations of homelessness examined below. III.  VISIBLE HOMELESSNESS OF STREET AND PAVEMENT DWELLERS AND THE DEPRIVATION OF THE PRIVATE

It is the ‘street person’ who represents the stock image of the homeless individual, and is the most observably affected by the denial of privacy attendant on the loss or lack of housing. In rich, developed countries, homeless street dwellers tend to be numerically few, but their presence amidst conspicuous wealth is discordant.10 Their presence on the street is often accompanied by the perception that their lives are tainted by criminality, mental illness, dependence and personal failure: ‘they have not met the expectations and demands of society, expectations which they appropriated. And society does not cease to feed the shame they feel through the looks cast by passers-by’.11 The lives of these individuals tend to be defined by extreme poverty of income and high social isolation.12 Lack of a fixed address often leads to denial of the entitlements and rights enjoyed by housed individuals, including voting rights, welfare, educational and health benefits, and access to credit and financial services.13 Such denial of rights and benefits concurrently produces and entrenches the deprivations experienced by those who live their lives on the streets. In poorer countries, the presence of homeless individuals on the streets may present a less visually discordant spectacle. Street and pavement dwellers may remain economically and socially integral to their communities in a way that the homeless in developed states do not, with many employed as sweepers or day labourers.14 However, the homelessness that manifests itself in the street   Gavison, ‘Privacy and Limits of Law’ above n 1 at 438.   N Bobbio, The Age of Rights (A Cameron (trans), Cambridge, Polity Press, 1995) 18. 10   DJ Porteous and SE Smith, Domicide: the Global Destruction of Home (Montreal, McGillQueen’s University Press, 2001) 15. 11   MC Vanneuville, ‘Transient Women, Suffering Women, Beyond Appearances: the Association Femmes SDF by their Side’ (2010) FEANTSA Magazine 15. See also J Calterone Williams, ‘The Politics of Homelessness: Shelter Now and Political Protest’ (2005) 58 Political Research Quarterly 497. 12   P Rossi and J Wright, ‘The Ghetto Underclass: Social Science Perspectives’ (1989) 501 Annals of the American Academy of Political and Social Science 132, 135. 13   M Harrison, I Law and D Phillips, on behalf of the European Monitoring Centre on Racism and Xenophobia, Migrants, Minorities and Housing: Exclusion, Discrimination and Anti-Discrimination in 15 Member States of the European Union (European Monitoring Centre on Racism and Xenophobia, 2005) 64. 14   A Appadurai, ‘Spectral Housing and Urban Cleansing: Notes on Millennial Mumbai’ (2000) 12 Public Culture 627, 629. See also PC Mishra, ‘Right to Shelter: a Human Right Perspective’ (1998) 40 Journal of the Indian Law Institute 230, 240–41. 8 9



Visible Homelessness of Street and Pavement Dwellers  149

presence of individuals in rich states cannot be understood in isolation from homelessness elsewhere in the world. Forced displacement and homelessness are linked to the movement of people across borders in the face of war and civil strife, as well as in response to global market pressures and flows of capital, into and out of both rich and poor states.15 The actual and legal homelessness of the street dweller strikingly illustrates the centrality of housing to our ability to enjoy privacy itself. Housing is, in this sense, an instrument: it provides us with the location in which we are able to exercise vital human functions. These are ‘basic’ functions which, in the context of our current social mores, must be undertaken in private in order for the individual to be considered as a fully acceptable member of society. That these actions or functions are considered private at all illustrates the force of social commitments to a distinction between what one may do alone or in the company of friends and family, and that which may appropriately be observed by strangers. Aspects of daily life which, for most people, are performed in the home are, for the homeless, instead lived on the street. Cooking, washing, sleeping, arguing and praying all take place in spaces that are only as concealed as the individual is able to make them. Those who must perform these intimate activities in public, Arjun Appadurai writes, are ‘those who can be at home only in their bodies’.16 And while the street or pavement dweller may make successful arrangements that guarantee her some degree of de facto privacy, as Ruth Gavison points out, this is not really a case of privacy at all, but anonymity: such seeming privacy can be taken away the moment someone else takes notice,17 or more likely, takes offence. Despite such anonymity, the relationship to the space which a homeless street person inhabits, with whatever degree of discreteness she has achieved, is not ensured by the protection of rights in the law. The lack of rights applies both for those who appear as homeless on the streets, and those who make up the numbers of the invisible homeless: those who sleep on the floors of friends or extended family, or live out of their cars, for example. They too exist in a situation of legal precariousness not experienced by the housed. The role of legal rules in the deprivation of privacy experienced by the homeless street person has been lucidly illustrated by Jeremy Waldron. Waldron’s argument highlights the interconnections between rights and our actual physical existence, which, as he notes, must be experienced somewhere.18 This gives rights a crucial spatiality, made strikingly evident by the denial of private space that characterises this condition of homelessness. 15   S Marks and A Clapham, International Human Rights Lexicon (Oxford, Oxford University Press, 2005) 209. 16   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 14 at 638. 17   Gavison, ‘Privacy and the Limits of Law’ above n 1 at 469. 18   J Waldron, ‘Homelessness and the Issue of Freedom’ (1991) 39 UCLA Law Review 295, 296. See also M Heidegger, ‘Building Dwelling Thinking’ in Poetry, Language, Thought (A Hofstadter (trans), New York, Harper Colophon Books, 1971) n 17 pt 1.

150  Privacy Given that our societies are governed by private property rules that parcel out land and space into areas from which owners may exclude others at their will, the homeless are denied a place from which they ‘may not at any time be excluded as a result of someone else’s say-so’.19 Thus Waldron notes that only the existence of collective property that is available for common use provides a space in which the homeless may, as a matter of law, exist.20 Yet as crucial as this common space is for the actual existence of those who are homeless, its availability can serve to obscure how comprehensively the denial of private space leads to the denial of rights. However, increasing regulation of common space, and hostile responses to the visibility of the homeless across the world, have led increasingly to restrictions and draconian regulation of common and public spaces in which the homeless might otherwise exist.21 This situation highlights the catastrophic consequences of the denial of space and rights to the homeless street and pavement dweller. Waldron writes of an emerging state of affairs in which ‘citizens have no place to perform elementary human activities like urinating, washing, sleeping, cooking, eating, and standing around’.22 These activities – sleeping, washing and urinating – are not ones of choice, rather, they are ‘primal human tasks’.23 However, the deprivation of a private space in which to perform these necessary and unavoidable biological actions is not merely a matter of inconvenience: it is a question of freedom itself. The spatial aspect of freedom – that one must have somewhere in which one is free to do ­something – means that the denial of that space is a denial of freedom itself. It can be argued that a private space is thus inherent, not just instrumental, to our ability to participate and belong in society, at least in a society that is premised on private property rights and the cultural expectation that many human activities should not be performed under the eyes of strangers. Thus housing as a human right must be understood as tied to the realisation of other fundamental rights and freedoms. In fact, some of the most compelling judicial statements on the right to housing draw on this connection. For example, judicial attention to the denial of private space and its connection to the fulfilment of basic human needs can be seen in the Indian Supreme Court cases on the right to housing. Chandrachud J, writing the Olga Tellis24 judgment, notes with horror the lack of privacy experienced by pavement dweller plaintiffs in the case. He writes that ‘[t]hose who have made pavements their homes exist in the midst of filth and squalor . . . They cook and sleep where they ease, for no   Waldron, ‘Homelessness and the Issue of Freedom’ above n 18 at 299.   Ibid 300. See also D Mitchell, ‘The Annihilation of Space by Law: the Roots and Implications of Anti-Homeless Laws in the United States’ (1997) 29 Antipode 303, 305. 21   See J Doherty et al ‘Homelessness and Exclusion: regulating Public Space in European Cities’ (2008) 5 Surveillance and Society 290 and K Gray and S Gray, ‘Civil Rights, Civil Wrongs and Quasipublic Space’ (1999) 1(4) European Human Rights Law Review 46. 22   Waldron, ‘Homelessness and the Issue of Freedom’ above n 18 at 301. 23  Ibid. 24   Olga Tellis v Bombay Municipal Corporation AIR (1986) SC 180. See further Chapter 4, III. 19 20



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conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers-by’.25 The deprivation of decent housing reduces individuals to conditions of life that meet, in words taken from the Chameli Singh case, ‘only the animal needs of man’,26 failing to extend to the dignity of life required for social membership and full human personhood.27 A similar argument was raised before the Canadian courts in the 2009 case of Victoria (City) v Adams, where the British Columbia Court of Appeal held that when the homeless had no place else to sleep, a law prohibiting them from erecting any form of temporary shelter under which to lie violated the constitutional right to life, liberty and security of the person.28 The European Convention on Human Rights also recognises the importance of a private life through Article 8, reflecting the ‘heart’ of the private life as ‘the notion of a private space into which no-one is entitled to enter’.29 Some domestic courts applying human rights norms deriving from the ECHR have taken steps to redress the reality of such destitution. This is evident in the Limbuela case in the United Kingdom, where the impact of destitution and homelessness on the Article 8 rights of the individual was explicitly recognised.30 In O’Donnell v South Dublin County Council before the Irish High Court of Record31 and in the English case of R (on the application of Bernard) v Enfield LBC,32 the courts took into account the fact that the inadequacy of housing available to a family may render the enjoyment of the private life illusory. Unlike the right to debate political issues in public, which might be considered a ‘high minded’33 civic pursuit, the freedoms that are denied to the homeless through the denial of a private, unregulated space are, as Waldron notes, ‘basic to the sustenance of life itself’.34 However, a clear line between the freedom of space necessary to the fulfilment of the ‘animal’ needs of the human being, and the more ‘high-minded’ pursuits of citizenship which are enabled through this freedom, is not easy to maintain. Rather, there is an instrumental and arguably inherent link between a secure, safe and adequate place in which to live, and the pursuit of a civic life. In the powerful words of the Indian Supreme Court in Chameli Singh, ‘[s]helter for a human being, therefore, is not 25   Ibid 183. Interestingly, this statement also illustrates the gendered nature of privacy, explored further below. 26   Chameli Singh and others v State of Uttar Pradesh and others (1996) 2 SCC 549, 555. 27   Ibid 555–56. 28   Victoria (City) v Adams (2009) BCCA 563, British Columbia Court of Appeal. 29   DJ Harris et al, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press, 2009) 367. 30   R (on the application of Limbuela) v Secretary of State [2005] UKHL 66. See further Chapter 3, II.B.ii. 31   O’Donnell (a Minor) and others v South Dublin County Council [2007] IEHC 204. See further Chapter 3, II.B.ii. 32   R (on the application of Bernard) v Enfield LBC [2003] UKHRR 148 (Admin) (QB). See further Chapter 3, II.B.ii. 33   Waldron, ‘Homelessness and the Issue of Freedom’ above n 18 at 320. 34  Ibid.

152  Privacy a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually’.35 Moreover, the purpose of this growth is to bring the human being into society, and equip her with the ability to contribute as a citizen.36 The argument linking citizenship and homelessness was also made explicit in the Victoria (City) case where the petitioners argued that the effect of the laws preventing them from erecting temporary shelter was ‘to exclude the homeless from both the benefits and the responsibilities of citizenship – to in effect render the homeless non-citizens’.37 The homeless street person is, as a result of houselessness, denied the benefits, opportunities and rights that construct full membership in society itself. In this way, homelessness can be seen as a condition of rightlessness. Like the stateless, the homeless are profoundly disadvantaged and marginalised in a world where ‘territory still remains the major repository of rights and membership’.38 This consequence alone illustrates how placing housing at the centre of a human rights enquiry can illuminate aspects of the relationship of the individual to society that otherwise remain hidden. The issue of street homelessness thus clearly reveals the importance of a private space to a meaningful and fulfilled human life. Without a private space in which some aspects of life can be performed and enjoyed away from the eyes of the state and society, individuals are profoundly deprived. An adequate and secure private space as a site of private life is of cardinal importance. The house, in fulfilling the function as the location for this private life, is of vital significance. But the commitment to the protection of the home as a private space can, in practice, result in deprivation and the denial of rights. The concept of the home as private space can be used in ways that consign individuals to this sphere of life only. This occurs when the privacy of the home becomes an enforced privacy, and when individuals are denied the opportunity to leave this private space and participate in the public space beyond. It is this problem that I consider in the following section. IV.  WOMEN’S ESSENTIAL HOMELESSNESS AND ENFORCED PRIVACY

In this section, I will consider the legal effects when the privacy of space is forced upon the person, such that the house ceases to be a retreat, and becomes instead a denial. When this enforced privacy is coupled with the denial of rights to the space of the home in which it is experienced, a form of homelessness which is quite different from that of the street dweller occurs.   Chameli Singh, above n 26 at 555.   Ibid 556. 37   Victoria (City) v Adams, above n 28 at para 55. 38   G Kibreab, ‘Revisiting the Debate on People, Place, Identity and Displacement’ (1999) 12 Journal of Refugee Studies 384, 387. 35 36



Women’s Essential Homelessness and Enforced Privacy  153

In this situation, homelessness occurs because of the denial of rights to the house in which the person lives. Like the street homeless, this individual also has no place from which she cannot be excluded at someone else’s say-so. The profound denial of the right to private space experienced in this situation amounts to homelessness in law, if not homelessness in fact. I will explore this apparent contradiction through the ‘essential homelessness’ that marks the relationship of many women to housing, and consider the implications of this homelessness for the privacy of women, and consequently for their enjoyment of full social membership and belonging. A caveat is necessary before I get to the meat of the argument here. By undertaking this analysis, I do not mean to suggest that all women experience home as a place of denial or violation. While for some women, this may indeed be the case, for many women home is a sanctuary and place of empowerment. At times, the home may simultaneously be both. The purpose of the analysis is to illustrate the legal significance and implications of women’s essential homelessness, and to use this example to illustrate the power and possibilities inherent in housing as a right. It is not to essentialise women’s relationship to the house and home, however powerful the ideological and practical associations may be. Moreover, it would be wrong to characterise women’s experience with the home as wholly negative. Law, life and literature are replete with examples of women’s satisfaction, empowerment and fulfilment within the home. The case of Cecilia Kell v Canada considered by the CEDAW Committee39 is a powerful reminder that while women may experience abuse and the violation of rights within the home, the struggle for an adequate and secure home remains, at the same time, a powerful motivator for women’s demand for their rights. Thus, women must not be characterised as imprisoned victims in the home. However, the fact of women’s essential homelessness is an important insight into the ways in which law continues to work against women and their enjoyment of human rights. To illustrate the intersecting relevance of rights, privacy and the home for women is to reveal a basis upon which to critique these denials and understand how they relate to other harms and deprivations. Both the normative and descriptive dimensions of the dichotomy between public and private space and action are significant in women’s enjoyment of meaningful privacy and rights to the home. As an ideological construct, the distinction between the public and private has been used to confine women within the home. The term ‘citizen’, as developed in enlightenment thought, was ‘organized around male experience’, which included the expectation of the man’s personal autonomy, mobility, independence and public involvement in rational civic pursuits.40 Meanwhile, women’s place and women’s experience were tied to the domestic realm, where the ‘familial model became the closed, nuclear, bourgeois family, the site of “virtue”, 39   Cecilia Kell v Canada (19/2008), Judgment, 28 February 2012, CEDAW c/51/D/19/2008. See further Chapter 2, II. 40   M Evans, Introducing Contemporary Feminist Thought (Cambridge, Polity Press, 1997) 25.

154  Privacy affection, comfort and graciousness’.41 Thus, the public/private distinction is a gendered one. At the same time, the woman also enjoyed a lesser legal status or subjectivity. This subordination both buttressed, and was buttressed by, the ‘hierarchical ordering of intimate relations’, which is obscured by the opacity of the family unit to the state.42 The exclusion of women from citizenship and legal subjectivity was also reinforced by an economic model in which the ‘family wage’ brought home by the male breadwinner enabled the woman to maintain her space within the home and outside the ‘public’ wage economy.43 The woman’s role was tied to those aspects of life that the workplace, and thus the public realm, discarded.44 Despite the apparent historicity of this picture and its seeming cultural specificity in the post-industrial West, it remains relevant for two reasons. First, these assumptions about the public/private distinction run through our contemporary understanding of human rights. Human rights operate within this conceptual and practical dichotomy. The state’s blindness to the home fosters an understanding of human rights in which rights that regulate or constrain actions in the private sphere are seen as illegitimate, trampling on sacred private ground. Meanwhile, the state as an entity remains built on a social organisation in which the activities occurring in the home, provided through a woman’s ‘normal’ role, are ‘instrumental in providing’ what might otherwise be thought of as rights opposable to the state.45 Secondly, on a social and cultural level, the lives of women continue to revolve around the home more closely than those of men, often because of child-rearing and caring responsibilities. Women ‘are the primary users of housing and therefore the most affected by housing’.46 As such, the descriptive force of the public/ private dichotomy, and the differential rights experienced by women in the private realm, remain highly relevant, particularly in light of the fact that the ‘evidence of the continued global oppression of women remains overwhelming’.47 Thus, across the globe, women share a factual connection with the home that men do not. But at the same time, they are marginalised in the construction, interpretation and enforcement of rights to (and in) the home. The normative force of the public/private distinction as an organising principle of society 41   S Wright, International Human Rights, Decolonisation and Globalisation: Becoming Human (Routledge, New York, 2001) 28. 42  C Romany, ‘Women as Aliens: a Feminist Critique of the Public/Private Distinction in International Human Rights Law’ (1993) 6 Harvard Human Rights Journal 87, 101. See also F Engels, ‘The Origin of the Family, Private Property, and the State’ in RC Tucker (ed), The Marx-Engels Reader, 2nd edn (New York, Norton and Company, 1978). 43   H Shamir, ‘Between Home and Work: Assessing the Distributive Effects of Employment Law in Markets of Care’ (2009) 30 Berkeley Journal of Employment and Labor Law 404, 409–10. 44   A Hochschild, ‘The Nanny Chain’ (2002) 3 American Prospect 32. 45  Wright, Becoming Human above n 41 at 75. 46   L Farha, ‘Women and Housing’ in KD Askin and DM Koenig (eds), Women and International Human Rights Law (New York, Transnational Publishers, 1999) vol 1, 486. 47   J Conaghan ‘Reassessing the Feminist Theoretical Project in Law’ (2000) Journal of Law and Society 351, 354.



Women’s Essential Homelessness and Enforced Privacy  155

remains. As a result, the realisation of a right to housing can be seen as an issue of special significance for women. Nowhere is the factual association of women to the home contrasted more strikingly with the denial of rights to the home than in the situation of women’s essential homelessness. The issue of essential homelessness was first raised in the context of the right to housing by the first United Nations Special Rapporteur on Adequate Housing, Rajinder Sachar.48 He identified the violation of the right to housing that occurs when women are denied legal rights to the homes into which they are born, into which they marry, and in which they die. For Sachar, this situation was so pervasive that he considered that ‘the most critical factor in the perpetuation of gender inequality and poverty is the continued discrimination faced by women in all matters of land and property’.49 Despite the early work of the UN Special Rapporteur in this area, it has received little attention in scholarship or activism. Some work on the denial of the rights of women to own, control, inherit, or dispose of land does exist,50 and this situation is clearly bound up with the problem of essential homelessness. However, land is little discussed in the jurisprudence on the right to housing. This is despite the fact that the spatial characteristic of the house as a physical structure that must be located somewhere can serve to focus debate on the relationship between land and the ability of individuals to enjoy adequate housing conditions. This situation of women’s essential homelessness endures in many places. While many would argue that essential homelessness no longer plagues women in Western, developed states, the issue is a pervasive one in many cultures where women continue to be denied legal or practical access to land and housing except as mediated through their relationships with men. Moreover, echoes of the practical and theoretical exclusion of women from rights to housing and in the home are sufficiently enduring in Western legal culture, including in human rights culture, to make the issue of continuing significance worldwide. Yet there remains little attention to the denial of women’s human rights to the home itself in the scholarship on human rights at the domestic, regional or international levels. Ironically, perhaps women’s rights to the home have been assumed precisely because the home is regarded as the domain of the female, illustrating the power of the public/private dichotomy in constraining our understandings of human rights realisation in the first place. 48   United Nations Commission on Human Rights, Report of the Special Rapporteur on Adequate Housing, Rajinder Sachar, The Realization of Economic Social and Cultural Rights: the Right to Adequate Housing: Final Report, E/CN.4/Sub.2/1995/12 (1995). 49   Ibid para 46. 50   See eg B Agarwal, ‘Who Sows, Who Reaps?: Women and Land Rights in India’ (1988) 15 Journal of Peasant Studies 531; Human Rights Watch, Double Standards: Women’s Property Rights Violations in Kenya (Human Rights Watch, 2003) vol 15, no 5(A); Centre on Housing Rights and Evictions and Women’s Land Link Africa, The Impact of National Land Policy and Land Reform on Women in Uganda (CORHE, 2010).

156  Privacy In contradiction to the presence and visibility of the street dweller, the essential homelessness of women is concealed: essential homelessness is a condition of homelessness that occurs within the home itself, when a woman has no legal entitlement or right to the home in which she lives. Although the woman may reside in an established, adequate and safe home over a long period of time (perhaps in most cases over her whole life) she may yet be entitled to do so only by virtue of her relationship to a man whose legal right to the home is paramount. Given the existence of essential homelessness, in cases where the relationship between the woman and man on whom she relies for her place in the home breaks down in fact or in law, the woman may be rendered literally homeless. The CEDAW complaint NSF v Great Britain and Ireland,51 illustrates the effects of such essential homelessness, although the CEDAW Committee did not address it in such terms: the petitioner was forced to flee first her house, then village, and eventually state due to threats and violence perpetrated by her husband.52 Her lack of an accessible right to the house in which she lived led down a slippery path at the end of which lies statelessness. As Guilia Paglione notes, when a woman in a situation of domestic abuse has no access to legally secure tenure, she is ‘forced to remain a prisoner in her own home’ or ‘to accept homelessness’.53 Paglione’s call for domestic violence to be reconceputalised as a violation of the right to housing is a recognition of the specific denial of the right to housing for women. She highlights that the violation of women’s housing rights through domestic violence include the denial of standards of adequacy, legal security of tenure and habitability, all of which are required for the enjoyment of the right.54 However, Paglione’s most notable contribution is to argue that domestic violence may amount to forced eviction, as women are ‘coercively removed from their homes, chased away, and left with no alternative place to go’.55 The forced eviction of a woman subject to domestic violence highlights the de jure essential homelessness of the woman, who cannot rely on the law to protect her housing in the face of violence and violation. However, while Paglione extends this argument only to women whose human rights are under threat in situations of domestic abuse, the analytical frame of essential homelessness shows that even when a woman does not suffer abuse, she may not enjoy the right to housing. Moreover, even where formal laws provide for women’s rights to the home, the existence of customary, religious and cultural practices that deny these rights to women56 illustrates that while formal   NSF v Great Britain and Ireland (10/2005), Judgment, 12 June 2007, CEDAW/C/38/D/10/2005.   Ibid paras 2.2–2.4. See further Chapter 2, II. 53  G Paglione, ‘Domestic Violence and Housing Rights: a Reinterpretation of the Right to Housing’ (2006) 28 Human Rights Quarterly 120, 129. 54  Ibid 124–32. See also S Choudhry and J Herring, ‘Righting Domestic Violence’ (2006) International Journal of Law, Policy and the Family 95, showing that domestic violence may violate ECHR Art 8. 55   Paglione, ‘Domestic Violence and Housing Rights’ above n 53 at 139. 56   Farha, ‘Women and Housing’ above n 46 at 511–14. 51 52



Women’s Essential Homelessness and Enforced Privacy  157

equality may be of immense importance, in the face of the ideological exclusion of women from the public sphere, it does not guarantee substantive equality. Focusing on the issue of essential homelessness as one of central importance in the normative construction of a right to housing serves a broader purpose: it allows us to ask why questions of women’s rights to the home remain little addressed in discussions of the right to housing as a human right. That this question has not been adequately addressed in the legal interpretation of the right to housing has implications not only for women but for all marginalised individuals and communities. Clearly, women’s essential homelessness illustrates that in many ways, women’s experience of homelessness is conspicuously different from that of men – although street homelessness should not be considered ‘male’, nor is male street homelessness an ungendered phenomenon.57 Nevertheless, while a homeless man may be visible because he has been removed from the private sphere of the home and forced into the public space, women may be both housed and at the same time homeless as a matter of right. Women’s security of tenure in these instances should be understood as primarily dependent on a legal or customary relationship with a man, not as based on an independent legal right owed to the woman as a human being or citizen of a state (though this is not to say that the relationship between the man, woman and home is not one structured by the law). While for both the street dweller and the essentially homeless woman, there is no place from which she cannot be excluded other than at someone else’s say-so, unlike the homeless street or pavement dweller, women’s relationship with the home has not been one to which the denial of privacy is central. Rather it has been, and at times remains, one which is based on the denial of the public realm and the obligation to reside in the private. It is a situation that entails too much privacy, rather than too little. As Virginia Woolf reflects in A Room of One’s Own ‘I thought how unpleasant it is to be locked out; and I thought how it is worse perhaps to be locked in’.58 The essential homelessness of women sheds light on how women experience both rights and privacy. As Susan Marks and Andrew Clapham note, privacy originally connoted privation and deprivation, and was associated with the status of persons who were disengaged from or deprived of official or public position.59 An enforced and rightless privacy should be understood in light of this etymology. Even where women no longer experience the dramatic, hidden, circumstance of essential homelessness, the historical and cultural echoes of women’s denial   S Young, Gender Perspectives on Homelessness’ (2010) FEANTSA Magazine 2.   V Woolf, A Room of One’s Own (London, Penguin, 2004) 27–28. 59   Marks and Clapham, International Human Rights Lexicon above n 15 at 259. The Latin root of the word privacy is privare which means to separate or deprive. The Greek word for the private citizen, idiota, from which we derive the word idiot, is perhaps even more illuminating of the denials associated with a lack of public status. 57

58

158  Privacy of rights to and in the home through the maintenance of a public/private dichotomy can be heard in our contemporary human rights law and practice. A bare reminder is provided in the text of the ICESCR. Article 11(1) of the ICESCR reads in part that states parties ‘recognize the right of everyone to an adequate standard of living for himself and his family’.60 The CESCR’s General Comment 4 addresses this discriminatory language, stating succinctly that while the provision may reflect historic gender assumptions, the phrase ‘cannot be read today as implying any limitations upon the applicability of the right to individuals or to female-headed households or other such groups’.61 Despite the reference to ‘everyone’, the provision is a simple but stark reminder of the depth of the assumptions underlying the man’s position as the public face of the home and the representative of its inhabitants before the state, as well as the assumed provider of an adequate standard of living in the first instance. In practice, moreover, the CESCR’s General Comment 4 assumes that men continue to be the natural heads of households: the term ‘female-headed household’ is problematic in that it accepts that in each household where a man is present, he is dominant and to be preferred as its representative to the outside world. Women in male-inhabited households are still screened from view by the position of the man as the public representative of the unit. Thus, the suppositions of legal theory and practice continue to inform and influence our understandings of women’s relationship to the home. In the home, women were, and to some extent remain, hidden from the law both metaphorically and physically. Their status as part of the private world, sheltered from the concerns of the state and the political realm of citizenship, made them invisible to and in law. Meanwhile, the physical place of the woman in the private home creates the factual situation which underpins the argument for women’s exclusion from the public realm of law and the state, and simultaneously reinforces the division. This has occurred not only in the West, where the public/private distinction is buoyed by the supremacy of liberal legal theory, but across the world where the reception of colonial laws based on the public/private distinction has likewise reinforced existing gender roles and the place of women in the home and outside of greater society.62 The way in which this denial of the public sphere and public life devalues, and can even render the private sphere meaningless, has been forcefully articulated by Catharine MacKinnon, who writes: For women, the measure of the intimacy has been the measure of the oppression. To see the personal as political means to see the private as public. On this level, women have no privacy to lose or to guarantee . . . Privacy is everything women as women 60   International Covenant on Economic, Social and Cultural Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 3 January 1976) Art 11(1) (emphasis added). 61   United Nations Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1): Committee on Economic, Social and Cultural Rights General Comment 4 (1991) E/1992/23 para 6. 62   See eg Agarwal, ‘Who Sows, Who Reaps?’ above n 50 at 561 and at 559.



Erasing the Public/Private Distinction  159 have never been allowed to be or to have; at the same time the private is everything women have been equated with and defined in terms of men’s ability to have.63

MacKinnon’s insight foregrounds the loss or denial of the value of the private through the denial of rights to it. It is this loss and denial that is illustrated by the denial of the right to housing experienced through women’s essential homelessness. But it is important to make clear that it is not the private itself that is without value. Rather, it is that the private is devalued when rights are absent. It is this insight that the fact of women’s essential homelessness so clearly illustrates. Yet we can examine a third manifestation of homelessness in which the private – the space of home – and the public – the space beyond – are simultaneously devalued when the fundamental characteristics that give those spaces their relevance are removed or denied. This can be seen in the erasure of the public/ private distinction that can come to govern the lives of domestic workers. V.  ERASING THE PUBLIC/PRIVATE DISTINCTION AND THE HIDDEN HOMELESSNESS OF DOMESTIC WORKERS

The previous sections illustrate the following. First, street homelessness shows the need for the freedom, security and safety of a private space, in which to exist and from which to ground our social subjectivity and legal personhood. The private space of the house is, thus, necessary to the realisation of primal human needs and ‘high-minded’ civic freedoms. Secondly, women’s essential homelessness demonstrates the need for rights in and to that space in order to enjoy that freedom and security rather than to suffer privation and deprivation in it. Women’s essential homelessness also suggests that in order for this space of safety and security to function as such, one must be able to come out of it and have a life beyond it. If the first manifestation of homelessness, that of the street and pavement dweller, illustrates the need for the private space of secure and adequate housing, the second, the essential homelessness of women, foregrounds the needs for rights to a dwelling. Here, I examine a third manifestation of homelessness. This third manifestation illuminates the need for the specific privacy represented by home as a locus of control and authority over space and privacy. The analysis in this section is based on the living situation of domestic workers who both work and live in the employer’s home. The domestic worker may have neither the rights accorded by full access to the private space, nor the rights afforded to those in the public sphere. Her position, located in both public and private, but not fully of either, ‘troubles’ the boundaries between the public and

63   C MacKinnon, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence’ in AC Hutchinson (ed), Critical Legal Studies (Totowa, Rowman and Littlefield, 1989) 70.

160  Privacy private,64 and in doing so, illuminates the power of the conceptual distinction to constrain the realisation of rights to either in practice. For the domestic worker, who lives and works on a full-time basis in the home of her employer, the boundaries between the public and private often fail to protect her fundamental freedoms. 65 Rather, they operate to construct a form of homelessness in which there is both no retreat from the pressures of work and public into the safety and relaxation of home, nor yet is there the unfettered ability to move beyond this sphere to enjoy the rights and privileges of social, economic and political citizenship. Like the analysis of women’s essential homelessness undertaken above, the critique of the denials of public and private that attend the lives of domestic workers is not to be taken to characterise all domestic workers as rightless slaves living lives of drudgery and deprivation under the heels of their employers. For many domestic workers, employment is fulfilling and empowering, opening up new possibilities and making space for new identities and relationships, both economic and personal. However, paying attention to this form of homelessness provides two important insights. First, it allows a further interrogation of the role of privacy in housing, and housing in privacy, and further of how a right to housing might clarify and overcome some of the conundrums apparently facing the domestic worker and her enjoyment of human rights. And, secondly, it illustrates how a right to housing might be used to protect that added value to human life represented by the home. For domestic workers who work and live in their employers’ homes, there is no home to retreat to from the public nature of working life. ‘Generous’ contracts of employment may stipulate that a domestic worker be given both adequate private space and private time, but the space remains the private space of the employer, and given its status as a home, is protected in the employer’s favour as the paradigm location of private life. As such, the domestic worker, for whom the space is primarily public – the workplace – and only incidentally the home, can be denied the important protections of her own private space in fact. The actual employment conditions of domestic workers across the globe indicate that there is no guarantee of a generous contractual relationship between the domestic and her employer. Brenda Yeoh and Shirlena Huang’s survey of domestic workers in Singapore found that more than one in four was given no days off at all,66 and that more than half the domestic workers’ days off 64   J Fudge, ‘Global Care Chains, Employment Agencies, and the Conundrum of Jurisdiction: Decent Work for Domestic Workers in Canada’ (2011) 23 Canadian Journal of Women and the Law 235, 242. 65   This situation of homelessness may be also of relevance for those who live in ‘tied accommodation’ such as pub landlords, religious ministers or military personnel. See eg JLS v Spain (App no 41917/98), Admissibility Decision, 27 April 1999, ECHR 1999-V. However, it is in respect of domestic workers who live in others’ homes that the issue is most clearly raised. 66  B Yeoh and S Huang, ‘Negotiating Public Space: Strategies and Styles of Migrant Female Domestic Workers in Singapore’ (1998) 35 Urban Studies 583, 588.



Erasing the Public/Private Distinction  161

were governed not by the terms of their employment contract but by the employer’s ‘whim’.67 Even so, ‘rest days’ may not entitle the worker to leave the employer’s home.68 Human Rights Watch has documented incidences of forced confinement across a wide sample of states, with domestic workers locked inside and prevented from using the telephone or speaking to neighbours.69 Within the employer’s home, there may be no private space set aside for the domestic worker to sleep, eat or exercise religious freedoms.70 At the same time, domestic workers are often not governed by the legal provisions that protect employees who work outside the home.71 Even when these labour protections formally apply, domestic workers are often denied their protections in practice.72 As Hila Shamir notes, the exclusion of the domestic worker from the protections of the market appears as exceptionalism, but can be understood as routine when the relationship is understood as one governed by the private relations of a household.73 And indeed, many domestic workers have an intimate knowledge of or place within the employer family, which suggests a relationship of affection and familial bonds.74 Yet the worker is not part of the family. Rather, her place in the home is based on a ‘market-based service contract’ that governs cash transactions between strangers.75 The domestic worker is in both the public and the private, but not fully of either. Thus, as Judy Fudge writes, when domestic work is performed for wages in the household, it ‘troubles’ those very boundaries of public and private that we use to structure, and rely on to shape, our social relations and perceptions, not to mention our rights.76   Ibid 589.  Ibid.   Human Rights Watch, Swept Under the Rug: Abuses Against Domestic Workers Around the World (Human Rights Watch, 2006) vol 18, no 7(c), which documents practices of forced confinement in states including El Salvador, Guatemala, Indonesia, Malaysia, Morocco, the Philippines, Saudi Arabia, Singapore, Sri Lanka, Togo, United Arab Emirates and United States. See also Human Rights Watch, Slow Reform: Protection of Migrant Domestic Workers in Asia and the Middle East (Human Rights Watch, 2010) 8–11 and Human Rights Watch, Maid to Order: Ending Abuses Against Migrant Domestic Workers in Singapore (Human Rights Watch, 2005) vol 17, no 10(c), 42–48. 70   Human Rights Watch, Maid to Order above n 69 at 72–73. 71   See Yeoh and Huang, ‘Negotiating Public Space’ above n 66 (Singapore); Shamir, ‘Between Home and Work’ above n 43 (United States); P-C Lan, ‘Negotiating Social Boundaries and Private Zones: the Micropolitics of Employing Migrant Domestic Workers’ (2003) 50 Social Problems 525 (Taiwan); Human Rights Watch, Maid to Order (Singapore) above n 69 at 24–29. 72   Shamir, ‘Between Home and Work’ above n 43 at 448, O Lobel ‘Class and Care: the Roles of Private Intermediaries in the In-Home Care Industry in the United States and Israel’ (2001) 24 Harvard Women’s Law Journal 89, 93–94 and 128–29; Human Rights Watch, Maid to Order above n 69 at 11. 73   Shamir, ‘Between Home and Work’ above n 43 at 455. 74  MA Chen, ‘Recognizing Domestic Workers, Regulating Domestic Work: Conceptual, Measurement and Regulatory Challenges’ (2011) 23 Canadian Journal of Women and the Law 167, 172. 75   G Mundlak and H Shamir, ‘Bringing Together or Drifting Apart? Targeting Care Work as “Work Like No Other” ’ (2011) 23 Canadian Journal of Women and the Law 289, 295. 76   Fudge, ‘Global Care Chains, Employment Agencies, and the Conundrum of Jurisdiction’ above n 64 at 242. 67 68 69

162  Privacy Of course, troubling the boundaries between the public and the private has been part of the exercise of this chapter. But the way that the domestic worker’s position has ‘troubled’ this distinction, so far, has resulted not in a re-evaluation of the distinction, or a refined commitment to what we wish it to protect, but in the general failure to provide either the rights or the protections of the public or the private to the domestic worker. The reasons for this failure can themselves be found in the public private distinction and its conceptual and practical operation, specifically with regards to the economy and its position in this schematic. If the home is the paradigm of the private, and the realm of civic politics is the paradigm of the public, the economy falls between. Yet, rather than upset the commitment to a dichotomy, the economy simply becomes a new reference point: private in its opposition to state interference, but public in contrast to the labour-free respite of home.77 It is this new reference point that explains the exceptional position of the domestic worker. Either way she turns, she is confronted with both the public and the private set out against the realisation of her rights and freedoms. On the one hand, she cannot assert that her work is public in its nature as employment (and thus gain the rights and protections due to workers) because it occurs in the private space of the home, a zone theoretically placed outside the economy. Attempts to bring domestic work within the public sphere are not so much practically difficult but conceptually so. They raise a profound ‘commodification anxiety’78 which is itself tied up with gendered roles and places within the home, and the way these roles underpin current economic, political and social structures.79 This is a question further investigated in the following chapter. On the other hand, the nature of the economy as both public and private means that when the migrant domestic worker asserts that the workplace is her home (and thus claims the right to exercise the freedoms and control that are associated with the home) she is countered with the response that the home is private vis-à-vis the employer. And it is often, moreover, private for her employer as owner – a powerful trump card as we will see again in the next chapter. Added to this theoretical situation are those ‘power axes’ of which Fudge writes. In addition to the power of the state, the public/private distinction is based on hierarchies between the employer and the domestic worker. The domestic worker, whose employment position is one fraught with a history of class inequality, remains one whose privacy is less valuable. This is compounded by the protections and power that come with ownership and must be contrasted with the employer’s sufferance of the employee’s presence on her private property as a condition of a contractual arrangement. As Lan argues, ‘[a]lthough the   Gavison, ‘Feminism and the Public/Private Distinction’ above n 3 at 21.   Mundlak and Shamir, ‘Bringing Together or Drifting Apart?’ above n 75 at 295. 79   N Neetha and R Palriwala, ‘The Absence of State Law: Domestic Workers in India’ (2011) 23 Canadian Journal of Women and the Law 97, 119. 77 78



Erasing the Public/Private Distinction  163

protection of privacy concerns both employers and workers, privacy is nevertheless a right unequally distributed along class lines’.80 A second layer of analysis overlays the relationship of the migrant domestic worker to the space she inhabits and in which she works. When the domestic worker is a migrant, outside her national state and beyond the protections afforded by formal citizenship, she suffers from a ‘double displacement’.81 Adelle Blackett notes how ‘law at once jealously guards the public borders of the state through immigration laws, while reifying the private borders of the home’.82 In the instances where domestic workers are migrants, they form part of complex ‘care chains’,83 through which households ‘transfer their caregiving tasks across borders’ through networks based on ‘power axes’ and the interventions of a multitude of government, social and market agents.84 For many of these individuals, the ability to remain in a state is inherently tied to an employment relationship.85 And our analysis of street homelessness above has already illustrated the close connection between the ability to exist legally, and to exist at all. Thus, in this way, the experience of migrant domestic workers echoes Waldron’s recognition of the denial of the right to exist which haunts the homelessness of the street dweller. At the same time, it illustrates the ways in which homelessness mirrors the condition of statelessness. As Yeoh and Huang write, migrant domestic workers take the position of the alien, who has: no part to play in public life and therefore no place in the public arena belonging to the citizenry. The foreign domestic worker as a foreigner and a domestic occupies an untenable space – neither incorporated as an employee in the public sphere with social and legal rights under the jurisdiction of the state, nor a member of the familial where relations are governed by non-market affinities.86

What the situation of the migrant domestic worker and her condition of homelessness reveals is twofold. First, it illustrates the continuing conceptual power of the public/private dichotomy and the way rights are arrayed across its spectrum. This may cause us to question the value of such a dichotomy itself, a point I return to shortly. Secondly it shows that there is an aspect of the relationship to private space that is not captured simply by rights to any secure and   Lan, ‘Negotiating Social Boundaries and Private Zones’ above n 71 at 528.   J Sweeney and L Fox O’Mahony, ‘The Displacement and Dispossession of Asylum Seekers: Recalibrating the Legal Perspective’ in L Fox O’Mahony and J Sweeney (eds), The Idea of Home in Law: Displacement and Dispossession (Farnham, Ashgate, 2011) 104–06. 82   A Blackett, ‘Promoting Domestic Workers’ Human Dignity Through Specific Regulation’ in A Fauve-Chamoux (ed), Domestic Service and the Formation of European Identity: Understanding the Globalization of Domestic Work, 16–21st Century (Bern, Peter Land, 2005) 247–48. 83   Hochschild, ‘The Nanny Chain’ above n 44; see also N Yeates, Globalizing Care Economies: Explorations in Global Care Chains (Houndsmills, Palgrave Macmillan, 2009). 84  Fudge, ‘Global Care Chains, Employment Agencies, and the Conundrum of Jurisdiction’ above n 64 at 240. 85   See eg Canada’s Live-In Caregiver Program, detailed in ibid 245–49. 86   Yeoh and Huang, ‘Negotiating Public Space’ above n 66 at 588. 80 81

164  Privacy materially adequate private space. It shows that we may need to bring the idea of home into justifications for a right to housing. Douglas Porteous and Sandra Smith identify two aspects of home. The first is outward looking: ‘home as centre – a place of refuge, freedom, shelter, and secur­ ity’. The second is inward looking: ‘home as identity – with themes of family, friends and community, attachment, rootedness, memory, and nostalgia’.87 There are important intangible interests inherent within the notion of home, but it is these subtle and subjective qualities that make the home difficult to subject to the objective proofs required by law and rights.88 Yet turning an analytical eye on the living situation of the migrant domestic worker reveals that while what we term homelessness for the street or pavement dweller may in fact be better equated to houselessness, for the migrant domestic worker, homelessness is the more accurate term. This is because the conflation of the public and private spheres, coupled with the loss of the fundamental protections that are supposed to attach to each, means that for the migrant domestic worker very often both the ‘inward looking’ and ‘outward looking’ aspects of home are not present. Inserting attention to the home into the right to housing has the potential to ensure that such situations of homelessness are not marginalised or denied because of the presence of a roof and walls. Taking cognisance of home in the right to housing also allows us to protect those interests normally tied up with ownership for those who may never own real property. Home implies autonomy and control over space, and the actions performed within it, whether these actions are ‘profound’ ones like religious devotions, or ‘prosaic’ ones like preferred food preparation. It concerns the ability to make a home one’s own, to invest one’s personality and identity in it, and to develop ‘subtle bonds of feeling . . . with dwellings past and present’.89 This might seem like a Hegelian justification for property ownership,90 but we need not tie identity to ownership, an argument I make more fully in the next chapter. Crucial elements of control and identity tied up with the home can be protected in other ways. Specifically, we can protect these elements within the right to housing. The experience of the domestic worker is one of homelessness. Like the visible homelessness of the street or pavement dweller, and the hidden homelessness of women, it is one that is based on and perpetuated by the dichotomy between the public and private spheres of life. Specifically, this sort of homelessness illustrates the consequences for those who are in the private sphere and simultaneously in the public sphere, but not fully of either, such that they lack the protections we   Porteous and Smith, Domicide, above n 10 at 61.   L Fox, ‘The Meaning of Home: a Chimerical Concept or a Legal Challenge?’ (2002) 29 Journal of Law and Society 580, 581. See also L Fox, Conceptualising Home: Theories, Law and Policies (Oxford, Hart Publishing, 2006) 4. 89   C Cooper Marcus, House as a Mirror of Self: Exploring the Deeper Meaning of Home (Berwick, Nicolas-Hays, 2006) 1. 90   G Hegel, Elements of the Philosophy of Right (A Wood (ed), HB Nisbet (trans), Cambridge, Cambridge University Press, 1991) 76–77. See further Chapter 7. 87 88



Conclusion  165

consider each to provide. Moreover, this form of homelessness is a denial of human rights that foregrounds the importance of the home as arena of control and authority, and its centrality to our understandings of a full human life. These three manifestations of homelessness illustrate that homelessness is not so much a question of poverty or the denial of material goods, but a question of both configurations of social relations and the boundaries maintained by these relations between the individual and state, and between differently situated individuals. The role of the public/private dichotomy in these configurations must now be tackled head on. VI.  CONCLUSION: HOMELESSNESS, RIGHTLESSNESS AND THE RIGHT TO HOUSING AS SOCIAL BELONGING

The analysis in this chapter shows that homelessness cannot be understood solely as the antithesis of home. It is not a ‘ “totalizing” condition’ but occurs across different points on the axes of space and rights, and manifests in strikingly different ways.91 However, all three manifestations of homelessness powerfully illustrate Waldron’s notion of the important ‘complementarity’ of the public and private.92 The first, the situation of the street person, is a profound deprivation of privacy that operates through the denial of the private space of the house. The second, the ‘essential homelessness’ of women, is a situation of lack of rights to the home in which one lives. Coupled with an enforced privacy and denial of life beyond the home, it results in a devalued, as well as rightless, privacy. Finally, our third manifestation of homelessness occurs when the complement of the public and private is lost not through the denial of one or the other, but by the denial of crucial aspects of both. This occurs for those, like live-in domestic workers, whose homes are their employment, and whose homes are their employers’ homes. Homelessness illuminates that meaningful existence and inclusion in society is premised on the need for both the public and private space. More importantly, these conditions of homelessness illustrate the need for the goods and rights that are protected through the existence of the public and private space: privacy is not enough unless it is connected to the rights that make it meaningful. What these instances of homelessness indicate most strikingly is that a meaningful complementarity of public and private life is necessary to a full human flourishing. The recognition of the importance of public life assumes and is made valuable by the ability of the individual to retreat into a private space where he or she is protected from the public gaze. At the same time, the private space is rendered a prison, rather than a retreat, when the individual cannot 91   J Moore, ‘Polarity or Integration? Towards a Fuller Understanding of Home and Homelessness’ (2007) 24 Journal of Architectural and Planning Research 143, 144. 92   Waldron, ‘Homelessness and the Issue of Freedom’ above n 18.

166  Privacy enter the public realm of social membership and take part in society. In such cases, the private space can be a space of profound disempowerment. What emerges most clearly from this chapter is that the private sphere has value only in the context of a public sphere, and vice versa. This chapter shows how the home figures strongly in the conception of social organisation premised on the complementarity of the public and private spheres. The home and house is the place through which the complementarity of the public and private takes on meaning, and where both the public and the private gain their value. It is a physical manifestation and instrument of the value of the private. It is always located in (and as) the private sphere, and represents the paradigm of the private. However, housing also has a public nature. The social and cultural aspects of home are important to the value of housing, as housing is socially recognised and protected as the location to which the citizen and individual can retreat from the pressures of public life. Thus the fact of being housed has a strangely dichotomous nature. Housing sits at the core of the private, and provides the physical space in which the private life can be enjoyed. Without a private area to which the individual can turn to satisfy the material and cultural needs of human life, the individual is profoundly deprived. But the private nature of the home and house loses its worth and meaning without the existence and availability of a public life beyond it. Through this dual character, housing, and questions of rights to housing, emerge as questions of belonging and of citizenship. In the world as it is, such a space is not only a basic human need but a condition of freedom, autonomy, privacy and in sum, of social membership and belonging. Yet the analysis in this chapter should also prompt us to question the world as it is and ask what makes a right to private space as retreat so fundamental. It is possible to imagine worlds in which no such complementarity is needed because the public sphere is not the source of the ‘fragmentation, degradation, and powerlessness’ that confront people in their public lives.93 We can imagine worlds where fulfilment is found in public space and in community with others such that we do not need the private space of house and home. For most of us imagining such a world is a utopian (or dystopian) exercise. However, we should at least question how a public sphere that is alienating and to be feared is constructed and maintained, even through the public/private distinction itself. The lives of the visible homeless, who make their homes on the streets and pavements, illustrate this denial of rights to belonging and membership. The visibility of their private lives results in a lesser citizenship. At the same time, a life lived only in the private sphere is also a profound denial of social membership. The domestic worker who is unable to leave the private realm and take on 93  SJ Schnably, ‘Property and Pragmatism: a Critique of Radin’s Theory of Property and Personhood’ (1993) 45 Stanford Law Review 349, 372. Moran investigates this question in the context of gay and lesbian ideas of home. See L Moran, ‘The Poetics of Safety: Lesbians, Gay Men, and Home’ in A Crawford (ed), Crime, Insecurity, Safety in the New Governance (Cullompton, Willans Publishing, 2001).



Conclusion  167

the rights and benefits of life as a citizen in the public realm also experiences a condition of rightlessness. For women who endure a forced association with the home, and yet have no rights in or to the home, the condition of essential homelessness results in a denial of the rights of the public citizen, and the denial of a right to retreat into a meaningful and genuine privacy. Yet the visibility of the homeless can be subversive and provide a form of protest (albeit an unsought role) against the marginalisation, violation and deprivations experienced by those who do not enjoy the rights and benefits of housing. The very presence of the homeless who sleep and perform their daily activities in public renders the personal political. As Bayat notes, ‘the street is the public space par excellence’ and despite state attempts to control public space, ‘street life’ is often irrepressible, refusing to be silenced.94 The presence of the homeless street person is a political statement. Such visibility itself is a critique of the denial of rights, membership and full citizenship attendant on the lack of housing experienced. Likewise, definitions of homelessness provide space for a critique of the status quo within the public/private dichotomy. The designation of an individual as homeless is not merely an empirical question. As Peter Rossi and James Wright note, it represents a social statement about ‘what should constitute the floor of housing adequacy below which no member of society should be permitted to fall’.95 Thus, any definition of homelessness includes a societal agreement about what constitutes an adequate living space and its essential characteristics. It is for this reason that the definition as homeless of women who experience no rights to the home, and of domestic workers who experience only the public, even within the private space, as homeless provides an important critique of our existing understandings of privacy, rights and social membership. The definition of an individual as homeless can serve as a demand to be counted, even for those who remain otherwise invisible. The analysis set out in this chapter shows that it is not the existence of the private sphere itself that is necessarily problematic. In fact, private space and life are immensely important to individual flourishing and social membership. Rather, it is the use and perpetuation of the private sphere in ways that exclude some from accessing it at all, as in the case of the street and pavement dweller, or that deny to others the ability to leave the private sphere and live outside it. It is through the denial of the public space and the forced association with the private that the home becomes a site of oppression, inequality and discrimination. Likewise, it is through the denial of the private space that life in the public sphere becomes degrading and oppressive. Making housing central to the privacy inquiry illustrates that place has a vital role in the enjoyment of rights. The denial of a place in which to experience and 94   A Bayat, ‘Un-Civil Society: the Politics of the “Informal People” ’ (1997) 18 Third World Quarterly 53, 66. 95   Rossi and Wright, ‘The Ghetto Underclass’ above n 12 at 134.

168  Privacy enjoy the rights of social membership and of privacy is a denial of the full humanity of the person, and a denial of social belonging, even of citizenship. The right to housing is one way in which to focus on the spatial aspect of the enjoyment of rights which is denied when the complementarity of the public and private spheres breaks down. The right straddles the line between issues of privacy, the public nature of rights, and the role of housing in social belonging and citizenship. Certainly, as this chapter has illustrated, focusing on the right to housing and the corollary condition of homelessness shows that placing housing at the centre of the inquiry illuminates the value and role of housing in the realisation and enjoyment of full human personhood. It also shows that current critiques and theories of privacy and its benefits and lacks are immensely important in the realisation of meaningful human rights, but that they can obscure or marginalise issues which are put clearly in focus by placing housing as a private space at the centre of the investigation, rather than treating housing as an incident of a right to privacy. The right to housing can also refocus the investigation on the role of the state in ensuring privacy. The right to housing generally appears to assume a strong state role, one that is commonly rejected in understandings of the right to privacy, where the state is understood as the coercive power from which privacy is to be guaranteed. The manifestations of hidden and visible homelessness illustrate, as Marks and Clapham have noted more generally, that the problems of privacy may be generated as much by an under-intrusive state, one that turns a blind eye, as by an over-intrusive one.96 These are fundamental issues of the nature of human rights, social membership and the relationship between the individual and the state. As such, the conceptual issues caught up in housing and its relationship with human rights protection present a unique opportunity to consider some of the most vexed questions in human rights law. Answering these questions should not be seen merely as an opportunity, however. The legal interpretations analysed in Part I indicate that answering, or at least investigating, these issues is necessary to understand why we might seek to protect the right to housing as a human right. Without knowing why, it is difficult to know how to protect the right, and what to protect. The question of identity, its relationship to the space of housing and home, and its connection to the enjoyment and realisation of rights offers further insights into these questions, and is the subject of the next chapter.

  Marks and Clapham, International Human Rights Lexicon above n 15 at 262.

96

7 Identity I. INTRODUCTION

I

F IDENTITY IS understood as a sense of individual and interpersonal selfhood, what connection does it have to material things? This chapter asks this question with specific reference to the house and home, and its connection to the concept of identity. Understanding how housing and identity connect illustrates that while identity is personally experienced, it is also socially constructed. Moreover, the way identity is recognised, socially and legally, is often mediated through relationships with the house and home, both as a physical, material thing, and as an ideological construct. From an anthropological and sociological perspective, the self is constituted through ‘socio-cultural meaning, mediated, in part, through objects’ imbued with treasured cultural meaning’.1 From this viewpoint, the home comes to embody identity through the cultural meanings given to the material spaces in which we live. As such, housing plays a striking role in the creation and recognition of identity. However, as this chapter also illustrates, the role of housing and home in identity is not always positive. Housing policies and the ideological commitment to certain forms of social arrangements organised around the home can be used to stifle, even erase, identities. Thus, housing and housing policies have not only a creative, but also destructive, relationship with identity. The personal or psychological, and interpersonal or social, aspects of housing and its relationship to identity highlight the intangible and uncommodifiable aspects of housing, most importantly the concept of home. As the homelessness of the domestic worker analysed in Chapter 6 illustrated, while houses and homes are closely linked, a home may not be a house, and not every house will be a home. Jerome Tognoli notes that with regard to housing, the emphasis is on the spatial and physical aspects of a dwelling, while the concept of home accents ‘social, cognitive, cultural, and behavioral issues that emphasize home as security, comfort, and as a symbol of place and departure and return’.2 Psychologists link the home with the personal development of the identity, noting how the home may come to symbolise the self, and in fact, serve 1   JD Jones, ‘Property as Personhood Revisited’ (2011) 1 Wake Forest Journal of Law and Policy 93, 128. 2  J Tognoli, ‘Residential Environments’ in D Stokols and I Altman (eds), Handbook of Environmental Psychology (New York, John Wiley & Sons, 1987) vol I, 655–56.

170  Identity as a material manifestation of a person’s identity. The home is thus central to the rootedness, continuity, security, social and family relationships, and cultural context that make up the self.3 The house as the locus of home is generally presumed and reinforced by cultural understanding, policy and law, including through the public/private distinction, as is made evident in the previous chapter. Moreover, laws are often based on the assumption that the protection of the social, relational and psychological aspects of home are best met through the more ‘objective’ protection of housing, a concept more readily understood in and by the law.4 The commitment is to a negative regulation: regulation that, in theory, does not touch the ‘internal’ sphere of home itself. William Pitt neatly summarised this legal assumption when he noted that, whatever the conditions on the inside, ‘the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement’.5 Such legal positions reinforce the idea that law regulates the public, and that the home falls beyond that regulation. The previous chapter illustrated how enduring this idea is, despite the numerous exceptions to it in fact. This chapter will investigate further how these rules and exceptions are structured around, and impact on, questions of identity. Identity also provides a lens that illuminates the relationship between the physical aspects of a house as financial asset, whether of the individual, or in aggregate, of the nation,6 and the more personal and ‘cognitive’ concept of home, in which the physical features of the dwelling are de-emphasised, while social and cultural aspects are accentuated. Following on from the conceptual analysis of privacy and housing in chapter 6, in this chapter I use the concept of identity as a lens through which to examine the importance of housing. Looking at justifications for a right to housing through the issue of privacy highlighted the key spatial dimension of housing: as a physical structure the house provides a concrete location for the enjoyment (or, at times, imposition) of privacy. This chapter concentrates on how the physical structure of the house is part of a social, cultural and economic envir­ onment. It reveals that a meaningful concept of housing includes not only the dwelling but its location and relation to other dwellings, livelihood and educational opportunities, and social, political or cultural ties. The sum of these external attributes may be of greater importance than the attributes of 3  Ibid 657–65; see also C Jung, Memories, Dreams, Reflections (New York, Vintage, 1963); C Cooper Marcus, House as a Mirror of Self: Exploring the Deeper Meaning of Home (Berwick, Nicolas Hays, 2006). 4   L Fox, ‘The Meaning of Home: a Chimerical Concept or a Legal Challenge?’ (2002) 29 Journal of Law and Society 580. 5   W Pitt, Earl of Chatham, ‘Speech on the Excise Bill (1763)’ in J Bartlett, Familiar Quotations, 16th edn (Boston, Little Brown and Company, 1992) 312. 6   In the aggregate, the ‘housing stock’ of a nation (even when privately owned) is considered a public policy issue. The availability, cost and quality of housing are considered indicators of broader economic and social welfare within the state. See P Kenna, Housing Law, Rights and Policy (Dublin, Clarus Press, 2011) 3–11.



Introduction  171

the physical dwelling itself.7 Moreover, the chapter recognises that housing is a question of social and political priorities, and that the shape of housing policy has a significant impact on how housing either promotes or marginalises identities. Like privacy, identity is an immensely broad concept, used across disciplines in ways that are specific but at times divergent. Here, I invoke identity as ‘a definition, an interpretation of the self’,8 in which is invested aspects of selfknowledge, personal potential and fulfilment, and the relationship between the individual and society.9 The role of housing and home in the production and maintenance of identity has been investigated in a broad range of disciplines, which recognise that a home is ‘a spatial, psychosocial centre in which at least a portion of an individual’s or group’s identity resides’.10 The home can be seen as a ‘pivotal point’ of human activity, which implies ‘rootedness, territoriality, [and] attachment to place’.11 I draw on this literature to bring the debate onto the legal terrain, where the link between identity and housing has seldom been addressed. In the first part of the chapter, I use two specific examples of how housing can foster or promote identities. I investigate how housing can play a part in the constitution of personhood, and take on a role in the construction of community, family and even nation. First, I consider theories of property and personhood. These theories, which represent the law’s most explicit consideration of the link between identity and housing, argue that ownership of personal property, including the house or home, may be constitutive of personhood itself. I consider how these theories may offer a justification for a right to housing. Moreover, I consider how a right to housing might overcome some of the limitations of these theories, enabling a vision of personhood that encompasses those whose identities have been marginalised in and through property law. The second example of how housing and housing policies can promote identity draws on insights from communitarianism. In this section, I examine how housing can be used to promote the social identities of individuals, groups, and can even be invoked to build national identity. I consider how the right to housing can encompass the aim of bringing marginalised and excluded people into community and society, while, at the same time, a right to housing can be 7  J Kemeny, Housing and Social Theory (London, Routledge, 1992) 159. See also H Ross, ‘Lifescape and Lived Experience’ in P Read (ed), Settlement: a History of Australian Indigenous Housing (Canberra, Aboriginal Studies Press, 2000) noting that housing ‘can be interpreted very widely to encompass all aspects of spatial existence’, including ‘the way shelter is arranged in space – settlement patterns – and the ways access to land and the administration of that access’ are affected, at 3. 8   RF Baumeister, ‘The Nature and Structure of the Self: an Overview’ in R Baumeister (ed), The Self in Social Psychology (Philadelphia, Psychology Press, 1999) 4. 9  Ibid. 10   DJ Porteous and SE Smith, Domicide: the Global Destruction of Home (Montreal, McGillQueen’s University Press, 2001) 61. 11   Tognoli, ‘Residential Environments’ above n 2 at 658.

172  Identity used to counter some of the more exclusive tendencies of communitarian thinking. But housing can also constrain and erase identities. I examine this phenomenon in the second part of this chapter where I look at two instances where housing and identity connect with negative consequences. The first instance is one that specifically affects women’s identities. This is the idealisation of the family home. I analyse how the form and nature of housing reinforced by and through the idealisation of the family has a concrete impact on the identities of women, and their potential social citizenship within the state. I argue that a right to housing offers the radical potential to unravel women’s identities from the home. This example serves to illustrate how the physical form of housing – and an ideological commitment to it – can constrain the imagining of new identities. The analysis here builds on the picture of privacy and rights in chapter 6, illustrating that privacy and identity are overlapping concepts, existing in a complex relationship of possibility and limitation. Secondly, housing and housing policies can be used in an attempt to eliminate existing identities. The role of housing in the erasure of identity is particularly evident where housing policies and laws have been used as tools of acculturation and assimilation of indigenous groups. In these situations, forms of housing and development of housing policy often have an explicitly coercive aim, and have resulted in invisibility, marginalisation and denial of indigenous ways of life. In considering the importance of a right to housing in this instance, the right’s clearest potential is in its ability to contemplate housing as a right that stretches beyond existing understandings of the house as a physical object, taking into account cultural factors of identity such as relationships to homeland, ancestry and group, in ways that current rights paradigms find difficult. Considering housing through the lens of identity thus offers further justifications for treating housing as a human right. It foregrounds the intangible and uncommodifiable aspects of the person’s relationship with the house and home, aspects which are often lost in debates on land ownership or property rights. Moreover, housing as an issue of identity places the person at the centre of the question. Such a position might be assumed, given the person-centred nature of human rights, yet the right to housing remains largely decontextualised as a matter of legal interpretation, as Part I has shown. The four examples, whether illustrating how housing can promote and constitute identity or how housing can constrain and erase identity, highlight the role housing plays in the inclusion, participation and, ultimately, social citizenship of the person.



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II.  PROMOTING IDENTITY: CONSTITUTING PERSONHOOD AND COMMUNITY THROUGH HOUSING

A.  Housing and Personhood The link between housing and personal identity remains largely implicit in legal analyses of the significance of home and housing. Nevertheless, an important and longstanding strand of property law theory has addressed the role of property in the creation or constitution of human personhood, and its role in the development of social and personal goods such as independence, entrepreneurship and civic participation.12 However, ‘not just any old property will do’ to foster this personal independence.13 The archetypal property is a private, self-sufficient domain.14 Historically equated with land ownership, the theoretical commitment is now to home ownership, perhaps most strongly protected in the United States. For example, in some US States, ‘homestead laws’ prohibit absolutely foreclosure by creditors on a home.15 Meanwhile, the ‘castle doctrine’ protects ‘self-help’ actions in defence of the home, when in other locations such actions would be crimes or torts.16 These regulations protect the home as a particular site of independence, identity and private action. Not all legal regimes provide extra protection for the home. Lorna Fox has critiqued the United Kingdom’s failure to provide protection for homes against the interests of creditors, for example.17 Nevertheless, home ownership is the preferred relationship between individuals and their homes in the United Kingdom, a fact illustrated by longstanding government policy,18 and the ‘castle doctrine’ can be traced back at least as far as the King’s Bench in Semayne’s Case of 1604.19 Historically, property ownership has played a determinative role in political citizenship.20 Yet while the determinative tie between property ownership and 12   See J Locke, ‘Two Treatises of Government: the Second Treatise of Government’ in P Laslett (ed), Locke: Two Treatises of Government (Cambridge, Cambridge University Press, 1988) 340 and C Rose, ‘Property as a Keystone Right?’ (1995) 71 Notre Dame Law Review 329, 358. 13   Rose, ‘Property as a Keystone Right?’ above n 12 at 345. 14   Ibid 345–46. 15   See Florida Constitution of 1969 as amended, Art X s 4 (amended Revision no 13 of 1998); and Constitution of Texas, 1876, Art 16 s 50 (as amended 6 November 2007). 16   DB Barros, ‘Home as a Legal Concept’ (2006) 46 Santa Clara Law Review 255, 260–69. See also T Katheder, ‘Criminal Law – Lovers and Other Strangers: Or, When is a House a Castle? Privilege of Non-Retreat in the Home Held Inapplicable to Legal Co-Occupants, State v Bobbitt’ (1983) 11 Florida State University Law Review 465. 17   L Fox, Conceptualising Home: Theories, Laws and Policies (Oxford, Hart Publishing, 2006) ch 1. 18   R Best, ‘Successes, Failures, and Prospects for Public Housing Policy in the United Kingdom’ (1996) 7 Housing Policy Debate 535. 19   Semayne’s Case (1604) 77 Eng Rep 194 (KB). 20   See eg A Keyssar, The Right to Vote: the Contested History of Democracy in the United States, rev edn (New York, Basic Books, 2009) 49–51.

174  Identity political citizenship has, on the whole, been broken, those without a fixed address are often denied the franchise in practice, reinforcing the tie between the ownership of property and the ownership of rights in general.21 Moreover, arguments that ownership of property, including specifically of one’s own home, enhance the social citizenship, civic virtue and potential for political participation of individuals, have a powerful persistence in legal and political thought.22 These ideas influence the identities of both the property owner and the propertyless. The deepest legal treatment of the link between property and identity stems from Margaret Radin’s theory of property as personhood. Here, she draws on a Hegelian concept of personhood, based on the constitution of the person through her relationship to things.23 The central argument is that some kinds of property are constitutive of personhood itself, in that they are ‘indispensable to someone’s being’.24 Importantly, the home is one of the archetypes that Radin selects to illustrate her theory. She notes that one ‘embodies or constitutes oneself there’ and that the home is ‘the scene of one’s history and future, one’s life and growth’. The home is important not just because of a social consensus that it is not to be interfered with, but because it is ‘affirmatively part of oneself’.25 This argument sees housing, at least insofar as it is a home, as an inherent and fundamental part of the human person’s identity. Radin acknowledges that the connection she makes between property and personhood is intuitive,26 which is perhaps appropriate, given that the ways in which this connection is maintained in legal decisions appear also to be intuitive.27 However, this opens Radin’s theory to challenge, particularly, for our purposes, on the basis that it is property ownership that grounds personhood. While Radin herself recognises that a home need not be owned to engender a sense of personhood,28 her theory of property and personhood has provided particular justification for the legal protection of owner occupied residential 21   D Rosendorf, ‘Homelessness and the Uses of Theory: an Analysis of Economic and Personality Theories of Property in the Context of Voting Rights and Squatting Rights’ (1990) University of Miami Law Review 701, 707 and 717–19. See also Chapter 6 and Chapter 8, IV.A. 22   Barros, ‘Home as a Legal Concept’ above n 16 at 300–5. See also H de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (London, Black Swan, 2001). 23  MJ Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957. For Radin’s reliance on the Hegelian concept of the person see 971–78. See also G Hegel, Philosophy of Right (TM Knox (trans), Oxford, Oxford University Press, 1967). 24   Radin, ‘Property and Personhood’ above n 23 at 987. 25   Ibid 992. See also at 1013. 26   Ibid 959. The empirical evidence for this intuitive assumption has been questioned. See S Stern, ‘Residential Protectionism and the Legal Mythology of Home’ (2009) 107 Michigan Law Review 1093, Pt II D; BD Barros, ‘Legal Questions for the Psychology of Home’ (2009) 83 Tulane Law Review 645; and J Blumenthal, ‘ “To be Human”: a Psychological Perspective on Property Law’ (2009) 83 Toulane Law Review 609. 27   See Radin, ‘Property and Personhood’ above n 23 at 991– 92 and 1004. See also SJ Schnably, ‘Property and Pragmatism: a Critique of Radin’s Theory of Property and Personhood’ (1993) 45 Stanford Law Review 349, 362. 28   Radin, ‘Property and Personhood’ above n 23 at 992–96.



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property at the expense of other, more marginal, associations between a person and home or house.29 That is, while understanding property as personhood can be seen to protect some of the cardinal interests of human being, it specifically privileges the interests and furthers the identities of property owners, marginalising the propertyless, and reinforcing their exclusion and lesser social status. This gives a ‘distinctly classist nature’ to the property and personhood debate.30 Home ownership is equated with the characteristics of dignity, autonomy and liberty, while those without owned homes are perceived as lacking such characteristics. Moreover, property as personhood may cast such individuals as incapable of developing dignity, autonomy or liberty other than through property ownership. To develop this line of reasoning to a logical end suggests that those without property are ‘effectively non-entities’, having no personhood.31 In addition the property as personhood theory can be seen as a profoundly commodified vision of the human person.32 It is one in which the propertyless experience a lesser identity by virtue of their inability to consume goods in the market. The marginalisation of identity that comes with the ‘failure’ to own one’s own house is reflected in the lesser social status afforded to the informal settler, the homeless street dweller or the occupant of social housing. At the same time, commodified visions of property as personhood rest on an assumption that ‘home ownership alone’ can wrest poor residents from the social ties inherent in kinship, patronage and criminal networks, and ‘recreate them as autonomous and virtuous citizens committed to all the trappings of suburban living’.33 Moreover, the effect of focusing on the house as consumer commodity has an effect on the social structure as a whole, not just on property regimes. Eric Hobsbawm notes that when market participation replaces political participation, the citizen gives way to the consumer.34 This gives the property and personhood theory a perverse effect: a principle intended to recognise the importance of the uncommodified or intangible aspects of property becomes one through which the ability to purchase comes to dominate the question of personhood itself. Moving beyond a personhood theory of property to a personhood theory tied to adequate housing, such as protected by a right to housing, could serve to protect the fundamental human interests of personhood without relying on the fact of ownership, thus reclaiming personhood from the grip of the propertied. Rather than property denoting personhood, personhood instead denotes the   Stern, ‘Residential Protectionism and the Legal Mythology of Home’ above n 26 at 1096.   Ibid 1130. 31   Rosendorf, ‘Homelessness and the Uses of Theory’ above n 21 at 710. Note, however, that personhood theorists resist the equation of property rights with human rights per se, maintaining that human rights are not conditioned on property rights. Ibid 711. 32   Schnably, ‘Property and Pragmatism’ above n 27 at 353 and 379–97. 33   S Robins, ‘Planning “Suburban Bliss” in Joe Slovo Park, Cape Town’ (2002) 72 Africa: Journal of the International African Institute 511, 513. 34   E Hobsbawm, Globalization, Democracy and Terror (London, Little Brown, 2007) 104. 29 30

176  Identity right to housing. This move could extend the attention to and protection of personhood interests, from the production of personal identity to the construction of social citizenship, to those – the marginalised tenant, the homeless individual or the informal dweller – whose identities have been excluded by virtue of their propertylessness. Moreover, the right to such adequate, safe and secure housing is vital. As Stephen Schnably notes, when we identify personhood with having a home, we ‘instinctively question the personhood of those who do not have homes’.35 At the individual level, this questioning is reflected in the mistrust with which the presence of the homeless person is greeted. At the systemic level, it underlies a whole structure of property and its relationship to the ‘exclusion and invisibil­ ity’36 of large parts of humanity. A personhood theory tied to a human right to housing could, in practice, challenge the exclusive function of the whole system of property. The right to housing can refocus the nature of the debate: while recognising an important link between personal identity and access to safe, secure and adequate housing, the emphasis remains on the non-commodifiable physical and psychological importance of the dwelling to personhood, rather than on the relationship of the property owner to property. Interestingly, Article XXIII of the American Declaration on the Rights and Duties of Man37 enshrines a personhood approach to property, stating that: Every person has the right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.

The Inter-American Commission and Court have, accordingly, explored and protected the links between land, property and dignity, especially for indigenous communities in the Americas,38 however, the role the home or housing itself plays in this relationship is, as yet, little considered. Of all the housing rights cases, the decisions of the Indian Supreme Court provide the most overt personhood justifications for the existence of a right to housing.39 In these cases, housing is explicitly tied to social citizenship and, in particular, seen as constitutive of full human personhood. For instance, the Chameli Singh40 case eloquently defends the right to housing and shelter as a right to ‘all the infrastructure necessary’ to enable an individual ‘to live and develop as a human being’.41 Moreover, Chameli Singh places the right to housing and shelter as one with a role to play in the development of a ‘cultured’ human life.42 Likewise, Ahmedabad Municipal Corporation v Nawab Khan   Schnably, ‘Property and Pragmatism’ above n 27 at 377 n 147.   Ibid 398. See also de Soto, The Mystery of Capital above note 22, but note that de Soto’s argument may not escape the problem of commodification identified by Hobsbawm. 37   American Declaration of the Rights and Duties of Man, OAS Res XXX (1949) 43 AJIL Supp 133. 38   See further Chapter 3, IV. 39   See further Ch 4, III. 40   Chameli Singh and others v State of Uttar Pradesh and others (1996) 2 SCC 549. 41   Ibid 555. 42   Ibid 556. 35 36



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Gulab Khan43 canvassed the issues of dignity, citizenship, equality, democratic participation and ‘free development of personality’44 that a right to housing or shelter can serve.45 While these cases supply examples, it is important to point out that the overall approach of the Indian jurisprudence on the right to housing and shelter is one that appears to reflect a personhood approach. In Kurra Subba Rao v District Collector, the Supreme Court noted that ‘in all stages of social development a man must have some property or capacity for acquiring property’ and that ‘there can be no individual liberty without a minimum of property’.46 Nevertheless, it is also a fact that recent Indian cases on housing, shelter and land rights have moved away from an approach based on social citizenship and personhood, and towards an increasingly neo-liberal economic version of the relationship of the person to the home: one more representative of the commodified vision of the person critiqued by Hobsbawm.47 Bringing the specific concerns of a right to housing to bear on theories of property and personhood serves to highlight the theory’s most important contribution, namely, that some sorts of personal property, especially a home, enhance personhood, such that a home may be a necessary prerequisite for social citizenship. At the same time, focusing on a right to housing and its connection to personhood and identity can overcome some of the limitations of the personhood theories understood in connection only to ownership. By looking at a right to housing, rather than an ability to own, we shift the focus of the theory from the market to the person, from the consumer to the citizen, highlighting the uncommodifiable and intangible aspects of housing, which are seldom addressed in the discourse on property law and property rights. Interestingly, housing rights and property rights appear not in inherent tension in this respect. Rather, a right to housing adds a further layer to the rationale for a theory of property and personhood. In addition, and, in accordance with the inclusive, emancipatory potential of human rights, it offers the opportunity to free property and personhood from the conservativism of existing ownership regimes and encompass the identities of those previously excluded from full personhood. By acknowledging that personhood denotes a right to housing as opposed to proposing that ownership denotes personhood, we do not just shift the goal posts from ownership to the fact of being housed, but provide a foundation for personhood that is radically more emancipatory. In the next section, I consider how a right to housing may offer new possibil­ ities for identity and the social inclusion of previously marginalised groups. To do so, I draw on the insights of communitarian theories to address how housing can foster social identity, bringing into community previously marginalised or excluded individuals and groups.   Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan and others AIR (1997) SC 152.   Ibid 159. 45   Ibid 157–59. 46   Kurra Subba Rao v District Collector 8 (1984) 3 APLJ 249. 47   See further Chapter 8. 43

44

178  Identity B.  Housing and the Constitution of Community Housing is embedded in our social structures. As a physical object, it has a pervasive influence on lifestyles, the arrangement of neighbourhoods, the attainment of social welfare and patterns of household consumption.48 What is socially, economically and culturally possible as a way of life in a suburban commuter district, linked to other suburban areas and the urban core by highways, is strikingly different from the way of life made possible in a high-density urban neighbourhood of multistorey flats, or in a district made up of agricultural holdings with widelyspaced individual or clan-based dwellings, for example. Accordingly, if community is a ‘comprehensive framework for social life’,49 housing can be seen, quite literally, as its physical manifestation. As such, housing has an important role to play in the way communities are constituted and, as a consequence, in the types of identities fostered and encouraged within those communities. Communitarian theorists, for whom belonging is a central value of morality,50 have long argued for political and legal theory to recognise the important social aspects of life. Communitarianism seeks to provide a moral order that takes account of the fact that individuals are always embedded or implicated in the social fabric,51 and that it is only within the warp and weft of this fabric that individuals can achieve full self-realisation;52 that is, it is within society that individual identity is realised. These theories provide glimpses into the relationship between identity, community and housing. Communitarianism allows us insights into the correlations between visions of the family, community and the state, which are linked through the ideas of home, household and housing, and gives us tools to consider how these visions offer justifications for a right to housing. At the same time, communitarianism foregrounds the social, relational and familial aspects of housing, which are important strands in any interpretation of the right to housing. Given the emphasis on the geographical ‘boundedness’ of communities and the social ties between and among individuals,53 communitarians might be expected to see houses and homes as places of special significance. Indeed, the nation is built outwards from the home, through neighbourhoods and communities.54 As 48   J Kemeny, ‘Comparative Housing and Welfare: Theorising the Relationship’ (2001) 16 Journal of the Built Environment 56; see also Kemeny, Housing and Social Theory above n 7 at 9. 49   P Selznick, ‘The Idea of a Communitarian Morality’ (1987) 75 California Law Review 445, 449 (emphasis omitted). 50   Ibid 454. 51   Ibid 450. 52   AJGM Sanders, ‘Towards Formulating the Tenets of a Communitarian Order’ (1992) 26 Legal Studies Forum 145, 147. 53   M Walzer, ‘The Communitarian Critique of Liberalism’ (1990) 18 Political Theory 6, 11. 54   B Bennett Woodhouse, ‘It All Depends on What You Mean by Home: Toward a Communitarian Theory of the Nontraditional Family’ (1996) Utah Law Review 569, 587.



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such the quality, quantity, form and nature of housing are a matter of concern beyond the individual. Nevertheless, communitarianism might be thought a difficult place in which to find justifications for a right to housing as a human right, given that commun­ itarian theories have a thorny relationship to rights. Communitarians often see human rights as overly egoistic, individualistic and divisive, acting to prevent the development of a sense of common responsibility and community based morality.55 If, as Walzer argues, rights manifest the ‘triumph’56 of our modern liberties, the expression of these liberties in geographical, social, marital and political mobilities also represents loss, dislocation and sadness.57 The individualistic nature of rights may have offered new possibilities but, at the same time, it can be charged with breaking down other networks though which we understand and fulfil ourselves. In order that we may re-embed ourselves in these networks, communitarianism prioritises the needs of the group, recognising that duties within society may override wants or claims of right.58 Some communitarians, like Sanders, who advocates a ‘progressive communitarianism’ that incorporates a respect for human rights, note that while the communitarian ideal remains the realisation of the common good, it must ‘respect the dignity of man as constituting the boundary of governmental action towards this ideal’.59 Moreover, such progressive communitarianism recognises that it may be the elements of rights seen as most foreign to liberalism, including those ‘second generation’ rights such as a right to housing, which offer most to a communitarian ethos.60 The Committee on Economic, Social and Cultural Rights’ (CESCR) interpretation of the right to housing clearly encompasses several aspects of housing that recognise this embeddedness in social relationships, the expression and protection of culture, and the importance of housing beyond the individual. This reflects the position of housing as an element of an adequate standard of living, both in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights: housing was not enshrined in the international human rights documents as a right to an isolated asset, but in recognition of its role in fostering an adequate life in society. This interpretation is reinforced by the CESCR’s approach to the right. Several of the seven elements of the right to housing in General Comment 4 explicitly protect communal, social and relational aspects of housing. Location is one such element. Here, the CESCR spells out that otherwise adequate housing will not be sufficient if it is constructed in a location where the inhabitants 55   C Taylor, ‘Conditions of an Unforced Consensus on Human Rights’ in O Savi  c´ (ed), The Politics of Human Rights (London, Verso, 1999) 106. See also K Marx, ‘On the “Jewish Question” ’ in RC Tucker (ed), The Marx-Engels Reader, 2nd edn (New York, Norton and Company, 1978). 56   Walzer, ‘The Communitarian Critique of Liberalism’ above n 53 at 17. 57   Ibid 12. 58   Selznick, ‘The Idea of a Communitarian Morality’ above n 49 at 454. 59   Sanders, ‘Towards Formulating the Tenets of a Communitarian Order’ above n 52 at 148. 60  Ibid.

180  Identity are isolated from their community ties, or are unable to access livelihood opportunities, health services or education.61 As Boyowa Chokor points out, at times, identity is tied to location in a particular house, over and above the location of that house. For example, in Africa, the home’s associations with ‘personal roots, existence and group lineage identity’ are particularly important aspects: the family house ‘is often seen as a geographical node which links the individual to an ancestry on arrival and departure from the world’. The home is a thus a ‘zone of family inheritance, a ring of shared meanings, established precepts and blood relationships’. Failure to recognise the importance of these cultural factors to identity has, Chokor explains, led many a ‘modern professional town planner’ to propose and undertake inappropriate schemes of neighbourhood revitalisation and ‘slum’ redevelopment, which risk ‘stiff and articulate opposition and eventually failure’.62 Thus, the CESCR’s requirement of cultural adequacy can be a crucial element of the right to housing when resettlement schemes, gentrification or ‘slum rehabilitation’ efforts threaten (or promise) to radically alter the form of dwellings, neighbourhoods and ultimately communities. Cultural adequacy is intended ‘to ensure that the cultural dimensions of housing are not sacrificed’ and to ‘enable the expression of cultural identity and diversity of housing’.63 These aspects of the CESCR’s reasoning highlight the otherwise little-discussed aspects of the right to housing as a cultural right. Themes of identity, location and cultural adequacy are beginning to be explored in the African Commission cases considering the right to housing. It is clear that the Commission sees the right to housing as having an important role beyond the protection of the individual. The three cases on the right to housing decided to date illustrate that the Commission sees housing as the site of economic, social and cultural life, family and personal identity, and even national development.64 That the communal, social and cultural importance of housing is explicitly protected under the African Charter is perhaps not surprising, given that the African Charter has strong communitarian elements, seen as reflecting traditional African values and norms.65 The concept of rights in the African Charter is communitarian in its focus on the individual as an embedded member of a society, and its attention to overlapping communities of family, neighbourhood or tribe, society and the state. 61   United Nations Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1)): Committee on Economic, Social and Cultural Rights General Comment 4 (1991) E/1992/23. See further Chapter 1. 62   BA Chokor, ‘The Meaning and Use of Housing: the Traditional Family’ in E Arias (ed), The Meaning and Use of Housing: International Perspectives, Approaches and their Applications (Aldershot, Avebury, 1993) 293. 63   General Comment 4, above n 61 at para 8(g). 64   See further Ch 3, III. 65   M Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: an Evaluation of the Language of Duties’ (1994) 35 Virginia Journal of International Law 339.



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The implied right to housing in African Commission decisions arises from a combination of the right to property in Article 14, the right to the highest attainable standard of physical and mental health under Article 16, and the right to protection of the family as the ‘natural unit and basis of society’ in Article 18(1),66 reflecting the communal aspects of housing. The Ogoni case recognises that with the destruction of the physical fabric of housing comes the destruction of the social fabric.67 This approach has been followed in the Endorois case, and in COHRE v Sudan, where forced evictions and displacements are recognised as having far-reaching implications for the social, economic and cultural lives of the evicted communities.68 For example, the Ogoni case refers to the right to housing as an individual right, but recognises that this right is exercised not only in the interest of the individual, but also in service of the family, household or commun­ ity.69 Meanwhile, the Commission identifies a collective right not to be subject to forced evictions.70 This reflects the communitarian recognition that ‘people are not fungible commodities capable of thriving as easily in one place as the next’, an issue that arises particularly in cases of forced relocations or evictions.71 Indian Supreme Court cases have also focused on the duty of the state to bring all citizens into meaningful participation in society through constitutional rights. In the Nawab Khan case, Ramaswamy J noted that social democracy requires that the dignity of the person is intertwined with liberty.72 The fulfilment of a ‘right to residence to the poor’73 underlies the full citizenship of India’s population. The judgment canvasses issues of socio-economic development for the poor, their exclusion, marginalisation, and even their vulnerability to exploitation by criminal gangs,74 noting the overall social purpose of the right to housing. As Ramaswamy J states, the right to housing should bring all poor Indians into society, to live as ‘an integrated social group’.75 Meanwhile, South Africa’s constitutional right to housing was explicitly based on the potential for the right to foster new identities, not only for individuals and groups, but for the state itself.76 The right to housing sought to 66   Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v Nigeria (Ogoni case), African Commission on Human and Peoples’ Rights, Comm no 155/96 (2002) para 60. 67  Ibid. 68   Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission of Human Rights, Comm no 276/03 (2010); Centre for Housing Rights and Evictions (COHRE) v Sudan, African Commission of Human Rights, Comm no 296/05 (29 July 2010). 69   Ogoni, above n 66 at para 61. 70   Ibid para 63. 71   RM Ackerman, ‘Mitigating Disaster: a Communitarian Response’ (2008) 9 Cardozo Journal of Conflict Resolution 283, 286. 72   Nawab Khan, above n 43 at 163. See further Ch 4, III. 73  Ibid. 74   Ibid 164. 75  Ibid. 76   A Sachs, ‘The Creation of South Africa’s Constitution’ (1997) 41 New York Law School Law Review 669, 671–72. See further Ch 4, II.

182  Identity overcome a history of Apartheid, in which segregated land and housing policies were used to control and police the rights and movements of black and ‘coloured’ South Africans. The land and housing system was one that underpinned the ‘economic, ideological, and demographic objectives’ of the white minority.77 The new housing policies implemented by the post-Apartheid government seek to rectify and overcome the resulting social and economic marginalisation.78 In a way that is reminiscent of the Indian Supreme Court rhetoric in the Chameli Singh case,79 the South African government’s housing policies are premised, at least in part, on the assumption that the provision of adequate housing will support the development of individuals as fully functioning national citizens, rather than as a marginalised underclass.80 As Sachs J put it in a footnote in Joe Slovo, the case is ‘as much about access to full moral citizenship as it is about access to adequate housing’.81 The role of the right to housing in creating new identities and including new people within the community of citizens of South Africa is receiving increased judicial attention. For example, most of the housing rights judgments to emerge from the South African Constitutional Court explicitly refer to the transformative aims of the post-Apartheid Constitution, and to its role in overcoming the ‘dark history’ of Apartheid and forced removals from land, which resulted in the homelessness of the majority of South Africans.82 As Sachs J notes in Joe Slovo, the case involved the issue of how to bring into society those citizens whose lives ‘have been spent in systematised insecurity on the fringes of organised society’.83 Likewise, the Grootboom judgment noted that it is not just important that adequate housing be made possible for more people, but that it be made possible for a broader cross-section of society, including the poorest and most marginalised.84 The important role housing plays beyond providing shelter is also identified, as in the Port Elizabeth Municipality and Joe Slovo cases, where the Court noted that the Constitution recognises the home as ‘a zone of personal intimacy and family security’.85 Further, in Joe Slovo, Sachs J stated that even the most 77   AL Higginbotham, Jr, FM Higginbotham and SS Ngcobo, ‘De Jure Housing Segregation in the United States and South Africa: the Difficult Pursuit of Racial Justice’ (1990) 4 University of Illinois Law Review 763, 779–80. See further Chapter 4. 78   S Charlton, ‘Housing for the Nation, the City and the Household: Competing Rationalities as a Constraint to Reform?’ (2009) 26 Development South Africa 301, 303. 79   Chameli Singh, above n 40. 80   Charlton, ‘Housing for the Nation, the City and the Household’ above n 78 at 303. 81   Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and others (CCT 22/08), Judgment, 10 June 2009 [2009] ZACC 16 per Sachs J at note 39. 82   Ibid per Moseneke DCJ at 146–47. See also Port Elizabeth Municipality v Various Occupiers (2005) (1) SA 217 at para 16, discussing how the Constitution must be read together with the PIE to explicitly recognise the suffering of those who, as a result of Apartheid, are still struggling to access housing. 83   Joe Slovo, above n 81 per Sachs J at para 177. 84   Government of the Republic of South Africa and others v Grootboom and others (CCT11/00), Judgment, 21 September 2000 [2000] ZACC 1 at para 45. 85   Port Elizabeth, above n 82 at para 17; Joe Slovo, above n 81 per Sachs J at para 354.



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meagre of shelters could bring otherwise isolated and marginalised individuals into a ‘community, with all the social interaction and organised facilities that living within a settled neighbourhood provides’.86 By building their shanties at Joe Slovo, individuals ‘escaped the status of pariahs who had been historically converted by colonial domination and racist laws into eternal wanderers in the land of their birth’.87 The requirement of meaningful engagement or consultation now emerging from the South African judgments could also enhance aspects of participatory democracy, seen as important in giving voice to the concerns of the marginalised in the creation and application of housing policy.88 The judgments also evidence a balancing between the interests of the community as a whole, and the needs of the inadequately housed, which could be interpreted as reflecting Makau Mutua’s conception of the need to contemplate the complex web of community and individual in balancing rights and duties.89 As Sachs J states in concluding his judgment in the Joe Slovo case, the Constitution ‘expands the concept of citizenship . . . for the benefit of all the people who live in the country and to whom it belongs’.90 But, he noted, at the same time, the Constitution is based on the ‘reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the well-being of the community as a whole’.91 III.  CONSTRAINING AND ERASING IDENTITIES: HOUSING AS SOCIAL CONTROL

The South African experience illustrates the possibility housing policies hold as tools of social reorganisation, even social engineering. Yet this potential points to the dark side of housing and community. For, if an ‘all-inclusive community is oxymoronic’,92 a communitarian approach to the right to housing has the potential to result in continued exclusion of some, as much as it contains the latent possibility of fostering community and recognising the identity as full citizens of formerly marginalised groups or individuals. Lurking implicit in the communitarian discussion lies the chance to use housing as social control and reorganisation: while housing can be employed to overcome social marginalisation and alienation, at the same time, housing law and policy can be used as a   Joe Slovo, above n 81 per Sachs J at para 354.  Ibid. 88  S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (New York, Oxford University Press, 2008) 211. 89   Mutua, above n 65 at 344–45. 90   Joe Slovo, above n 81 per Sachs J at para 408. 91  Ibid. 92   G Poindexter, ‘Collective Individualism: Deconstructing the Legal City’ (1997) 145 University of Pennsylvania Law Review 607, 637. 86 87

184  Identity tool of segregation, and as a means of denying social citizenship. The CESCR recognises this reality in its prohibition on the use of evictions in a discriminatory manner, or as punitive measures, and implicitly in its discussion of location as a crucial element of the right.93 Likewise, the right not to be subject to discrimination with respect to housing as set out in the Convention on the Elimination of All Forms of Discrimination (CERD) is based on the understanding that racial and other discrimination is manifested in access to material and social goods, including access to housing.94 I will turn to examine the physical marginalisation and exclusion of individuals and communities through the spatial aspects of housing in the following chapter. In this chapter, I want to examine a further link between identity and housing evident in a communitarian approach, but one with more problematic implications. The hope that we can restructure society through the judicious use of housing and housing policies might rest on the assumption that ‘community’ as a concept is somehow separable from, or identifiable in contrast to, the actual behaviours, attitudes, and desires of individuals and groups. As such, in some instances, proper community values must be imposed’ on those who do not already conform.95 The impact of this assumption can be investigated through an examination of the way women’s identities are imagined, and an analysis of how identities (and even their imagining) are constrained through the way identity, woman and housing are perceived as linked. A.  Constraining Identities: Women, Family and the Ideal of Home Many forms of social segregation or ghettoisation in housing have been overcome. Cultural change, antidiscrimination laws and the human rights idea itself have first exposed and then remedied many overt instances of discrimination and the deprivations of social citizenship that accompany the physical separation of communities and individuals in inadequate housing. The discussion above illustrates the role that a human right to housing has played, or might still play, in these successes. Meanwhile, some forms of separation, inequality and discrimination remain hidden but continue to exert an oppressive force. In this section, I analyse how the idealisation of the home, especially the family home, constrains the forma93   United Nations Committee on Economic Social and Cultural Rights, The Right to Adequate Housing: Forced Evictions (Article 11(1)): Committee on Economic, Social and Cultural Rights General Comment 7 (1997) E/1998/22, Annex IV, paras 10 and 12. See further Chapter 1, III.A. 94   International Covenant on the Elimination of All Forms of Racial Discrimination, UNGA Res 2106A (XX) (adopted 21 December 1965, entered into force 4 January 1969). See further Chapter 2, IV. 95   L Bennett, ‘Do we Really Wish to Live in a Communitarian City?: Communitarian Thinking and the Redevelopment of Chicago’s Cabrini-Green Public Housing Complex’ (1998) 20 Journal of Urban Affairs 99, 107.



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tion of new identities and possibilities for women. In fact, the right to housing offers radical potential to extricate women’s identities from the home and, through positive state obligations for housing, fundamentally transform the role of women in society. I have argued in the context of housing and privacy that for women, the space of home or house may represent an enforced privacy, more akin to privation than to refuge. The home can function as a place in which the woman is consigned to a lesser legal subjectivity. I argued that the conditions in which women find themselves may amount to homelessness, despite the fact that women often remain, both ideologically and practically, tied closely to the home. This association of the woman to the home is both based on and reinforced by the idealisation of the home as a sanctuary, particularly as a sanctuary for the family, and even more specifically as a zone outside the economy.96 It is a vision of the home and women’s place within it that has profound implications for women’s identities. A house is not necessarily a dwelling place. Houses may not be inhabited at all. However, in many cultures, and certainly in the West, the assumed preferred living space of an individual is the family house, occupied by spouses and their dependent children. The Oxford English Dictionary’s primary definition of a house is ‘a building for human habitation’, especially ‘a building that is the ordin­ary dwelling-place of a family’. As such, houses are associated with households, and households are, in turn, associated with families. In addition, at least since the European Industrial Revolution, Western households have been associated with a particular form of family: the nuclear family. Through these interconnections, the family house comes to be seen as a home, imbued with a set of assumptions that personal fulfilment is found in private, through intimate (that is, family) relationships. As Schnably writes, ‘the home and family are practically inseparable not only in their conception, but also in their history: The rise of the home as an ideal and social practice was closely linked to the creation of women’s role as homemakers’.97 This association between the household and the family stands in law, culture, public policy and the public imagination.98 It is so deeply ingrained that the home itself is often represented as female or, more particularly, as maternal.99 The idea of the house as the family home thus resonates with a force that has a deep impact on Western social organisation. And, given the colonial and neo-colonial export of modern Western social and economic mores, coupled with pre-existing patriarchal practices and proclivities, this impact is felt far beyond the West, though in many places it lies in layers between other quite different sources for and impacts on women’s identity.   See further Ch 6.   Schnably, ‘Property and Pragmatism’ above n 27 at 365.  See eg use of the term ‘household’ in S Nock and P Rossi, ‘Household Types and Social Standing’ (1979) 57 Social Forces 1325. Bennett Woodhouse notes that in the United States’ Census, the definitions of family and household are overlapping. See ‘It All Depends on What You Mean by Home’ above n 54 at 571. 99   KD Adams, ‘Do We Need a Right to Housing?’ (2009) 9 Nevada Law Journal 275, 307. 96 97 98

186  Identity The family is widely considered the fundamental unit of social organisation across cultures,100 and for most people, a vision of the world in which family does not constitute the basic unit of society borders on science fiction – a Brave New World dystopia. Nevertheless the conflation of the concept of family with that of the house, and the assumed role of the woman in that house, is problematic for several reasons, each of which can be examined through its impact on women’s identities. Conflating the house with the family results in a situation where the ideal of the family forms the basis for numerous laws and policies. Based not on objective statistics but on idealism and nostalgia,101 the ideological commitment to the family home both constructs and perpetuates a role and identity for women that is tied to the home, and can only be understood within the context of the family as social and economic unit. As a social unit, the family is protected in international human rights, as in Article 16(3) of the UDHR, which states that: The family is the natural and fundamental group unit of society and is entitled to protection by society and the state

a proclamation that reflects the commitment to a society built outwards from the family group.102 The family is the location where citizens are formed, and foundational assumptions about the importance of work, the hierarchies of authority and the nature of gender roles are conveyed through the household. This occurs through the socialisation of family members, but also the normalisation of the family by society and the state more broadly. As the state is built outwards from the family, the family is also constructed by the state. Asbjørn Eide’s comments on the UDHR immediately foreground the gendered nature of the family arrangement. He notes that the UDHR is premised on the expectation that: the realization of economic, social and cultural rights of an individual will usually take place within the context of a household as the smallest economic unit, although aspects of female and male division of labour and control over the produce, as well as various forms of kinship arrangements may present alternative alliances.103

  Universal Declaration of Human Rights, UNGA Res 217 A (III) (10 December 1948) Art 16(3).  In reality, households are seldom formed of nuclear families. For example, by the 1990s, approximately two-thirds of Australian households were not formed of traditional nuclear families. C Paris, Housing Australia (Melbourne, McMillan,1993) 49. See also K Franck, ‘Questioning the American Dream: Recent Housing Innovations in the United States’ in R Gilroy and R Woods (eds), Housing Women (London, Routledge, 1994). 102  See also International Covenant on Civil and Political Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 23 March 1976) Art 23(1); International Covenant on Economic, Social and Cultural Rights, UNGA Res 2200A (XXI) (adopted 16 December 1966, entered into force 3 January 1976) Art10(1). 103   A Eide, ‘Article 25’ in A Eide et al (eds), The Universal Declaration of Human Rights: a Commentary (Drammen, Scandinavian University Press, 1992) 387. 100 101



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The family, as Eide notes, is also an economic system. It is the location in which it is assumed that basic human needs of food, shelter and care will be met, an economic role enshrined in our human rights Covenants and thus pervading international human rights. Moreover, the family is an economic unit in which women’s provision of basic needs is essential. Historically, Engels noted how, through the development of the patriarchal family, women’s administration of the household ceased to be public in character and thus a concern of society. Instead, it became a ‘private service’ outside the bounds of social production.104 Accordingly, the role women have performed in protecting and providing basic human needs, a role which is constitutive of the social order as we know it, is often ignored and obscured in policy debates on the role of the state versus the individual in the fulfilment of these needs. Because it is presumed that basic needs are fulfilled in the family or household unit (or failing such, then by alternative networks of kinship, patronage or community) the state is considered only the remedial provider of social and economic goods. The hidden role of women in the provision of these needs and goods has significant implications when basic needs are translated into the language of entitlements against the state, for example, as a right to housing. Donnelly’s ‘deconstruction’ of human rights105 neatly illustrates the way in which certain needs are placed outside the sphere of human rights entitlement precisely because of their assumed private provision by the family. He notes that we do not have human rights to all important goods. Rather, ‘many notable rights (in the sense of rectitude) and wrongs – for example charity, compassion and the support of loving family and friends – simply are not matters of “human rights” (entitlement)’.106 The assumption is that such rectitudes will be provided within the family, and this assumption allows a selection of rights for recognition in international law and politics, ‘de-emphasizing or devaluing others’.107 These other ‘rights’ remain in the realm of rectitudes: they are to be provided in private, and not by the state. It is for this reason that the right to housing as a human right remains a radical proposition, particularly in its ‘positive’ aspects: to take such basic, private needs and translate them into public entitlements challenges the entire ‘cellular form of civilised society’108 represented by the family. Even to identify this deeply radical aspect of the right to housing allows us to interrogate the way in which our commitment to housing as a familial institution, by its very nature, relies on the nexus between woman and the home. The 104   F Engels, ‘The Origin of the Family, Private Property, and the State’ in RC Tucker (ed), The Marx-Engels Reader, 2nd edn (New York, Norton and Company, 1978) 744. 105  J Donnelly, ‘The Social Construction of International Human Rights’ in T Dunne and NJ Wheeler (eds), Human Rights in Global Politics (Cambridge, Cambridge University Press, 1999). 106   Ibid 79. 107  Ibid. 108   Engels, ‘The Origin of the Family, Private Property, and the State’ above n 104 at 739.

188  Identity very envisioning of housing as a right creates space in which to re-imagine the form and nature of society, and particularly to reveal the hidden role of women in the private provision of basic human needs. Perhaps surprisingly, this radical potential of the right to housing has not been raised in academic debate. Less surprisingly, it has not been litigated or considered by the relevant international monitoring bodies. Attention has focused on the seemingly radical financial implications of the right’s implementation, but the social impacts of a positive right to housing have barely been investigated. Where these have been critiqued, the focus has normally fallen on the potential for ‘housing as a handout’ to undermine individual striving, and reduce incentives to contribute to society.109 A focus on women’s identities, however, illustrates that a right to adequate housing as a public right, rather than as provided privately through the family, might actually present incentives, as well as mere possibilities, for women to contribute to society in new ways, by decreasing the invisible workload that often keeps women from active civic and public participation. Re-imagining housing in a way that escapes the house–family nexus creates not only a conceptual space, but in fact may lead to the creation of new physical spaces. This is because the ideological commitment to the family home plays out in the physical construction of housing in ways that not only privilege certain familial arrangements, but can even determine the roles of production, care and authority that can be performed by members of a household. As Silbaugh notes, the ‘single family home design reflects an ideology of domesticity for mothers’ which, despite the increase in women’s labour market participation in the twentieth century, has not been accompanied by ‘a rearrangement of the norms of domesticity’ that are ‘so firmly entrenched in the built environment’.110 In other words, the form of our housing, both individually as home and aggregately as neighbourhood, is based on the assumption of woman’s private labour in the home. The single family dwelling consumes labour power. The physical possibility of communal, public or collectivised laundries, kitchens and nurseries is thus, also, a possibility that frees women from an often concealed, but still pervasive, identity as a home-worker. The political, legal and social reliance on the house as the home of the nuclear family also physically constrains housing options that are available to other family arrangements. Franck, for example, writes of the ‘scrutiny or outright hostility of surrounding neighbourhoods and regulating agencies’ to proposals to build alternatives to the single family home.111 While the power of the idealised family home makes it difficult to implement alternatives, more seriously, it ‘constrains the envisioning of them in the first place’.112   See R Ellickson, ‘A Right to Housing?’ (1994) 4 Responsive Community 43, 43–45.   K Silbaugh, ‘Women’s Place: Urban Planning, Housing Design, and Work-Family Balance’ (2007) 76 Fordham Law Review 1797, 1851. 111   Franck, ‘Questioning the American Dream’ above n 101 at 244–45. 112  Ibid. 109 110



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The political, cultural and social commitment to the nuclear family home thus has concrete effects on the form of family life and household composition that is physically possible within a society. Moreover, the ideologically privileged form of the traditional nuclear family is maintained and replicated through the physical provision of particular forms of housing, thereby reproducing assumptions about the appropriate roles of family members and their economic and social contributions to the household unit, and beyond that unit, to the state. The right to housing as a positive entitlement of state provision offers the radical potential to free women’s identities from the home, even if the sheer radicalism suggested by such a fundamental social reorganisation makes any such interpretation of the right to housing in international or regional human rights law unlikely. In the next section I address instances where the far-reaching potential of different forms of housing, and the policies used to implement different ways of living in such housing, have been embraced specifically to radically change – or even to erase – the identities of indigenous peoples. B.  Erasure of Indigenous Identity: Forced Displacement and Acculturation through Housing Policy The previous section discussed the conceptual commitment to the family home as a housing ideal, the impacts of this ideal on the identity of women, and the radical potential of positive obligations in the right to housing to open up new identities for women to achieve equal social citizenship. Implicit in the analysis is the comprehension that housing has a potential to constrain or erase identity, at the same time as it can foster and create identity. Here, I deal explicitly with how housing, and state housing policies, have been used to erase identities, particularly the identities of indigenous people, and how recognising a right to housing might better protect the identity of indigenous peoples facing these threats. State housing policies have consciously been employed, particularly by colonial or imperial state powers, to assimilate, and thus erase, the identity of indigenous peoples. The use of these policies is a study in the link between social exclusion and the function of law as an exclusive device. The definition of indigeneity is seriously contested, with far-reaching legal and political implications. The only internationally binding definition of indigenous status is set out in the International Labour Organization’s (ILO) Convention 169 Article 1, to which 20 states are parties.113 This definition does 113  ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991). Article 1 reads ‘(1) This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples

190  Identity not rely on or mention a connection between the indigenous population and a cultural, spiritual or physical attachment to land. However, a ‘distinctive spiritual relationship’ with ‘traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas’114 is generally considered a core element of indigenous identity, both by non-indigenous peoples (including, importantly, by courts) and by indigenous peoples themselves. Potent statements of the link between indigenous identity and the land have been invoked by a range of indigenous actors as a foundation for both legal and political strategies. For example, a group of Inuit mounting a legal challenge before the Inter-American Court of Human Rights (IACtHR) recently argued that: It is out ‘on the land’ that the Inuit culture finds its true expression and where our Elders pass on the knowledge of generations to our young people. By being on the land and hunting, our young people learn all the skills they need to survive in the modern world: patience, endurance, persistence, strategy, courage, and, ultimately, wisdom.115

Likewise Australian aboriginal groups assert a particular inherent relationship with the land: [Europeans] look upon land as ‘my land, I own that land’. Whereas Aborigines look at something as a part of the whole, a part of themselves, and they are part of that – the land. The land and they are one.116

Meanwhile, state use of territorial and ancestral ties to land to define indigenous identity is routine. In some jurisdictions, notably Canada and Australia, the recognition of indigenous rights or title to land in colonial law is achieved only through indigenous ties to land or traditional territory.117 Similarly, the African Commission recently stated in the Endorois case that at the heart of indigenous rights lies the issue of preservation of identity through identification with ancestral lands.118 The implications of relying on traditional ties to land to ground indigenous rights claims are multiple, and at times indigenous groups walk on a knife’s in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions’. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007) UNGA A/61/67, Annex (7 September 2007) considers indigenous status a matter of selfdetermination (Art 33). 114   UNDRIP, above n 113 Art 25. 115   S Watt-Cloutier, ‘The Arctic and the Global Environment: Making a Difference on Climate Change’, speech at Solutions for Communities Climate Summit, 1 April 2006, available at http:// inuitcircumpolar.com/index.php?ID=329&Lang=En. 116  R Bowden and B Bunbury, Being Aboriginal: Comments, Observations and Stories from Aboriginal Australians (Maryborough, Australian Broadcasting Corporation Enterprises, 1990) 54. 117   In the Canadian context see Delgamuukw v British Columbia (1997) 3 SCR 1010. The seminal Australian case is Mabo v Queensland II (1992) 175 CLR 1. 118   Endorois, above n 68 at para 162. See further Ch 3, III.



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edge between powerful uses of identity politics, on the one hand, and the potential for essentialisation of indigenous culture in ways that foreclose avenues for legal and political recognition and redress, on the other.119 John Borrows notes the double bind that ties indigenous peoples to the land. He argues that indigenous peoples are characterised in law as either ‘too mobile’ or ‘too static’ and are denied rights on both counts.120 Regardless, however, of one’s view of the desirability or utility of making claims in these terms, questions about homeland, rootedness, continuity of belonging, and physical attachment to land take on particular significance in discussions of indigenous culture, rights and identity, in important part because ‘dispossession of territory is the hallmark of aboriginal minorities’.121 These questions are foregrounded by a discussion of the role of housing when it is recognised that, on the one hand, housing policies have systematically been employed as physical determinants of citizenship, membership and belonging and, on the other, for the erasure, marginalisation and invisibility, of indigenous peoples. These efforts have involved the creation of substantive housing policies as well as the use of forced displacement, as tools of modernisation and for the purposes of assimilation and acculturation. Housing policies used as an instrument to assimilate and render invisible the distinctive identities of indigenous peoples have a long historical pedigree, particularly notable where European powers invaded and colonised already inhabited lands. However, these polices cannot merely be thought of as unfortunate historical incidents of a less enlightened time. Rather, such policies continue to be used by states to control those populations regarded as other, particularly Aboriginal peoples with cultures that do not conform to dominant patterns of life in states now settled through colonisation. The complaints brought before the European Social Committee about various European states’ treatment of Roma communities, particularly through policies resulting in Roma’s confinement to segregated camps,122 illustrate the continuing significance of this approach. The policies of assimilation of indigenous identity through housing emerge clearly from any examination of Australian indigenous housing policies. As Peter Read notes: 119   See further J Hohmann, ‘Igloo as Icon: a Human Rights Approach to Climate Change for the Inuit?’ (2009) 18 Transnational Law and Contemporary Problems 295. 120  J Borrows, ‘Physical Philosophy: Mobility and the Future of Indigenous Rights’ in BJ Richardson, S Imai and K McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, Portland, 2009) 403. See also R Sylvain, ‘ “Land, Water, and Truth”: San Identity and Global Indigenism’ (2002) 104 American Anthropologist 1074. 121  D Pearson, The Politics of Ethnicity in Settler Societies/States of Unease (Houndsmills, Palgrave, 2001) 13. 122   See eg the CERD case LR v Slovak Republic (31/03) CERD/C/66/D/31/2003 (2005) discussed in Ch 2, IV; and European Social Committee cases ERRC v Bulgaria (ESCR Case no 31/2005), Decision on merits, 19 October 2006; and ERRC v Italy (ESCR Case no 27/2004), Decision on merits, 21 December 2005 discussed in Ch 3, II.A.iv.

192  Identity from the earliest post-invasion time, Aboriginal housing was not an end in itself, but secondary to the aims of resocialisation and acculturation. A cottage inhabited by an Aboriginal family was less a shelter than an instrument of management, education, and control.123

A right to housing, particularly such as interpreted by the CESCR, can respond to the use of housing policy as an instrument of acculturation. The requirement that housing be culturally adequate is a powerful rejoinder to state-led attempts to ‘modernise’ housing for indigenous populations. At the same time, the overall requirement of adequacy responds to state provision, or imposition, of substandard housing on indigenous peoples, which can itself be seen as a denial of full indigenous membership of society. William Sanders, for example, details the efforts of the Australian state to provide ‘transitional housing’ to Aboriginal populations during the 1950s and 1960s.124 Under these policies, the state provided ‘basic’ housing to Aboriginal families, ‘training’ them to live like the suburban colonial population.125 Meanwhile, the Canadian authorities were using policies of settlement for assimilationist ends: in the arctic regions, they encouraged or forced Inuit communities to adapt their nomadic lifestyles to settled towns,126 providing purpose built European-style housing which to this day remains ill-suited to Inuit lifestyles, and falls far below the standard of adequacy deemed acceptable for the colonial Canadian.127 Israel has also employed policies of ‘sedentarisation’ to manage and control pre-existing Bedouin populations, resulting in Bedouin communities being confined to reserves and excluded from their traditional lands.128 These efforts reflect the CESCR’s warning that cultural adequacy should not be used as an excuse for the failure to provide adequate housing that employs the best of modern technologies and resources.129 Such state housing policies seek to unravel the particular connection between indigenous culture and the land, and are a recognition, as Bain Attwood notes, that in order to ‘civilise’ an indigenous population, the state must not only convert the Aboriginal people, ‘but also the land itself in which Aboriginal culture was embedded’.130 Echoes of this approach are also heard in the Indian Supreme Court’s Narmada judgment of 2000. In this case, the forced removal of tribal peoples from their lands, undertaken to provide the Indian state with modern 123   P Read, ‘Preface’ in P Read (ed), Settlement: a History of Australian Indigenous Housing (Canberra, Aboriginal Studies Press, 2000) ix. 124  W Sanders, ‘Aboriginal Housing’ in C Paris, Housing Australia (Melbourne, MacMillan, 1993) 223. 125   Ibid 215–16. 126   AR Marcus, Relocating Eden: the Image and Politics of Inuit Exile in the Canadian Arctic (Hanover, Dartmouth College University Press of New England, 1995) 2. 127   P Dawson, ‘Unfriendly Architecture: Using Observations of Inuit Spatial Behavior to Design Culturally Sensitive Houses in Arctic Canada’ (2008) 23 Housing Studies 111. 128   K Goering, ‘Israel and the Bedouin of the Negev’ (1979) 9(1) Journal of Palestinian Studies 3. 129   General Comment 4, above n 61 at para 8(g). See further Ch 1, III.A.vii. 130   B Attwood, ‘Space and Time at Ramahyuck, Victoria, 1863–85’ in P Read (ed), Settlement: a History of Australian Indigenous Housing (Canberra, Aboriginal Studies Press, 2000) 43.



Constraining and Erasing Identities: Housing as Social Control  193

infrastructure, links the reshaping of the land with the reshaping of the population into useful citizens.131 Kirpal J’s statement that the removal of the tribal populations, despite their strenuous opposition, would nonetheless lead to their ‘betterment and progress’132 is a striking example. States also continue to control social inclusion and exclusion through the recognition of forms of housing. In the recent ERRC v France133 case brought under the Revised European Social Charter, French housing laws denied social housing benefits to Roma persons who lived a settled lifestyle, but who settled in caravans.134 France argued that Roma who wished to gain housing benefits should simply move into ordinary housing. The European Social Committee found this response inadequate, recognising the discriminatory impact of the policy, and implicitly protecting the expression of Roma culture through housing choices.135 The French state’s position in the case must be seen in the context of mass expulsions of Roma during 2010, undertaken in an atmosphere of racism and xenophobia, and accompanied by the destruction of Roma campsites. These measures were severely criticised by the European Commission as ‘a disgrace’,136 and are a disquieting reminder of how the housing settlements of the marginalised still serve as a focal point for the exclusion and cultural elimination of certain populations. ERRC v France also illustrates that the definition of housing is of more than academic significance. A definition of homelessness that is too closely tied to the features of a dwelling may exclude the types of homelessness experienced by indigenous peoples. The Australian Bureau of Statistics’ definition is itself enlightening in this respect. According to this definition, homelessness is experienced when an individual or family does not have ‘the minimum accommodation necessary to live according to the “conventions of community life” ’.137 In Australia, the minimum standard is said to be met by the provision of a ‘small rented flat with basic amenities such as a bedroom, bathroom and kitchen’.138 This definition of a culturally adequate dwelling is, however, woefully inadequate for many of Australia’s indigenous inhabitants, whose sense of ‘home’ is based not only on physical space, but also on spiritual connection and ‘place’ 131   Goering, ‘Israel and the Bedouin of the Negev’ above n 128 at 12; Read, ‘Preface’ above n 123 at ix. 132   Narmada Bachao Andolan v Union of India and Others AIR (2000) SC 3751, 3787. 133   ERRC v France (Case no 51/2008), Decision on merits, 19 October 2009. See further Ch 3, II.A.iv. 134   Ibid 59. 135   Ibid 60. 136   Europa Press Release, ‘Viviane Reding Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Statement on the latest developments on the Roma situation, Brussels, 14 September 2010, Midday briefing in Press Room’ (SPEECH/10/428), 14 September 2010. 137  P Lynch and J Cole, ‘Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation’ (2003) 4 Melbourne Journal of International Law 139, 141. 138   Ibid 142.

194  Identity within the land.139 At a conceptual level, it is difficult to read this definition without seeing implicit in it that ‘the conventions of community life’ are measured in terms of the settler community only. At a practical level, providing a small rented flat may offer physical shelter in the short run, but not take into account issues of community and attachment to land, which are vital elements of adequate housing. This is one reason why attempts to provide Western-style housing to indigenous communities across the world have often proven dis­ astrous.140 Given this reality, conceptions of housing such as that expounded by the African Commission in the Endorois case offer possibilities for moving beyond the problems illustrated in these narrow definitions. In the Endorois case, the African Commission appears to understand housing as a need that incorporates the interrelationship of individuals, communities, the land, property rights and socio-economic opportunities within the state.141 Such a conception better addresses the concerns of indigenous housing, which have not yet adequately been met through housing rights, land rights, property rights or rights to non-discrimination alone. As the Narmada, Endorois and other judgments illustrate, forced displacements and relocations have repeatedly been used as tools in policies to assimilate and to ‘modernise’ indigenous peoples. Although any positive recognition of the important link between traditional lands and indigenous culture and identity remained long unrecognised in law, it was always implicitly accepted that removing indigenous individuals and communities from their lands could be used as a tool of acculturation. Forced displacement occurs when people are removed from their homes, or their homes are destroyed, against their will. Violence, war, coercion (both legal and physical), development projects, rezoning, mortgage repossession, city regeneration schemes and international events all play their role in the involuntary movements of people. When states marginalise or ignore certain populations, placing them at greatest risk of loss of housing, even seemingly natural forces such as floods may amount to forced displacement.142 The consequences of forced displacement on identity are both diverse and serious. The displaced are often subject to severe upheavals in the physical but also social landscape. Material resources such as housing, crops and associated production systems may be lost, but social and economic networks also fall victim to the physical upheavals.143 Michael Cernea details the ‘landlessness, 139   P Havemann, ‘Denial, Modernity and Exclusion: Indigenous Placelessness in Australia’ (2005) 5 Macquarie Law Journal 57, 68. 140   See eg H Press, ‘Davis Inlet in Crisis: Will the Lessons Ever be Learned?’ (1995) 15 Canadian Journal of Native Studies 187. 141   See further Chapter 3, III. 142   Havidán Rodríquez, ‘A “Long Walk to Freedom” and Democracy: Human Rights, Globalization, and Social Injustice’ (2004) 83 Social Forces 391, 400–02. 143   D Clark, ‘The World Bank and Development-Induced Displacement in South Asia’ (1997) 4 Brown Journal of World Affairs 215, 216; S Emmott, ‘  “Dislocation”, Shelter and Crisis: Afghanistan’s Refugees and Notions of Home’ (1996) 4 Gender and Development 31, 35.



Constraining and Erasing Identities: Housing as Social Control  195

joblessness, homelessness, marginalisation, increased morbidity, food insecurity, loss of access to common property and social disarticulation’ that often follow forced or involuntary displacements.144 While Cernea argues that a sensitive, participatory resettlement policy can counteract the negative effects of forced displacement,145 some losses are irreparable, particularly where there is a spiritual, ancestral or communal attachment to the land or dwellings from which one is displaced. Because such an attachment is normally a feature of indigenous culture and existence, forced displacements have a particularly severe impact on indigenous identity. Indigenous, nomadic and marginalised minority populations are often, at the same time, at the greatest risk of forced displacement, as placed at the extremes of vulnerability are ‘those most likely to be considered as “others” . . . people who are likely to be able to mount least resistance’,146 particularly scattered populations living in so-called wild or unpeopled regions, which are deemed ripe to be ‘used’ or ‘settled’.147 Vulnerability does not, however, equate to powerlessness. Indigenous populations subject to policies of acculturation through housing have resisted in novel and creative ways. Mark Antaki and Coel Kirkby write of how the Kanien’kehák:ka people, living in a reserve across the St Lawrence River from the city of Montreal, removed all street signs and house numbers to thwart the Canadian state’s attempts to conscript their men into the armed forces during the Second World War.148 The denials that come with geographic and political marginalisation are multiplied exponentially by legal definitions of indigenous lands as terra nullius. The characterisation of indigenous lands as ‘empty’ strips the inhabitants of recognition in law. It is a deprivation of identity over and above the denial of specific indigenous property rights by colonial property regimes, in that the designation of lands as terra nullius is a formal statement of the non-existence of a people. Terra nullius is the apogee of identity erasure. Definitions of a right to housing which include homeland as home are a powerful response to the erasure of indigenous identity through forced resettlements and terra nullius designations. The element of cultural adequacy enshrined in the CESCR’s work on the right to housing, and reflected in the recent cases of the African Commission, is a move in this direction that could have significant implications for the perceived legality of such policies. In addition to the conceptual space provided within a right to housing interpreted in this way, addressing these 144   M Cernea, ‘Understanding and Preventing Impoverishment from Displacement: Reflections on the State of Knowledge’ in C McDowell (ed), Understanding Impoverishment: the Consequences of Development-Induced Displacement (Providence, Berghahn Books, 1996) 13 and 21–22. 145   Ibid 22. 146   Porteous and Smith, Domicide above n 10 at 191. 147   Ibid. See also T Rangwala, ‘Inadequate Housing, Israel, and the Bedouin of the Negev’ (2004) 42 Osgoode Hall Law Journal 415. 148   M Antaki and C Kirkby, ‘The Lethality of the Canadian State’s (Re)cognition of Indigenous Peoples’ in A Sarat and JL Culbert (eds), States of Violence: War, Capital Punishment and Letting Die (New York, Cambridge University Press, 2009) 208.

196  Identity questions of home, homeland and identity through a right to housing may provide a helpful escape from the politicisation of land rights debates, thus offering new practical avenues for the redress of indigenous land grievances. As the analysis in this section illustrates, examining the importance of a right to housing through the lens of identity reveals the extent to which housing and land are ‘social and spatial forms expressing contested conceptions of how Aboriginal people were and are supposed to live’.149 Laws and policies on housing, forced displacement and forced settlement have long been employed to control the identities of indigenous populations, often with the specific and overt goal of erasing the identity of an indigenous population through acculturation and assimilation. The right to housing illustrates both a potential response to the evils of these policies, and a conceptual and practical space for indigenous peoples to negotiate claims to cultural recognition. IV. CONCLUSION

A link between housing and individual, group, and even national, identity runs as a deep assumption through our cultural and political systems, and has been explored in depth in many academic disciplines. Nevertheless, it is a link that remains little investigated in law. The analysis undertaken in this chapter illustrates the myriad ways in which housing, home and the laws and policies governing these spaces impact on the identities of persons. Sometimes these impacts are positive, as revealed by the way a home may foster and constitute identity and personhood, and the ways housing policies can be used to include and recognise previously marginalised groups within the community of a state. At times, housing and housing policy can constrain the imagining and realisation of new or different identities, as is the case of women’s identities and their historic and continuing tie to the family home. Housing policies can even function in ways that are intended to erase identities, as has so often been the case for indigenous populations. There is perhaps an implicit recognition of the power of housing policies over identities in the fear that the right to housing might prove too radical in its social impacts, although such fears are normally expressed in the language of economic anxieties. At the same time, the lens of identity gives us a way of considering the intangible and uncommodifiable aspects of housing that might be captured in a right to housing, yet slip through the web of debates in the discourse of property law, land rights or social welfare. The ‘lens’ of identity serves to illustrate the way the right to housing can encompass the intangibles of the relationship between the social environment and the person. Identity also places the person, and that person’s relationship to housing, squarely at the heart of the issue, thus offering an opportunity to remedy the   Read, ‘Preface’ above n 123 at ix.

149



Conclusion  197

decontextualised and abstract interpretations of the right that currently exist in the majority of legal interpretations of the right. The following chapter, on space, illustrates the fundamental connection of all human rights to the body, and to spatial aspects of existence foregrounded in struggles for rights.

8 Space I.  INTRODUCTION: THE SPATIALITY OF RIGHTS

T

HE END RESULT of the realisation of the right to housing is, in most cases, a house. It is, thus, tangible. It is always found and located somewhere. Unlike abstract concepts and states of being such as freedom or privacy, housing is a material object with a concrete presence. Although the spatial aspect of housing might appear unique, in fact housing’s materiality invites consideration of the relationship between space, rights and existence in ways that illuminate the fundamental, material, connection of all rights to the human body. The fact of location in space might at first appear insignificant to the question of rights, but location ‘comes first’ in the sense that ‘it is the bedrock of the possibility of existence’.1 We have explored this connection in the context of privacy and homelessness, but it exists for every human right. Courts pronouncing on the importance and meaning of the right to life often begin their analysis with a statement that the right to life is the most fundamental right, without which the enjoyment of all other rights is vitiated. For example, in the words of the Inter-American Commission on Human Rights, the right to life is ‘the supreme right of the human being, and the conditio sine qua non to the enjoyment of all other rights’.2 Such statements appear so self-evident that they seldom invite explicit reflection on the fundamental connections between space, rights and the human person. An analysis of the right to housing, however, makes clear the spatial aspects that often remain obscured in our discourses and practices of human rights. The linkages between housing, the occupation of space, and the use of law to manage and arrange social possibilities through the recognition, or denial, of rights, were teased out in the analyses of privacy and identity. Those chapters examined the often hidden relationship between the ‘physical contours’ of our environments, and the legal rules that structure these spaces.3 In this chapter, these connections are immediately obvious, bringing the issue of space to the forefront. 1   T Cresswell, ‘Place: Part I’ in J Agnew and J Duncan (eds), The Wiley-Blackwell Companion to Human Geography (Oxford, Blackwell, 2011) 236. 2   Michael Domingues v United States (Case no 12.285), Merits Decision, 22 October 2002, Report no 62/02 IACHR para 38. 3   J Nedelsky, ‘Law, Boundaries, and the Bounded Self’ (1990) 30 Representations 162, 177.



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This chapter illuminates the way housing structures social possibilities and, at the same time, how social forms (importantly, the state) construct possible housing types and arrangements. It forefronts the way in which struggles to resolve questions of status and rights are often determined by relationships to space, as well as how law and rights simultaneously structure space itself. In order to illuminate the relationship between space, rights and human being, I examine the contestations over the right to housing in Mumbai (formerly Bombay) India. Mumbai’s ongoing experience of urbanisation is unique in that the right to housing, as both a political and legal claim, has been a constant feature of the contestation of physical space. As such, the struggles over the right to housing in Mumbai provide a particularly incisive example of the role of the right to housing in the structuring of social and physical space. There are two ways that the spatial reordering of Mumbai can be understood as a reordering of rights to be housed, and to be physically present, in the city. The first involves practices of political exclusion and social invisibility, which take place in the context of environmental rights campaigns and their attendant discourses of city beautification and regeneration, and which have been accompanied by a shift in legal discourse away from the right to housing of the poor. The second is the use of housing and housing policy as a technique of governance and act of sovereignty, which emerges through the state’s efforts to control and discipline the unruly, informal, elements of the city. Both practices of housing as control take place against the backdrop of profound longings for the spatial and social transformation of Mumbai. Here, these visions of social transformation are analysed through the planning document Vision Mumbai: Transforming Mumbai into a World-Class City.4 Although just one, albeit high-profile, example in a long line of planned spatial transfigurations of the city,5 Vision Mumbai and the ideal it embodies exemplifies the connections among rights, space, legal personhood and social belonging that characterise life in the city. Both of these case studies illustrate the interlaced nature of rights to space; visions of social transformation; and the contestation of legal and political rules and powers that structure that space. Each also shows the limitations inherent in a spatial understanding of the right to housing. Thus, although understanding the right to housing as a right with spatial characteristics is a powerful analytic tool, I argue that a right to housing that fulfils emancipatory aims must be based on more than just spatial inclusion. In the final section, I offer two possibilities for responding to the use of housing as a technique of governance and social control. These involve attention to ‘place’ in addition to space, and reflect the radical aspects in the demand for the right to the city. 4   McKinsey & Co, Vision Mumbai: Transforming Mumbai into a World-Class City: A Summary of Recommendations (New Delhi, Cirrus Repro, 2003). 5   See SN Singh, Development in Bombay (Bombay, Director of Public Information, 1924) on the plans for the development of Back Bay and Marine Drive, and the special issue of the journal MARG in 1965, dedicated to the vision of a twin city for Mumbai, ‘Bombay: Planning and Dreaming’ (1965) 18 MARG.

200  Space The chapter illuminates several overarching themes. These include, first, the way rights and housing come together with questions about inclusion and exclusion, belonging and invisibility. These questions are situated in Mumbai within contested discourses of environmentalism as ‘green’ and the needs of the poor as ‘brown’. The contestation of space in Mumbai illustrates that questions of who will be housed, and how, carry with them deeper questions about who is to have the right to be in the city, and thus who is accorded full citizenship in the state. A second and related theme is that of who ‘owns’ the city. The question of who speaks as and for the city is tied up in complex ways with the ownership of rights and space. The struggle to take control of the right to housing involves the courts, the city and state governments, the poor, the middle classes and the elites in shifting and complex alliances based on a mixture of ideology, selfinterest and political power. Finally, the analysis illuminates not only the connections between space, housing and rights but also serves to bring the debate squarely back to the vexed question of the state as guarantor, but also violator, of human rights. Caught up in this question are the implications of the ‘negative’ and ‘positive’ aspects of human rights and the role of the state in their realisation. Such questions illustrate the tension between the quest for social transformation and the desire for social order evident in the struggle over the meaning, purpose and scope of all human rights. II.  HOUSING AS SOCIAL CONTROL/HOUSING AS SOCIAL TRANSFORMATION

The fact that housing policies are well suited to use as tools of social engineering is known to states, as is evident from the analysis of identity undertaken in Chapter 7. Moreover, while such policies can be motivated by efforts to enhance social integration and bring previously marginalised and excluded individuals into communities, from the neighbourhood to the nation, lurking implicit in this possibility is the darker side of housing as social control. While housing can be employed to overcome social marginalisation and alienation, at the same time, housing law and policy can be used as a tool of social segregation, and as a means of denying social citizenship. The Committee on Economic, Social and Cultural Rights recognises this reality in its prohibition on the use of evictions in a discriminatory manner, or as punitive measures,6 and implicitly in its discussion of location as a crucial element of the right.7 Likewise, the right not to be subject to discrimination with 6   United Nations Committee on Economic Social and Cultural Rights, The Right to Adequate Housing: Forced Evictions (Article 11(1)): Committee on Economic, Social and Cultural Rights General Comment 7 (1997) E/1998/22, Annex IV, paras 10 and 12. See further Chapter 1, III.A.i. 7   United Nations Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1)): Committee on Economic, Social and Cultural Rights General Comment 4 (1991) E/1992/23 para 8. See further Chapter 1, III.A.vi.



Mumbai: Housing, Rights, Citizenship, Space  201

respect to housing as set out in the Convention for the Elimination of Racial Discrimination is based on an understanding that racial and other discrimination manifests itself in access to material and social goods, including access to housing.8 However, while the most obviously discriminatory housing laws across the world may have been repealed, there are more subtle, yet potent, possibilities inherent in the control of, access to, and rights to, space. These two possibilities – housing as social transformation and housing as social control – are not two poles of an axis. Rather, they are two sides of a coin, separated only by the thinnest measure. The quest for social transformation through the right to housing can offer the chance for full social citizenship and greater material equality. Yet visions of social transformation can also strip away rights and lead to denials of the ability to belong, even to exist. When, as Upendra Baxi notes, human rights are expressed and interpreted through a theory that remains ‘primarily concerned with the power to rule’ citizenship emerges ‘in lived reality, as a freedom to choose forms of subjection’.9 We must recognise that all discourses of rights walk on a knife’s edge between practices of emancipation and practices of control. This characteristic is not unique to the right to housing. Importantly, it is not even unique to struggles formed around the concept of human or legal rights: as Orly Lobel points out, ‘it is the act of engagement, not law, that holds the risks of cooptation and the politics of compromise’.10 After the revolution, the revolutionaries are always forced to face this fact. This chapter’s analysis of the struggles for the ownership and control of the right to housing, and the visions of social transformation sought through it, illustrate the difficulty of the search for social transformation that brings actual social and political emancipation. The chapter thus acts as an introduction to the final part of the book, on the possibilities of human rights. III.  MUMBAI: HOUSING, RIGHTS, CITIZENSHIP, SPACE

Originally, the land on which the city of Mumbai now sits did not exist. Seven low-lying islands, surrounded by mangrove swamps and river estuaries and sparsely populated by indigenous fishing peoples, reached out from the mainland towards the sea. It was with the colonial powers, first Portugal and then Britain, that Mumbai began to grow as a metropolis, taking in Bombay and Salsette Islands, and then spreading out into a suburban area on the mainland, simultaneously reclaiming land from the mangroves and the sea.11   See further Chapter 2, IV.   U Baxi, ‘The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlessness in India’ in C Raj Kumar and K Chockalingam (eds), Human Rights, Justice, and Constitutional Empowerment (New Delhi, Oxford University Press, 2007) 20. 10   O Lobel, ‘The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics’ (2007) 120 Harvard Law Review 937, 977 (emphasis in original). 11   G Prakash, Mumbai Fables (Princeton, NJ, Princeton University Press, 2010) 31–35. 8 9

202  Space Migration, population growth and social change have been prominent features of Mumbai’s development throughout its history, but the interplay of ‘push’ and ‘pull’ factors that result in migration to the city is complex. On the one hand, migrants flee the poverty and lack of economic and social mobility that often characterises life in rural India, where drought and hunger plague daily life. As PC Mishra writes, ‘urban poverty seen in our cities and towns is in fact rural poverty, spatially shifted’.12 On the other hand, Mumbai itself is a lure – a glittering city of intellectual, financial and social opportunity. Because of Mumbai’s status as India’s economic capital and, in the past, as a centre for manufacturing and an important port, migrants have flocked to the region. Here, there is hope for ‘freedom to become an individuated person and escape into a world of personal accomplishments and strivings’, a freedom which is represented by a modern India, where people are freed from the constraints of caste, community and duty.13 The city thus represents an escape from lives of often crushing rural poverty, and an escape to a new India where lives and identities can be remade. The simultaneity of Mumbai as the place of hope and new beginning; and Mumbai as the place of alienation, toil and heartbreak, is played out over and over again in the Bollywood films which provide the city’s soundtrack.14 In the pre-Independence port and manufacturing city of Bombay, colonial natives were needed to work the city’s mills and docks, and immigration was encouraged for this purpose. The incoming population of the city were largely housed in unregulated settlements. These included tightly packed workers’ tenements, known as chawls. According to the 1901 census, the conditions were of ‘incredible’ poverty.15 Along with other informal settlements ‘for which the term housing was largely a euphemism’,16 chawls were allowed to grow unchecked during the first half of the twentieth century.17 Then, as now, ‘slums provided a low-cost solution’ to the city’s housing needs.18 The marginalised and unregulated housing conditions of the Indian workers existed in striking contrast to the formal landholdings of the colonial administrators and their attendant elites. The colonial powers occupied prime land. Their rights to trade, to own property, and to exploit labour were protected by 12   PC Mishra, ‘Right to Shelter: a Human Right Perspective’ (1998) 40 Journal of the Indian Law Institute 230, 238. 13   S Pendse, ‘Toil, Sweat and the City’ in S Patel and A Thorner (eds), Bombay: Metaphor for Modern India (Bombay, Oxford University Press, 1995) 12. 14   A Gangar, ‘Films from the City of Dreams’ in S Patel and A Thorner (eds), Bombay: Mosaic of Modern Culture (Bombay, Oxford University Press, 1995). 15  S Hazareesingh, ‘Colonial Modernism and the Flawed Paradigms of Urban Renewal: the Uneven Development of Bombay City 1900–1925’ (2001) 28 Urban History 235, 238. 16  Prakash, Mumbai Fables above n 11 at 65. 17   As Anand and Rademacher note, ‘despite anxious literatures that suggest otherwise, settlements have been central features of Mumbai’s housing landscape for much of the city’s history’. N Anand and A Rademacher, ‘Housing in the Urban Age: Inequality and Aspiration in Mumbai’ (2011) 43 Antipode 1748, 1754–45. 18   L Weinstein and X Ren, ‘The Changing Right to the City: Urban Renewal and Housing Rights in Globalizing Shanghai and Mumbai’ (2009) 8 City and Community 407, 415.



Mumbai: Housing, Rights, Citizenship, Space  203

military force, as well as exclusive political and legal powers.19 These powers were expressed in their physical occupation of the city’s choicest land: a spatial dominance projecting colonial power. As Gyan Prakash writes: ‘[t]here was never any doubt that entry into this urban order was conditional on the acceptance of colonial authority’.20 Moreover, since there was ‘little likelihood that the poor could live this ideal of colonial urbanism’21 life in pre-Independence Bombay remained characterised by a series of divides between the formal, the colonial and the sovereign, on the one hand, and the informal, the native, the subject, on the other. By the first decade of the twentieth century, half the land in the Bombay area was owned by fewer than 500 individuals, with the majority of the remainder in government hands.22 As property ownership was determinative of political citizenship, from which followed the ability to exercise civic rights, spatial exclusion denoted political and civic exclusion.23 In 1914, only 1 per cent of the city’s population were entitled to vote.24 Moreover, the denial of these political and civil rights directly affected the material conditions of life for those excluded. As Sandip Hazareesingh details: While the city’s population was rising steadily, housing, particularly for the working classes, remained both inadequate and insanitary; access to water-supply and public transportation was spatially uneven; drainage and sanitation facilities were non-­ existent in the north of the city. Both the virulence of the plague outbreak of 1896 and the failure of the hastily set up Bombay Improvement Trust to sustainably ameliorate urban conditions by the time of the First World War, revealed the heavy social and environmental costs of the peculiar combination of extreme economic liberalism and political authoritarianism that lay at the heart of the urban colonial order; its hege­ mony presided over a minimalist conception of local government in which the restricted class location of political citizenship went hand-in-hand with municipal neglect of collective urban amenities.25

It was the coupling of spatial with civic and political exclusion that made the right to housing a cornerstone of the struggle for citizenship and independence in Mumbai. The demand for social rights was premised on their role in the enjoyment of civil and political rights for the poor. At the same time, the enjoyment of social rights was argued to rest on the curtailment of the property rights of the elites.26 Accordingly, in Mumbai, activism around decent housing as an entitlement can be found as early as the first decades of the twentieth century. The demand

19   S Hazareesingh, ‘The Quest for Urban Citizenship: Civic Rights, Public Opinion, and Colonial Resistance in Early Twentieth-Century Bombay’ (2000) 34 Modern Asian Studies 797, 798–99. 20  Prakash, Mumbai Fables above n 11 at 50. 21  Ibid. 22   Hazareesingh, ‘The Quest for Urban Citizenship’ above n 19 at 800. 23   Ibid 801. 24   Ibid 802. 25  Ibid. 26   Ibid 811.

204  Space for housing as a right arrived simultaneously with the demand for civil and political participation, a situation unique to India,27 and which still colours the interpretation of rights by the courts. Housing, along with other civic infrastructure such as public transport, was envisioned as the cornerstone for public participation and urban renewal. It was only with full democratic participation, it was argued, that adequate housing could be realised. And such housing was seen as an entitlement of citizenship, with responsibility for its denial always lying at ‘the doors of the Municipal Corporation’.28 The pre-Independence struggles for social inclusion that took place around claims for the right to housing resulted in concrete legal and political gains. These included specific laws intended to protect the poor from the exploitation of powerful land owners, such as strict rent control legislation,29 but also the very fact of social and political citizenship, hard fought and slowly gained. Nevertheless, as a result of the lure of Mumbai, and the poverty of rural India, the ‘pace and sheer scale’ of Mumbai’s urbanisation has been overwhelming,30 and the city’s infrastructure and its political organs have struggled to cope. Faced with successive waves of newcomers, the post-colonial Indian urban elite was motivated to find new methods of social and political control in the face of the city’s fresh mass electoral enfranchisement.31 Bombay’s huge population explosion of the 1970s and 1980s occurred in the context of the political upheavals and violence of the ‘emergency’ years of Indira Ghandi’s rule.32 At the same time, Bombay’s textile industry went into steep decline.33 These factors created ‘explosive social conditions’ which, for urban livers, were ‘marked by political unrest, crime, homelessness, squalor and disease’.34 And although the city authorities’ response to the growth of informal settlements has always fluctuated between waves of slum clearance, in situ upgrading and various formalisation strategies,35 illustrating that the right to a space in the city has not always been extended willingly to subsequent post  Ibid 812.   Ibid 806. 29   Bombay Rents, Hotel and Lodging House Rates Control Act no 57 of 1947 and Maharashtra Rent Control Act 1999, no 18, Acts of Parliament, 2000. 30   Centre on Housing Rights and Evictions, Women, Slums and Urbanisation: Examining the Causes and Consequences (COHRE, 2008) 10. 31   P Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York, Columbia University Press, 2004) 132. 32   P O’Connell, Vindicating Socio-economic Rights: International Standards and Comparative Experiences (Oxford, Routledge, 2012) 87–88. 33   S Sherlock, ‘Class Re-formation in Mumbai: Has Organized Labour Risen to the Challenge?’ (1996) 31 Economic and Political Weekly L34. 34  Chatterjee, The Politics of the Governed above n 31 at 134. 35   See eg, PK Das, ‘Manifesto of a Housing Activist’ in S Patel and A Thorner (eds), Bombay: Metaphor for Modern India (Bombay, Oxford University Press, 1995); G O’Hare and D Abbott, ‘A Review of Slum Housing Policies in Mumbai’ (1998) 15 Cities 269; G Singh and PK Das, ‘Building Castles in Air: Housing Scheme for Bombay’s Slum Dwellers’ (1995) 7 Economic and Political Weekly 2477. 27 28



Mumbai: Housing, Rights, Citizenship, Space  205

Independence migrants, the early 1980s were a particularly inhospitable time to be an informal settler in Mumbai. In 1981, Bombay’s authorities put in place ‘Operation Eviction’, an attempt to remove many thousands of informal dwellers who had colonised public lands, setting up their homes and businesses on the city’s pavements and highway verges.36 Many of these people had initially moved to the city to construct the very roads and pavements from which the state sought to evict them.37 Writing at the time, PA Sebastian detailed the events of the eviction: ‘They were hunted and picked up by the police as if they were dogs and flung into buses and trains, it was an inhuman and callous operation in the midst of monsoon’.38 Once again, the link between the right to housing, civic rights and the spatial aspect of the denial of land and property rights was central to the response to the evictions. Sebastian, for example, questioned whether, if ‘government has made life impossible for people who do not have a place to stay or the means to acquire such a place. Does this mean that only propertied people can be Indian citizens?’.39 These repressive and exclusionary tactics, undertaken in the monsoon season and with brute force, were met with a wave of protest. Amongst the protest strategies were campaigns for a constitutional amendment to enshrine a fundamental right to housing.40 While the attempt to amend the Constitution failed, the impact of the campaign was significant: ‘the housing issue became part of the national public and political discourse’.41 Meanwhile, despite the failure of the attempted constitutional amendment, another rights-based approach to housing was emerging through the judicial activism of the Indian Supreme Court. The growth of a constitutional jurisprudence on the right to housing in India can be traced to these events, and it is from these legal struggles that the powerful judicial statements on the right to life as a right to housing and shelter, including Olga Tellis42 and Chameli Singh43 discussed in Chapter 4, stem. Yet the contestation of space continues. The city swarms with people and ‘the insecurely housed poor are everywhere’.44 By 2003 the city, which occupies 437 square kilometres of land, had a population of approximately 11 million. The population density is the highest in the world, with 29,000 people per square kilometre: New York stands at 10,000 per square kilometre, and Shanghai 13,000.45 Over half of the residents live in informal settlements of one kind or another, from slum settlements, to run down and crumbling tenements, to the pavements   Das, ‘Manifesto’ above n 35 at 170.   PA Sebastian, ‘Operation Eviction’ (1981) Economic and Political Weekly 1526. 38  Ibid. 39  Ibid. 40   J Deshmukh-Ranadive, Housing the Poor: How Relevant are Human Rights? (New Delhi, TATA Institute of Social Studies Trust, 2009) 20. 41  Ibid. 42   Olga Tellis v Bombay Municipal Corporation AIR (1986) SC 180. 43   Chameli Singh and others v State of Uttar Pradesh and others (1996) 2 SCC 549. 44   Appadurai, ‘Spectral Housing and Urban Cleansing: Notes on Millennial Mumbai’ (2000) 12 Public Culture 627, 637. 45  Prakash, Mumbai Fables above n 11 at 330. 36 37

206  Space themselves. Today, there are around 2,500 individual ‘slum’ settlements, housing 5.5 to 6 million inhabitants, which sit on just 6 per cent of the city’s land. In total, almost 8.5 million of Mumbai’s inhabitants live in sub-standard, inadequate and unsafe housing, subject to an ‘ever-present threat of displacement’.46 Crumbling chawls and gently disintegrating colonial villas are crowded by informal tin and tarpaulin shelters. Railway verges, footpaths, rooftops, underpasses and other ‘interstitial’47 spaces are thickly colonised. Even in the most prosperous and wellestablished of informal settlements, where the dwellings consist of well-built structures several storeys high, with sturdy concrete floors and walls, the dwellings are crammed together with little ventilation or common space. The settlements occupy the most marginal lands: mangrove swamps, garbage hills, cemeteries, flood-prone tidal flats under high-tension power wires, and other lands ‘not suitable for human habitation’.48 While the city’s response to informal dwellers and their settlements may have been inconsistent, the underlying anxiety motivating the responses has always been wrapped up in the question of what it means to be a modern city. Whether a modern Mumbai is understood, on the one hand, as a city in which every Indian may seek his livelihood, no matter how poor or humble; or on the other hand, as a city clear of the vestiges of poverty and backwardness that characterise the ‘third world’ India, the spatial aesthetics of the city have been a key element in discourses of inclusion and exclusion, visibility and invisibility of the urban poor. In fact, the question of what it means to be a modern city appears, in Mumbai, to proceed on the assumption that to be a modern city it is sufficient to look like one. IV.  VISION MUMBAI AND THE PLANNING OF SOCIAL TRANSFORMATION

The quest to transform the colonial, industrial Bombay into the postmodern, global Mumbai is based, as Prakash writes, on a powerful narrative fable of transformation.49 The current plans for Mumbai’s regeneration are no exception. These can be found in the planning document, Vision Mumbai: Transforming Mumbai into a World-Class City.50 The Report was commissioned for the city in 2003, by Bombay First, a group of business leaders or, as Ananya Roy puts it, ‘an NGO of the elite’.51 It was 46   See PK Das, ‘Slums: the Continuing Struggle for Housing’ in S Patel and J Masselos (eds), Bombay and Mumbai: the City in Transition (New Delhi, Oxford University Press, 2003) 210. 47   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 44 at 636. 48   M Swaminathan, ‘Aspects of Poverty and Living Standards’ in S Patel and J Masselos (eds), Bombay and Mumbai: the City in Transition (New Delhi, Oxford University Press, 2003) 92. 49  Prakash, Mumbai Fables above n 11 at 23. 50   Vision Mumbai, above n 4. 51   Ananya Roy, ‘Civic Governmentality: the Politics of Inclusion in Beirut and Mumbai’ (2009) 41 Antipode 159, 174.



Vision Mumbai and the Planning of Social Transformation  207

produced with the ‘active participation’ of the Municipal Corporation of Greater Mumbai, the Mumbai Metropolitan Region Development Authority and the Government of Maharashtra, and created by McKinsey, the international consultancy firm.52 As such, the Report is a top-down, government and corporate-informed, vision of Mumbai’s shortcomings. Nevertheless, while the national, state and local governments are heavily invested in this project, even the ‘marginalised masses’, Arjun Appadurai argues, are anxious to ‘enter the world of consumption’ represented by it.53 The Report’s aim is to provide a blueprint from which to produce a gleaming new city: Mumbai will rise, phoenix like, from the slums and pollution, through a dramatic reconfiguration of space. Importantly, the new city will emerge not through planning alone, but through the adoption of a bold new mindset: at the outset, the Report characterises the failures of Mumbai as failures to believe in the possibility of its transformation.54 In this way, it echoes earlier attempts to dream a new Bombay into planned existence.55 Thus, the plans for a new Mumbai represent not so much architectural designs as profound longings projected onto the city’s map. The Report is positioned within a tradition of a rationalist urbanity, where efficiency is placed foremost, planning triumphs over nature, and administration, accountancy and the cash economy render a valuable life objectively measureable.56 Mumbai’s plans play on the understanding that the city represents modernity, and that such modern urbanity entails a rejection of traditional ways of living.57 Through the realisation of Vision Mumbai, the state aims to remake the city as a new Shanghai, New York or Sydney.58 A gleaming and efficient metropolis, Mumbai will then take its rightful place as a leader in the modern world. To that end, streets need to be cleared to enable more efficient traffic flows, while public space must be freed to make way for private investments and formal infrastructural projects. The spatial reorganisations required by global firms, the privatisation of public services, and the beautification of the city through the elimination of the visible poor, provide the guiding principles for the new vision of Mumbai. This gleaming and efficient ideal of the city appears in striking opposition to the frenetic current reality, and the unknowable, but chaotic and vibrant projected future of cities such as Mumbai. Thus, to achieve this longed-for transformation, Vision Mumbai will require a sweeping reconfiguration of the city’s spaces.   Vision Mumbai, above n 4 at vii.   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 44 at 643. 54   Vision Mumbai, above n 4 at vii. 55   ‘Bombay: Planning and Dreaming’, above n 5. 56   J Friedmann, ‘Cities in Social Transformation’ (1961) 4 Comparative Studies in Society and History 86, 88–89. 57   Y Blank, ‘The City and the World’ (2006) 44 Columbia Journal of Transnational Law 875, 886. 58   Vision Mumbai, above n 4 at 5. 52 53

208  Space Early twenty-first century readers may find many of the aims and means of Vision Mumbai pedestrian in their familiarity, based as they are on the logic of privatisation, the imposition of economic efficiencies and the ‘retreat’ of the state. Vision Mumbai proposes to boost economic growth;59 improve and expand mass and private transport infrastructure;60 ‘dramatically increase’ formal low income housing availability and affordability;61 upgrade pollution controls as well as basic and essential services;62 streamline building approvals;63 and make government run more like a corporation to boost its efficiency.64 The text of the Report conjures the authors’ imagined city of shining office towers housing Asia’s pre-eminent multinational corporations. Free-flowing expressways will lead to ordered avenues lined by spacious parks. Vision Mumbai’s front and back covers portray Mumbai’s foreshore at twilight. Neon signs dot the skyline, while people stroll on the promenade and sit on the sea wall. A few classic taxis pass by on the esplanade, which is separated from the sea by a neat row of palms. Vision Mumbai offers no hint of the bustle, chaos and noise of the informal settlements. The pictures avoid showing the thronging crowds who, in reality, jostle for a few precious feet of space on the pavements in order to build their houses, hawk their wares, or make their ways to the hubs of business and transport. Reading the report, and examining related plans such as the Slum Rehabilitation Authority’s Dharavi Redevelopment Project,65 it is evident that the new vision for Mumbai will require a drastic reordering of the city’s spaces, and that that reordering will involve a severe diminution in the visibility of the informal settlements. The most direct impacts on the poor and marginalised will result from the plan’s objective of reducing the number of informal settlers from the current 50–60 per cent to 10–20 per cent of the city’s overall population.66 Vision Mumbai contemplates achieving this through increase of land availability by 50 to 70 per cent,67 the construction of 800,000 new low cost housing units to rehabilitate existing informally housed communities,68 and the construction of 300,000 new low cost units to meet other demand.69 However, with more than 6 million residents living in informal settlements, the Report’s targets for rehabilitation fall far short of existing need if their objective is to be met. And in fact, the authorities freely acknowledge that ‘our aim is to get rid of   Ibid 13.   Ibid 16. 61   Ibid 19. 62   Ibid 23. 63   Ibid 27. 64   Ibid 1–2. 65  Maharashtra Slum Rehabilitation Authority, Dharavi Redevelopment Project, available at www.sra.gov.in/htmlpages/Dharavi.htm. 66   Vision Mumbai, above n 4 at 20. 67  Ibid. 68   Ibid 21. 69   Ibid 22. 59 60



Vision Mumbai and the Planning of Social Transformation  209

every illegal shanty in the city’.70 This aim underlies the state’s decision to make land available for Vision Mumbai’s infrastructure in advance, explaining the wave of evictions that swept the city in the immediate aftermath of the Report, rendering 300,000 people homeless.71 Importantly, the necessary spatial reorganisation will is accompanied by a profound re-conceptualisation of the right to the space of the city, and the housing rights discourse through which these rights have been negotiated. Significantly, the evictions accompanying the adoption of Vision Mumbai ‘carried neither the promise nor pretense of resettlement and rehabilitation’.72 In this way, the current plans are oddly reminiscent of pre-Independence Bombay. For example, Vision Mumbai closes with a plea to the reader: ‘Mumbai is a jewel in the crown of not only Maharashtra but also India. The jewel has, however, completely lost its lustre’.73 Vision Mumbai harkens back to the colonial era to ground itself as a restricted city where the exclusivity of space and belonging are, once again, mirrored in the exclusivity of access to citizenship and to political rights. It is a view that cities signify ‘the frontier of human civilization’74 in which the marginalised masses have no place. As such, the Report remains a highly contested piece of social planning, both for the vision it advocates and the processes it proposes to achieve them. The stark disjuncture between the ideal Mumbai and the current reality of the city adds fuel to the fire of conflicts over space and rights in the city. It is in this context that we can examine two ways in which housing and housing policies are being used as techniques of social control and manifestations of state power, which form the subject of analysis in the following sections. A.  Inclusion or Invisibility: City Beautification and Rights to Space Against the backdrop of Vision Mumbai, other struggles for city beautification and regeneration are also taking place. One example, in which the changing perception of the housing rights of the informal settlers plays a striking role, is the civil society campaign for the right to a clean environment. In this campaign, the right to a clean environment is pitted against the right to housing of the informal dwellers. The environmental agenda is advanced as ‘green’ and presented in opposition to the ‘brown’ needs of the poor.75 As Partha Chatterjee’s work reveals, the very emanation of this argument from ‘civil society’, which in 70   A Katakam, ‘For a New Mumbai, at Great Cost’ 22(2) Frontline Magazine, 15–28 January 2005, quoting Prakash Patil, Assistant Municipal Commissioner. 71   Roy, ‘Civic Governmentality’ above n 51 at 174. 72   Ibid 175. 73   Vision Mumbai, above n 4 at 32. 74   Blank, ‘The City and the World’ above n 57 at 886. 75   MH Zérah, ‘Conflict Between Green Space Preservation and Housing Needs: the Case of the Sanjay Gandhi National Park in Mumbai’ (2007) 24 Cities 122. See also M Gandy, ‘Landscapes of Disaster: Water, Modernity, and Urban Fragmentation in Mumbai’ (2008) 40 Environment and Planning 108, 116.

210  Space India represents an elite situated on the ‘high ground of modernity’76 pits it against the masses and the poor. In this elite discourse, the poor and their settlements are represented as pollution – a waste product that should be eliminated from India’s cities. Yet, even if one rejects the characterisation of the poor as the pollution of the cities, the contestation cannot be explained merely as one of class struggle. Implicit in the conflict is the tragic opposition of environment and development as played out in the drama of modernisation.77 The Indian judiciary’s embrace of this exclusive environmental agenda has entailed a striking rejection of its understanding of the place and worth of the informal dweller as a citizen and equal participant in the Indian polity, which had been one of the most compelling characteristics of the Supreme Court cases on the right to housing. While these housing rights cases stand as good law, as the subsequent environmental rights cases illustrate, other interests now motivate judicial decision-making. These new interests are at times fundamentally opposed to the right to housing for the informal dweller. In the city of Mumbai, much environmental activism has centred on the Borivili, or Sanjay Gandhi, National Park, which lies within the city. The park stretches over 100 square kilometres,78 providing a source of freshwater for the city, a vital green space and a habitat for wild creatures such as leopards.79 Despite the protected status of the Park, tens of thousands of people have settled and built homes and neighbourhoods within its precincts. In fact, the Park is now home to private dwellings and to industrial and commercial enterprises, including a government-run bacon factory, and several quarries.80 Environmental groups have responded to these incursions by petitioning the courts to remove the residents, characterised as illegal ‘encroachers’ responsible for contaminating open spaces and damaging the ecology.81 The long-running legal battle over the ‘encroachments’ on the Borivili National Park was eventually determined by the High Court of Bombay in Bombay Environmental Action Group and another v AR Bharati and others.82 Among other things, the court sanctioned the eviction and relocation of many thousands of people. ‘Protected occupiers’83 were to be allocated alternate  Chatterjee, The Politics of the Governed above n 31 at 41.   S Pahuja, ‘The Poverty of Development and the Development of Poverty in International Law’ in J Crawford and S Nouwen (eds), Select Proceedings of the European Society of International Law, vol 3, International Law 1989–2010: a Performance Appraisal (Oxford, Hart Publishing, 2012) 365. 78   Zérah, ‘Conflict Between Green Space Preservation and Housing Needs’ above n 75 at 122. 79   Ibid 123. 80   Ibid 125–6. 81   L Bavadam, ‘Encroaching on a Lifeline’ 20(4) Frontline Magazine, 15–28 February 2003. 82   Bombay Environmental Action Group (BEAG) and another v AR Bharati and others (2004) (5) LJSOFT 95, 26 Bombay HC of Judicature (Writ Petition no 305 of 1995). 83   That is, those who could prove continuous living in the Park in accordance with the legislatively established ‘cut-off date’ (ibid 39). For an analysis of the ‘cut-off date’ see J Hohmann, ‘Visions of Social Transformation and the Invocation of Human Rights in Mumbai: the Struggle for the Right to Housing’ (2010) 13 Yale Human Rights and Development Law Journal 135, 162–64. 76 77



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dwellings, albeit at significant distance from their existing neighbourhoods,84 and at significant personal cost.85 Those who could not prove their status as protected occupiers were characterised as trespassers. In a sharp divergence from Olga Tellis and the protections gained in the earlier housing rights cases, the court held that the authorities were not required to act in accordance with ‘procedure known as law’ when dealing with these residents.86 Such a statement may be a textually valid reading of Article 21 of the Constitution, which reads that: No person shall be deprived of his life or personal liberty except according to procedure established by law.

As such, Article 21 imposes procedural guarantees only where a person will be deprived of his life or liberty. However, the characterisation of these occupiers as trespassers, and thus as falling outside the protections of the Constitution, represents a significant diminution in the rights of informal dwellers in Mumbai, as well as a considerable shift in judicial rhetoric on the place and worth of slum and pavement dwellers in the city. The court held that: a person who has no right whatsoever, or who is unable to show any authority on the basis of which he is in possession or is found to be on property illegally or is a rank trespasser, cannot invoke the principle [of ‘settled possession’] and argue that he cannot be dispossessed.87

The turn to private property concepts and away from the precedent of the constitutional cases on the right to housing in this case is noteworthy in two respects. First, it illustrates the move from housing as a public (and thus public law) problem to housing in a private law paradigm. Secondly, it is reminiscent of the way the South African Constitutional Court has approached constitutional issues of housing through the use of administrative law principles, a move that has been much criticised and which has resulted in a less than robust protection of the right to housing under the South African Constitution.88 This statement must also be contrasted with the approach taken in the Olga Tellis case. In the judgment, then Chief Justice Chandrachud’s characterisation of the pavement dwellers, though touched with repulsion,89 is also filled with compassion and at times with respect. He describes the informal dwellers as pursuing ‘occupations which are humble but honourable’,90 and stresses that they ‘do not claim the right to dwell on pavements or in slums for the purpose of

  BEAG v AR Bharati, above n 82 at para 19(10)(o).   Ibid para 26(8).   Ibid 199. 87   Ibid 200. 88   See further Chapter 4, II. 89   Olga Tellis, above n 42 at 183. 90   Ibid 194. 84 85 86

212  Space pursuing any activity which is illegal, immoral or contrary to public interest’.91 The judgment also makes reference to the structural causes of inequality and poverty underlying the living situation of the pavement dwellers, noting that the link between livelihood opportunities and physical survival: explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life.92

In addition, the judgment characterises the drive to live on the pavements as one of compulsion: [i]t is a notorious fact of contemporary life in metropolitan cities, that no person in his senses would opt to live on a pavement or in a slum, if any other choice, were available to him. Anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth.93

Similarly, in the Nawab Khan case, Ramaswamy J noted that social democracy requires recognition that the dignity of the person is intertwined with liberty.94 The fulfilment of a ‘right to residence to the poor’95 underlies the full citizenship of India’s population. The case canvasses issues of socio-economic development for the poor, their exclusion, marginalisation, and even their vulnerability to exploitation by criminal gangs,96 noting the overall social purpose of the right to housing. As Ramaswamy J states, the right to housing should bring all poor Indians into society, to live as ‘an integrated social group so that social harmony, integrity, fraternity and amity would be fostered, [and] religious and caste distinction would no longer remain a barrier for harmonised social intercourse and integration’.97 However, now apparently overtaking this narrative of social inclusion through the right to housing, runs a counter-discourse of exclusion. Perhaps the most notorious of these cases is Almitra Patel v Union of India,98 which was brought as a public interest litigation to force the Delhi authorities to conceive of and implement a solid waste management system.99 In the judgment, the blame for Delhi’s pollution problems is placed squarely on the shoulders of the informal settlers, who ‘have no care for hygiene’100 and whose  Ibid.  Ibid. 93   Ibid 199. 94   Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan and others AIR (1997) SC 152, 163. 95   Ibid 163. 96   Ibid 164. 97  Ibid. 98   Almitra Patel v Union of India AIR (2000) SC 1256. 99   L Rajamani, ‘Public Interest Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability’ (2007) 19 Journal of Environmental Law 293, 296–97. 100   Almitra Patel, above n 98 at 1256. 91 92



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‘unauthorised colonies’ are blamed for the failure of the city to deal with its waste. Thus: The number of slums has multiplied in the last few years by geometrical proportion. Large areas of public land, in this way, are usurped for private use free of cost . . . The promise of free land, at the taxpayers cost . . . is a proposal which attracts more land grabbers. Rewarding an encroacher on public land with [a] free alternate site is like giving a reward to a pickpocket . . . [M]ore and more slums are coming into existence. Instead of ‘Slum Clearance’ there is ‘Slum Creation’ in Delhi. This in turn gives rise to domestic waste being strewn on open land in and around the slums. This can best be controlled at least, in the first instance, by preventing the growth of slums.101

Accordingly, the Supreme Court ordered that the landholders remove the informal settlers, and hand the sites back to the authorities ‘free from all encumbrances’,102 within which term the Court clearly included the residents. Moreover, the land was to be released free of charge, to be used as land-fill and compost sites.103 The implication is that Delhi’s informal dwellers are more troublesome and less valuable than rubbish. It is a clear recharacterisation of the informal dwellers. Olga Tellis portrayed these communities as marginalised citizens, struggling to eke out a living in the most appalling circumstances.104 Almitra Patel and the Borivili Park litigation now depict informal settlers as encroachers and polluters: ‘economic migrants’ at best, criminals at worst.105 Paradoxically, it is the middle and elite classes, those consumers and disposers of luxury and surplus goods, who in these visions are cast as the saviours of the environment, while the poor, who have little to throw away, are pictured as the generators of public waste.106 A second paradox is represented by the fact that the formally housed middle classes and elites have ‘encroached’ on various public spaces of India’s cities themselves, including on Mumbai’s Borivili National Park, without being subjected to similar hostile rhetoric or legal removal strategies.107 As Darshini Mahadevia and Harini Narayanan note, ‘the argument about violation of law by the slum-dwellers is just an expression of intolerance towards the poor, not intolerance towards the violation of law’.108   Ibid 1258–59.   Ibid 1261. 103  Ibid. 104   Ogla Tellis, above n 42 at 183–84. 105   The categorisation of informal dwellers as ‘polluters’ is doubly objectionable given India’s history of a discriminatory caste system in which the ‘lowest’ castes are considered to be ‘polluted’ and thus denied (both spatially and politically) many rights. See S Narula, ‘Equal by Law, Unequal by Caste: the “Untouchable” Condition in Critical Race Perspective’ (2008) 26 Wisconsin International Law Journal 255, 272. 106   Despite their high population density, informal dwellers generate considerably less waste than their middle class neighbours. One study found that the ‘high income group’ generated three times as much solid waste as those in the ‘slums’. See Rajamani, ‘Public Interest Litigation in India’ above n 99 at 302. 107   Zérah, ‘Conflict Between Green Space Preservation and Housing Needs’ above n 75 at 129–30. 108   D Mahadevia and H Narayanan, Shanghaing Mumbai: Politics of Evictions and Resistance in Slum Settlements (Ahmedabad, Centre for Development Alternatives, 1999) 32–33. 101 102

214  Space The real issue that emerges is not that the land is occupied at all, but by whom it is occupied. Thus while the judicial statements on the right to housing versus the right to a clean environment appear at first blush as discourses of inclusion for the poor through housing, versus discourses of exclusion for the sake of the environment, they are in fact arguments about rightlessness and invisibility, not inclusion or exclusion. This becomes clear when we recognise that ‘the excluded’ is not an accurate term. Informal settlers are in fact inherent – a ‘part of the system’ of capital and labour109 – that makes the city turn. The elites express no desire to be rid of their domestic help and cheap construction labourers. And in fact, the informal dwellers of Mumbai are integral to the city’s cultural, social and economic functioning. The jobs they fulfil, though at times low skilled or poorly paid, are crucial to the city’s continued running. As a prominent housing rights advocate put it: The city of Mumbai can’t survive without the slum dwellers. Your drivers of all the cars stay in slums. Your maidservants that come to your houses, stay in slums. Many of the police constables stay in slums, bus drivers stay in slums, a whole range of people – the clerks in the offices stay in slums. You remove all the slums and the city will come to a halt.110

Mumbai’s informal settlements do not constitute backwaters of economic stagnation. Rather, they are thriving economies, full of drive, enterprise and ‘the spirit for survival’.111 For example, the Dharavi slum settlement, covering 175 hectares and home to 800,000 people,112 is estimated to generate £700 million in economic output per year.113 The informally housed also fulfil jobs as sweepers and manual scavengers, occupations which are menial yet critical in a city which has ‘never been able to provide the most basic services to all its population’.114 Moreover, informality does not always equate with poverty. The inhabitants of these ‘slum’ areas may be members of Mumbai’s middle class, its urban commuters: ‘well-dressed clerks, nurses, postmen, bank tellers, and secretaries’.115 In addition, the informal settlements are hotbeds of industry, filling the city’s needs for recycling and waste disposal, manufacturing and services.116 Nevertheless, ‘all maps of the city leave these places blank’117 and so the informally housed exist at the site of contradiction: their sheer presence cannot be ignored, yet they exist always at – or beyond – the edges of the city’s official version of itself. They are a rightless and invisible pool of labour: ‘in the city but not a part of it’.118   P Marcuse, ‘From Critical Urban Theory to the Right to the City’ (2009) 13 City 185, 190.   Anonymous Housing Rights Advocate, personal interview, Mumbai, 17 October 2007. 111  Prakash, Mumbai Fables above n 11 at 338. 112   Ibid 337. 113   D McDougall, ‘Waste Not, Want Not in the £700m Slum’, The Observer, 4 March 2007. 114   Gandy, ‘Landscapes of Disaster’ above n 75 at 108. 115   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 44 at 636. 116   McDougal, ‘Waste Not, Want Not in the £700m Slum’ above note 113. 117   D Harvey, ‘The Right to the City’ (2008) 53 New Left Review 23, 35. 118   Friedmann, ‘Cities in Social Transformation’ above n 56 at 89. 109 110



Vision Mumbai and the Planning of Social Transformation  215

The denial of the place, even being, of the informal dweller is strikingly illustrated by the attempts of civil society groups to deny the rights of informal settlers not only to occupy particular plots of land, but also to be acknowledged as citizens of Mumbai. Such campaigns are based on ‘the perception that the poor are illegal anyway’, and ‘so have no rights’.119 For example, in 2004, a group of ‘prominent’120 citizens of Mumbai petitioned the courts to deny slum dwellers the right to vote, arguing that it was necessary to update the electoral list, ‘deleting all names of encroachers on railway compounds, footpaths, playgrounds and other places reserved for public purposes’.121 In 2005, the city’s Municipal Corporation approached the Chief Electoral Officer to have the residents of demolished slums struck from the voting register.122 In Mumbai, when middle class interest groups campaign to deny not only the rights of informal settlers to occupy particular plots of land, but also to be acknowledged as citizens of Mumbai, it is an attempt to erase the informal dwellers, and their presence, from the city. These erasures are an explicit example of the denial of humanity that can be wrought through the refusal to grant or recognise rights.123 For, if the rights of informal settlers in Mumbai are denied, it is both a symptom of, and a permission for, their fellow citizens to cease to value them – in fact, to cease to see the informal poor as human beings at all.124 It is the production of ‘rightlessness’ by ‘the acts of bare sovereignty that simply refuses to accept certain claims to being human and having human rights in the first place’.125 Moreover, while the arguments seeking to exclude the poor from Mumbai may appear to be forms of social engagement though ‘civil society’ and community building endeavours, they are in fact forms of social severance: what Nick Ellison and Roger Burrows describe as a ‘proactive politics, but a form of politics that has the key objective of disengagement;126 that is, the city elites and middle classes seek to retreat from the trouble of the poor. They reject the reality that the problems of the poor are problems of the city and of society as a whole and, in so doing, they not only reject the social citizenship of the informal dweller, but also manifest their own diminished role as social citizens.   U Ramanathan, ‘Demolition Drive’ (2005) 23 Economic and Political Weekly 2908, 2912.   P Sainath, ‘The Unbearable Lightness of Seeing’, The Hindu, 5 February 2005. 121   D D’Monte, ‘Banning the Majority from Voting’, Infochange, 14 October 2004, available at http://infochangeindia.org/200410205457/Governance/Analysis/Banning-the-majority-from-voting. html. 122   Roy, ‘Civic Governmentality’ above n 51 at 174; Sainath, ‘The Unbearable Lightness of Seeing’ above n 120. 123   P Williams, ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard Civil Rights–Civil Liberties Law Review 401, 416. 124  Ibid. 125   U Baxi, ‘The Protection of Human Rights and the Production of Human Rightlessness’ in R Peerenboom et al (eds), Human Rights in Asia: a Comparative Study of Twelve Asian Jurisdictions, France and the USA (Abingdon, Routledge, 2006) 386. 126   N Ellison and R Burrows, ‘New Spaces of (Dis)engagement? Social Politics, Urban Technologies and the Rezoning of the City’ (2007) 22 Housing Studies 299, 306. See also Harvey, ‘The Right to the City’ above n 117 at 32. 119 120

216  Space For if, as Henri Lefebvre argues, ‘urban life suggests meetings, the confrontation of differences, reciprocal knowledge and acknowledgement (including ideological and political confrontation)’;127 if a ‘city is a projection of society on the ground’,128 or if, as Rousseau was at pains to point out, citizens make cities,129 then the drive to exclude and to strip the rights from the poor and the informal dweller is an act that diminishes the city and repudiates what makes urban life distinct and alluring. It is a drive not to make a new city, but to deny the city and make it a different type of place altogether. Rather than a city, those who reject the citizenship of the poor seek to transform the space of the city into what Lefebvre identifies as a ‘ghetto of wealth’.130 However, the attempt to render the informal settlers invisible is in itself a tacit admission that the ‘most powerful manner in which to assert urban citizenship’ is ‘through physical presence’.131 Even when citizenship is profoundly unequal, the very existence of the poor and their interactions with the privileged operates as a ‘compact of citizenship as a specific distribution of various kinds of power in society’.132 The desire to make invisible is a desire to deny any commonality, a point taken up in the final Part of this book. Moreover, despite the powerful judicial statements on the right to housing contained in Chameli Singh, Olga Tellis and Nawab Khan, a discourse of inclusion may not be able to effectively counter such strategies of invisibility. It is here that we stumble upon the limitations of an understanding of the right to housing as inclusion in the formal built environment. If the right to housing is understood merely as a right to inclusion in formal housing we encounter several problems. The first is that a right to housing based on inclusion is not able to adequately counter discourses and practices of inclusion that remain, nonetheless, unequal. This is because the discourse of inclusion and exclusion profoundly mistakes the relationship between the planned, modern, formal and the unplanned, backward, informal. In actuality, the informal dwellings and neighbourhoods of Mumbai are ‘not alien to modern Bombay but its inanimate other; they [hold] up a mirror to elite spaces, reflecting the grotesque other side of colonial and capitalist spatialization’.133 This realisation highlights Peter Marcuse’s point that calls for inclusion of the ‘excluded’ misread the fact that the ‘excluded’ are no such thing. They are, 127   H Lefebvre, Writings on Cities (E Kofman and E Lebas (eds and trans), Malden, Blackwell, 1996) 75. 128  Ibid 109. See also G Frug, City Making: Building Communities Without Building Walls (Princeton, NJ, Princeton University Press, 1999) ch 6. 129   J-J Rousseau, ‘The Social Contract’ in Social Contract: Essays by Locke, Hume and Rousseau (Oxford, Oxford University Press, 1962) 169, 181 n 5. 130  Lefebvre, Writings on Cities above n 127 at 140. 131   T Coggin and M Pieterse, ‘Rights and the City: an Exploration of the Interaction Between Socio-economic Rights and the City’ (2011) Urban Forum 1. 132  J Holston, Insurgent Citizenship: Disjunctions of Democracy and Modernity in Brazil (Princeton, NJ, Princeton University Press, 2008) 16. 133  Prakash, Mumbai Fables above n 11 at 66.



Vision Mumbai and the Planning of Social Transformation  217

rather, integral to the system.134 They may be excluded from benefits, rights and protections, but they are nonetheless the other pole on the axes where power, domination and exploitation are located. Thus, calls to ‘include’ the informal settlers of Mumbai ignore that these citizens are, in fact, already an inherent part of Mumbai’s functioning, albeit in a manner where they remain profoundly marginalised in rights. Accordingly, it is clear that such marginal inclusion does not necessarily pave the way for the realisation or enjoyment of rights in fact. Sarah Charlton’s work in South Africa shows that even though the receipt of a formal house normally results in an enhancement in basic living conditions, it remains unclear that such provision is a ‘platform for the further development of or improvement of peoples’ lives’.135 Likewise, Nikhil Anand and Anne Rademacher argue that, in Mumbai, the promise of the recognised right to housing (however rarely delivered) that comes with life in the formal sector has induced millions of informal settlers ‘to leave unopposed the contemporary, and yet quite unequal, processes of urbanization and settlement redevelopment through which their formalized housing materializes’.136 The provision of a house in the formal sector may thus act not only as a floor, but a ceiling, on the realisation of rights when it is understood that inclusion has ‘supplanted’ equality as the ‘guiding aspiration for urban development’.137 In this way housing, and the rights it entails, can become increasingly inclusive and simultaneously increasingly unequal.138 Secondly, inclusion can be a move that neutralises the inherent power of visibility. Formally housing the poor can be an act of sovereign power and control over both territory and people. The state employs two techniques: it either makes the informal citizen like the formal or makes her disappear. In either case, state power is reproduced through the state’s capacity to construct and define both what is legitimate, and what is illegitimate.139 In this way, inclusion in a state’s housing policy can both enact state power over territory and citizen, and serve to defuse the critical power inherent in the very fact of informal settlements and the inequality they represent. It is to these points I turn next. B.  Territory, Rights and Control: Governing the Space of the City The state’s role in housing provision, and its control over housing provision by other actors, illustrates two specific links between sovereignty and space.   Marcuse, ‘From Critical Urban Theory to the Right to the City’ above n 109 at 190.   S Charlton, ‘Housing for the Nation, the City and the Household: Competing Rationalities as a Constraint to Reform?’ (2009) 26 Development South Africa 301, 306. 136   Anand and Rademacher, ‘Housing in the Urban Age’ above n 17 at 1762 (emphasis in original). 137   Ibid 1751. 138   Ibid 1752. 139   Ananya Roy, ‘Urban Informality: Toward an Epistemology of Planning’ (2005) 71 Journal of the American Planning Association 147, 149. 134 135

218  Space First, the assertion of state sovereignty territorialises space; that is, it is the establishment of sovereignty over space that turns space into territory: it overlays the geographical features of the landscape with a ‘framework’ of power, within which the authority of the state is exercised.140 Secondly, territory must be ‘spatialised’: the state must establish control, authority and power – that is, sovereignty – over the geographical area of its territory.141 The state’s actions over the territory and space of the city can be seen as acts of sovereignty, as through these acts the state itself is formed. As such, a city can function as the site where the state constitutes itself, displaying its power over both space and population. As Rachel Kallus and Hubert Law Yone note, the provision of housing can be an ‘efficient tool to lay claim to territory and to consolidate control over it’.142 Taking control of the city is a test of the state’s ability to take care of its population through the provision of infrastructure and social goods.143 But at the same time, such provision is a manifestation of state power. As such, efforts to remake the city of Mumbai should be seen as assertions of state sovereignty over the territory of the city. In order to reproduce and inscribe its power, the state uses its capacity to construct and define legitimacy and illegitimacy. This may occur through managing different interest groups, since the city is the site where groups with different motives and visions of society vie to capture state power, as was evident in the example of the contestation of rights to housing versus rights to a clean envir­ onment examined above. It may also involve managing the population as a whole. Both are efforts of governance, understood as the ‘capacities of, and aspiration towards, organization, coordination and control’144 by the state. Thus, the provision of housing, and state housing policies, are employed as techniques of governance to control and discipline citizens and their practices of citizenship. Housing policy in Mumbai vividly illustrates the way practices of sovereignty and governance can be pursued through the management of space, housing and rights. In Mumbai, such practices are carried out in light of complementary assumptions that unplanned spaces such as the informal city always present a threat to the power and control of the state,145 while the very power of modern space lies in its having been planned. Planned space is seen to contain the

140   Nationality Decrees in Tunis and Morocco PCIL Rep Series B no 4 (1923); (France, pleadings) Series C no 2, 106, 108. 141   R Kallus and H Law Yone, ‘National Home/Personal Home: Public Housing and the Shaping of National Space in Israel’ (2002) 10 European Planning Studies 765, 767. 142   Ibid 766. 143   Ibid 765. 144   S Legg, ‘Governance: Part II’ in John J Agnew and James S Duncan (eds), The Wiley-Blackwell Companion to Human Geography (Oxford, Blackwell, 2011) 347. 145  M Foucault, ‘Panopticism’ in P Rabinow (ed), The Foucault Reader: an Introduction to Foucault’s Thought (London, Penguin, 1991) 208–9.



Vision Mumbai and the Planning of Social Transformation  219

possibility to civilise and pacify,146 to ‘bind the citizen to the national polity’147 through the relationship of the citizen to space. In short, planned space is where ‘the state acts to constitute the new society’.148 However, the state’s efforts to manifest its power over the city are undertaken in the face of continual insurrections and revolts, which must be contained and neutralised. It is the risk of these insurrections, and the contrast with their potential containment through planning, that lies behind and motivates the modernisation and reorganisation of space in the city of Mumbai. The informal city always exists outside of and despite the formal city. Demolitions and evictions merely result in continued rebuilding efforts.149 And the failure to provide infrastructure from clean water to schools has only resulted in the provision of these goods outside of the state, whether through residents’ associations or criminal networks.150 These supplementary networks are based on alternate loyalties and patronages: to structures of faith, to caste and clan, or to criminal organisations,151 and entail allegiances which come to mimic citizenship. Such other citizenships can substitute for, and are at times hostile to, the state.152 Indeed, as Chatterjee notes, ‘there is always more than a hint of violence’ on both sides in the political negotiations between the state and the urban poor.153 On the state’s side is the violence of sovereign power, but on the side of the informal, there is the ‘counterpower’ of the ungovernable multiplicity, prone at any point to erupt in revolt and resistance.154 The informal city does not only escape the continued governance techniques of planned space, but even undertakes acts of sovereign creation of its own. The urban poor have long been permitted to ‘inhabit, settle and convert previously uninhabitable wetlands in the city’s frontier regions. Through such “urban pioneering”, Mumbai’s wetlands have been rendered habitable by the poor’.155 It is only through such acts of ‘autoconstruction’156 that wetland areas have been made into developable land that can be used by the state.157 In defiance of their physical marginalisation, the informal dwellers constitute their own territory in ways that the state always fails to prevent, and can only control by ex post facto sovereign confiscations. Such acts represent a challenge not only to governance 146   N Elias, The Civilizing Process: Sociogenic and Psychogenetic Investigations, rev edn (Edmund Jephcott (trans), Blackwell, Malden, 2000) 43. 147   J Flint, ‘Cultures, Ghettos and Camps: Sites of Exception and Antagonism in the City’ (2009) 24 Housing Studies 417, 418. 148   Kallus and Law Yone, ‘National Home/Personal Home’ above n 141 at 770. 149   M Davis, Planet of Slums (London, Verso, 2006) 99. 150   Roy, ‘Civic Governmentality’ above n 51 at 163. 151   See N Alsayyad and A Roy, ‘Medieval Modernity: On Citizenship and Urbanism in a Global Era’ (2006) 10 Space and Polity 1. 152   Ibid 3. 153  Chatterjee, The Politics of the Governed above n 31 at 139. 154   Foucault, ‘Panopticism’ above n 145 at 209. 155  P Goodrich, ‘First We Take Manhattan: Microtopia and Grammatology in Gotham’ in A Philippopoulos-Mihalopoulos (ed), Law and the City (New York, Routledge, 2007) 274. 156  Holston, Insurgent Citizenship above n 132 at 6, 8. 157   Anand and Rademacher, ‘Housing in the Urban Age’ above n 17 at 1755 (references omitted).

220  Space but to sovereignty itself, as the fact that the sovereign functions of a state can be performed by other entities is, ‘precisely the characteristic feature of the legal situation pertaining to those parts of the globe which, like . . . lands without a master, cannot or do not yet form the territory of a State’.158 The creation, subjugation and occupation of the land by informal settlers is, thus, an act of mastery in defiance of the exclusive sovereignty of the state. The informal city does not only escape the physical control of the state. In it also lie the possibilities of other versions of how Mumbai might be. Thus, the practices of sovereignty and governance that accompany Vision Mumbai can be seen as forms of internal social control and ideological colonisation. Vision Mumbai can be interpreted as a project aimed at promoting centrifugal forces that bind the citizen to the state and to its authorised imaginings of the future. For example, the state represents the modernisation and formality that comes with Vision Mumbai as the opportunity ‘to participate in a thriving real estate market’,159 playing on the desire of all Mumbai’s residents to participate in the modern culture of consumption.160 Moreover, the recognised billing address that comes with formal housing ‘helps align urban dwellers with the administration of the urban system’.161 More sinisterly, formalisation may exacerbate poverty through its associated costs, such as taxes and utilities charges,162 thus diminishing the resources of time, money and energy the poor have to devote either to resisting the state or investing their allegiance in other patrons. It must be recognised, however, that informal housing is not free, given that access to it is generally mediated through criminal networks, religious bodies or other networks and associations to which payment is also due.163 Yet the Indian executive and legislative governments’ weakness has led to their apprehension that, in India, it may be ‘impossible to govern effectively at all’.164 As such, the participation of the Indian Supreme Court in the governance of the Indian state has been important. The Supreme Court’s governance role is widely acknowledged by commentators,165 and by the Justices themselves. Writing extra-judicially, then Supreme Court Chief Justice Balakrishnan described the Court’s significant contribution to good governance in India, which he defined as ‘the task of running the government effectively’.166 The way the Court has embraced this governance function can be seen throughout both 158   Islands of Palmas Case (Netherlands v United States), Permanent Court of Arbitration, Huber Sole Arbitrator (1928) 2 RIAA 829. 159   Anand and Rademacher, ‘Housing in the Urban Age’ above n 17 at 1762–23. 160   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 44 at 643. 161   S Charlton, ‘Housing for the Nation, the City and the Household’ above n 135 at 301, 303. 162   Ibid 305. 163  Davis, Planet of Slums above n 149 at 41–42. 164   P Brass, ‘How Political Scientists Experienced India’s Development State’ in LI Rudolph and JK Jacobson (eds), Experiencing the State (New Delhi, Oxford University Press, 2006) 122. 165   PB Mehta, ‘The Rise of Judicial Sovereignty’ in S Ganguly, L Diamond and MF Plattner (eds), The State of India’s Democracy (Baltimore, MD, John Hopkins University Press, 2007) 110. 166   KG Balakrishnan, ‘Good Governance in International Law: an Indian Perspective’ (2007) 32 South African Yearbook of International Law 25, 25.



Vision Mumbai and the Planning of Social Transformation  221

the housing rights cases and the environmental rights cases discussed in this chapter. This governance role is particularly notable given the strength of the Court. In marked contrast to the ‘decay’ of the executive and legislative branches,167 the judiciary remains an institution whose ‘Delphic pronouncements carry almost mythical power’.168 In light of this relationship, the Supreme Court has often worked to uphold the central, though unfulfilled, aims and initiatives of the legislature and executive, acting in accordance with the ‘logic of the state’.169 It is this relationship between the Indian Supreme Court and the other branches of government that best explains the changing judicial characterisation of informal settlers in India’s rapidly urbanising cities. Thus, as Mumbai repositions itself as a ‘modern’ power in the global market, the judiciary has retreated from the protections associated with social provision in the welfare state.170 Streets need to be cleared to enable more efficient traffic flows, while public space must be freed from encumbrances to make way for private investments and formal infrastructural projects. Former public services such as housing must move from a paradigm dominated by rent controls to one premised on the fact that markets should be left to do their work, and consequently that the judiciary should not redistribute land and housing to the poor through an interpretation of human rights that includes a pro-poor right to housing. Legal cases across India now show the judiciary’s participation in this reordering of space and rights. In Malpe Vishwanath Acharya v State of Maharashtra,171 the Supreme Court held that Mumbai’s Rent Control Act, which freezes rents at 1940s levels,172 is arbitrary and unreasonable.173 Although it is widely recognised that overly severe rent control has been detrimental to the construction of rental housing in Mumbai’s formal sector,174 the law has immense symbolic importance to Mumbai’s residents. It represents the culmination of the pre-Independence history of social struggles in which civic rights, including the right to housing, were viewed as central to the question of citizenship. The judicial repudiation of the Rent Control Act can thus be read as a repudiation of the value of that struggle.

  Brass, ‘How Political Scientists Experienced India’s Development State’ above n 164 at 122–23.  B Rajagopal, ‘The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’ (2005) 18 Leiden Journal of International Law 345, 301. 169   B Rajagopal, ‘Judicial Governance and the Ideology of Human Rights: Reflections from a Social Movement Perspective’ in C Raj Kumar and K Chockalingam (eds), Human Rights, Justice, and Constitutional Empowerment (New Delhi, Oxford University Press, 2007) 212. 170  See Saskia Sassen, Territory, Authority, Rights, updated edn (Princeton, NJ, Princeton University Press, 2006) 285 and more generally ch 6. 171   Malpe Vishwanath Acharya v State of Maharashtra AIR (1998) SC 602. 172   Maharashtra Rent Control Act 1999, above n 29. 173   Malpe Vishwanath, above n 171 at 617. 174   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 44 at 638–39. 167 168

222  Space Even when such legislation is not rejected outright, the Supreme Court’s interpretation of its purpose has shifted. In Joginder Pal v Naval Kishore Behal,175 Lahoti J stated that, in spite of the fact that Mumbai’s rent control legislation was constructed to benefit the tenant, when interpreting those provisions that ‘take care of the landlord’ the Court should ‘not hesitate in leaning in favour of the landlords’ as ‘landlords too are weak and feeble and feel humble’.176 In reality, urban landholdings in Mumbai are tremendously concentrated in the hands of a small number of powerful owners.177 In light of this fact, the Court’s preference for landlords over tenants is a further illustration of a jurisprudence that turns away from the poor. Thus, in the state’s plans for Mumbai as a market friendly, aesthetically modern ‘world class’ city, the judiciary’s governance role now expresses itself in favour of the business interests of landlords, the spatial reorganisations required by global firms, the privatisation of public space and services, and the beauti­ fication of the city. It is these visions of transformation that result not only in the reorganisation of space, but in the diminution of rights once guaranteed to the informal settlers. Nevertheless, the fact that the repeal of the Rent Control Act in Maharashtra has proved impossible in the face of political opposition,178 reminds us that the state’s acts of governance are often resisted, and ever escape its efforts of control. Yet, at the same time as the state may be apprehensive about the challenges to its power and control actually represented by the unruly citizens of the city’s informal sector, discourses of insecurity can serve to reinscribe the state’s sovereign power. Projecting insecurity can suggest that, in fact, only the state can protect deserving, formal, citizens from the disorderly masses. It is in this context that evictions, demolitions and exclusions can come to be seen as fair and legitimate, protecting ‘proper’179 citizens from the dangerous and undesirable. The use of such evictions and demolitions, whether mediated through the judiciary or not,180 also illustrates the direct and continuing power of the state. The ‘lengthening distance’ Saskia Sassen identifies between the state and the citizen181 does not, in fact, entail a less powerful state. That the citizens and the state operate under a ‘reduced set of interactions’ and that the citizenry enjoy a more limited range of entitlements based on their formal citizenship182 does not   Joginder Pal v Naval Kishore Behal (2002) 5 SCC 397.   Ibid 404. 177   S Patel, ‘Bombay/Mumbai: Globalization, Inequalities, and Politics’ in J Gugler (ed), World Cities Beyond the West: Globalization, Development and Inequality (Cambridge, Cambridge University Press, 2004) 340 (noting that fewer than 100 landlords own more than half the vacant land in the possession of private builders in Mumbai). 178   Appadurai, ‘Spectral Housing and Urban Cleansing’ above n 44 at 638–39. 179  Chatterjee, The Politics of the Governed above n 31 at 131. 180   Zérah notes that many of the evictions in the Borivili National Park were carried out well in advance of the court order sanctioning them, ‘Conflict Between Green Space Preservation and Housing Needs above n 75 at 130. 181  Sassen, Territory, Authority, Rights above n 170 at 319. 182   Ibid 319. 175 176



Conclusion  223

equate to a diminished sovereignty for the state. Rather, the decision to mediate its relationship with the population through a privatised public policy such as represented by Vision Mumbai represents the marshalling of state power behind a particular view of how that power should be inscribed. The ‘modern’ city imagined in Vision Mumbai remains one in which state power is central. That power, however, is achieved through a spatial logic of physical reconfigurations brought about through professionalised, and privatised, planning. It is in the power of planned, controlled space that the appeal of Vision Mumbai lies. The longed for city of gleaming buildings, efficient transport networks and free-flowing capital offers a powerful fantasy of an orderly and – more importantly – ordered city. It offers the illusion that ‘new social relations will spring, more or less spontaneously’ from new architectural forms.183 Yet in this hope we also encounter the limits of a vision of society that is organised solely around the concept of space. It is to these limitations that I now turn. V.  CONCLUSION: THE BOUNDARIES OF SPATIAL ANALYSIS AND THE POSSIBILITIES OF THE RIGHT TO HOUSING

A spatial understanding of rights that reduces the right to housing to the built structure of the house can only offer a partial response to efforts to use housing as a tool of social control and social engineering. Such a reductionist understanding of the right to housing concentrates only on the material level: the existence of the house as such, or, more broadly but not more deeply, on planning the built environment (that is, on housing in the aggregate). In such a purely spatial logic, the emphasis is firmly on the aesthetic and the visual. Roy notes that, in these visions, ‘what is redeveloped is space, the built environment and physical amenities rather than people’s capacities or livelihoods’.184 Spatial logics thus rely on the assumption that changes to the built environment will necessarily, and often singlehandedly, generate social and political change.185 Accordingly, there is a tendency to substitute spatial reorganisation for actual political change.186 Spatial solutions to social problems have long appealed in Mumbai, where a series of transformative city plans have been based on a turn away from political and social solutions to poverty and marginalisation, which have been sought instead through spatial reordering.187 Yet, providing formal housing will only ‘solve’ informality if informality is actually the result of a lack of housing, not the result of other structural factors, of which housing is only 183   L Bennett, ‘Do We Really Wish to Live in a Communitarian City?: Communitarian Thinking and the Redevelopment of Chicago’s Cabrini-Green Public Housing Complex’ (1998) 20 Journal of Urban Affairs 99, 114. 184   Roy, ‘Urban Informality’ above n 139 at 150. 185   Bennet, ‘Do We Really Wish to Live in a Communitarian City?’ above n 183 at 114. 186   Marcuse, ‘From Critical Urban Theory to the Right to the City’ above n 109 at 195. 187   See SN Singh, Development in Bombay above n 5; ‘Bombay: Planning and Dreaming’, above n 5.

224  Space one manifestation.188 Such other factors are, however, all too apparent in Mumbai. They include global capital flows unequally matched to global labour flows, uneven geographic distributions of wealth and opportunity, and the continuing effects of prejudice and discrimination based on caste, colour, class, religion and ethnicity: factors with a root cause that goes far beyond housing. In addition, the social change that is possible through spatial inclusion in the formal city is itself limited. Even the most generous and benevolent housing rights cases, which are based on including the informal settler, offer only two possibilities. Either the informal settlers must become like ‘us’, part of the ‘integrated’ social group, ‘harmonised’ with greater society (as Ramaswamy J put it in Nawab Khan)189 or they must be removed. In both these visions, housing is something that must be ‘done’ or ‘given’ to the population as part of the process in which they conform to the correct understanding of the city, and of their proper place in it. There is little recognition of a right to housing that expresses the good or valuable in the distinct ways of living offered by informality. As Vision Mumbai shows, the imagined future of Indian cities is one in which the pavement dweller, the slum citizen and the poor tenant have no visible place. The history of the right to housing in Bombay/Mumbai has, at times, been one in which the quest for full and equal citizenship for those who were not like the powerful dominated. Yet when cast in the terms of inclusion in the city, the right to housing has become about the right to be accommodated for the benefit of the powerful in the profoundly unequal city. Yet the chaotic, vibrant and ungovernable reality of life in Mumbai illustrates the very refusal of the slum and pavement dwellers to submit to this vision other than on their own terms. The agency – even sovereignty – of the masses allows us to ‘annihilate the myth of historical progress’190 on which the conviction of plans like Vision Mumbai rest. This reality allows us to respond to the state’s heavy-handed use of ‘governance’ in a way in which it is assumed that some casualties (always among the poor and marginalised) are to be expected in the pursuit of development,191 and that the costs of development, in lives, livelihoods and housing opportunities, are actually benefits.192 However powerful the spatial approach to rights may be, it is limited in its understanding of the interconnections between people and the space they inhabit. Thus, if we seek to find a justification for the right to housing that overcomes actual inequality, marginalisation and alienation we must look beyond the material provision of a house to the social goods that flow through housing. 188   C Marx, ‘Supporting Informal Settlements’ in F Khan, and P Thring (eds), Housing Policy and Practice in Post-Apartheid South Africa (Sandown, Heinemann, 2003) 303. 189   Nawab Khan, above n 94 at 164. 190   Alsayyad and Roy, ‘Medieval Modernity’ above n 151 at 16. 191   Arundhati Roy, ‘The Cost of Living: the Narmada Dam and the Indian State’ in LI Rudolph and JK Jacobson (eds), Experiencing the State (New Delhi, Oxford University Press, 2006) 61. 192   Ibid 64.



Conclusion  225

The spatial understanding of a right to housing uncovered in this chapter shows that the provision of a house does not necessarily lead to a realisation of the right to housing if a house is provided absent attention to the rights, freedoms and dignity that we associate with claims to a house in the first place. This conclusion is particularly significant in the context of two criticisms which have dogged the discussion on the right to housing across the globe. First, it responds powerfully to the concern of those who worry that the realisation of the right to housing must require state provision of housing. It illustrates that provision of a house can, in fact, act in detriment not only to a meaningful right to housing, but of other human rights such as freedom of movement and expression, autonomy and equality. Secondly, it sheds a different light on the criticisms of the right to housing that have focused on the fact that, as yet, those courts and other bodies interpreting and adjudicating the right have seldom moved beyond an understanding of the right to housing as a ‘negative’ right to be free from eviction or other forms of interference. While this is normally seen as a failure of courage or imagination on the part of these authorities, this chapter illustrates that a greater danger might be posed to the right to housing’s emancipatory potential by the wholesale adoption of a social engineering project by the courts. The Indian judiciary’s participation in the greening of India’s cities is a case in point. Planned spaces, based on ideologies of territorial control and nation building, may result in cities that are constructed in ‘a way that [makes] it almost impossible for them to become . . . real “places” and viable living areas’.193 The impact on the realisation and enjoyment of human rights such as the right to housing in these planned spaces is significant. What attributes should be included within a right to housing, then, to respond to the use of housing and housing policy as a tool of social order and control? Two related insights can be used to overcome the ‘dehumanizing capacity’ inherent in planned space.194 The first is to pay attention to the idea of ‘place’, not only of ‘space,’ in the realisation of the right to housing. The second is to invoke the Lefebvrian notions of habitat and habiter (to inhabit). Both of these insights serve to re-centre the discussion on the human in the human right to housing. The distinction between space and place is an important one for keeping sight of the humanness of spatial reordering. Place is far more than location, and is philosophically distinct from the idea of space. Whereas space focuses on the actual, material and physical, place is somewhere we are ‘experientially invested’ in and can develop attachments to.195 Place comes to represent ‘a particular relation between people and the world – a sense of “being in the   Kallus and Law Yone, ‘National Home/Personal Home’ above n 141 at 766.   D Ley, ‘Modernism, Post-Modernism and the Struggle for Place’ in JA Agnew and JS Duncan (eds), The Power of Place: Bringing Together Geographical and Sociological Imaginations (Boston, Unwin Hyman, 1989) 56. 195   Creswell, ‘Place: Part I’ above n 1 at 237. 193 194

226  Space world” ’.196 The implication is that place is a meaningful portion of geographical space.197 Like the duality of public/private inherent in the concept of privacy198 the concepts of ‘space’ and ‘place’ require each other for definition.199 They are complementary in the functions they provide. On the one hand, a city made up only of space is an inhospitable and inhuman one. On the other hand, a city cannot be reduced to one person’s subjectively felt place either, even if that longed for place is translated into planning documents and sought by the force of law and the bulldozer. In the concept of place the human being is central. Place is not constructed out of physical materials, the bricks and mortar of housing (although location is a key element of place) but is produced by the relationships and connections created and maintained by people. As place speaks of, and to, the ‘struggle to carve something meaningful out of an impersonal, abstract world’,200 it can also be equated with the concept of home. It is the added element, the subjective phenomena,201 which attach to a person’s relationship to space. Likewise, an emancipatory vision of the right to housing can draw on Lefebvre’s concept of the right to the city. As social space, Lefebvre’s vision of the right to the city parallels the lived experience that place seeks to attend to.202 Thus, Lefebvre’s right to the city also offers a way to go beyond housing’s materiality: rather than understanding the right to housing as the state’s obligation to provide ‘the greatest possible number of housing units’,203 the right to the city stresses the actual environs in which people live, through the concept of ‘habitat’, and the ways of living that can occur there, through the notion of habiter, or ‘to inhabit’.204 These terms imply at the least a ‘margin of initiative and freedom’ and a ‘plasticity of space, its modelling and appropriation by groups and individuals of the conditions of their existence’.205 The right to the city may be enacted in space, but it is not primarily concerned with space, but with action – that is, with the life that is possible in that space. Lefebvre’s right to the city is not a right to enter as a visitor, nor is it a plea for the return of ‘traditional’ cities. Rather, it is the demand for a right to urban life 196   Ibid. See also V Berdoulay, ‘Place, Meaning, and Discourse in French Language Geography’ in JA Agnew and JS Duncan (eds), The Power of Place: Bringing Together Geographical and Sociological Imaginations (Boston, Unwin Hyman, 1989) 124. 197   Berdoulay, ‘Place, Meaning, and Discourse in French Language Geography’ above n 196 at 125. 198   See further Chapter 6. 199   Y-F Tuan, Space and Place: the Perspective of Experience (Minneapolis, MN, University of Minnesota Press, 1977) 6. 200   S Hoelscher, ‘Place: Part II’ in J Agnew and J Duncan (eds), The Wiley-Blackwell Companion to Human Geography (Oxford, Blackwell, 2011) 257. 201  L Fox, ‘The Meaning of Home: a Chimerical Concept or a Legal Challenge?’ (2002) 29 Journal of Law and Society 580, 581. 202   Hoelscher, ‘Place: Part II’ above n 200 at 252. 203  Lefebvre, Writings on Cities above n 127 at 79. 204   Ibid 79–80. 205   Ibid 79.



Conclusion  227

as transformed and renewed through attention to the concepts of ‘habitat’ and ‘inhabiter’.206 These concepts of ‘habitat’ and ‘to inhabit’ reconnect the questions about belonging and membership beyond the object of housing and to the possibilities that should flow through that object. They include the right to participate in and to appropriate the city,207 not just to be included in it as an underclass to fulfil the ends sought by elites. Such ‘citizenship practices’ are, as Sassen notes, based on the production of presence by those marginalised and disempowered citizens that claim rights to the city. In so doing, they are also responsible for constituting the city alongside the state. 208 If space is constructed and planned, and place is lived and dreamed, place by its nature is inhospitable to social ordering and state control. This, as Lorna Fox has noted in the context of the concept ‘home’, means that it is also inhospitable to the law’s desire for objectivity and neutrality.209 While we lack the means to include the subjective and affective elements of place in the planning process,210 it often remains ‘impossible to continue talking of “place” after planners have done their work’.211 Similarly, the lived, experienced and practised aspects of the Lefebvrian right to the city are conceptually ill-suited to translation into concrete reform proposals. Such challenges have not, however, prevented people invoking the right to the city as the basis for a platform of action,212 or as the guiding principle behind the codification of positive law.213 Yet the codification of the right to the city presents existential risks to that right as a practice. If the practice ossifies into the dry bones of legal documentation, rendered a brittle shell devoid of will and action, it will no longer constitute an emancipatory project. Yet, like any political cry or demand, the human-centred concepts of place, and that of habitat and inhabiter, will remain available to critique ossified rights to the city that deny emancipatory visions of rights. Moreover, human rights, despite their deep associations with the law, do not seek objectivity and neutrality. They advance political projects of human good, and as such are capable of expressing and protecting the intangible, subjective goods of human life. It is this relationship between the emancipatory potential of human rights, and the factors that constrain and limit the way they are imagined, interpreted and enjoyed, which forms the final part of this book, and to which I now turn.   Ibid 158.   Ibid 174. 208  Sassen, Territory, Authority, Rights above n 170 at 315. 209   Fox, ‘The Meaning of Home’ above n 201 at 181. 210   DJ Robinson, ‘The Language and Significance of Place in Latin America’ in JA Agnew and JS Duncan (eds), The Power of Place: Bringing Together Geographical and Sociological Imaginations (Boston, Unwin Hyman, 1989) 174. 211   Berdoulay, ‘Place, Meaning, and Discourse in French Language Geography’ above n 196 at 133. 212   Habitat International Coalition, World Charter for the Right to the City (1995), available at www.hic-net.org/document.php?pid=2422. 213   See Colombian Law no 388/1997 and City Statute, Brazil, Law no 10.257/2001. 206 207

9 Possibilities, Politics, Law I.  THE RIGHT TO HOUSING: ILLUSTRATING AMBIVALENCE IN HUMAN RIGHTS FOR SOCIAL TRANSFORMATION

T

HE FIRST PART of this book illustrated the problems with the interpretation of the right to housing across regimes at the international and regional level and in key national constitutional contexts. The construction of the right that emerges from the analysis is one that is overly procedural, even programmatic. Coupled with the failure of courts, monitoring bodies and treaty regimes to define the right and give it normative content, this procedural, programmatic bent means it is difficult to say what the right to housing is. Moreover, it is unclear what might be claimed in its name by those who suffer in abominable living conditions of marginality and dispossession across the world. In fact, the legal discussions over the right to housing often appear to proceed in blindness to the fact that the dispossessed might be those for whom this right was intended. Yet housing provides and protects some of our most fundamental human needs. Safe, adequate housing shields us from the elements and provides refuge from external physical threats. It gives us a material base from which to build a livelihood and take part in the life of the community and the state. Moreover, housing provides a space in which our psychological and spiritual needs can be met and fostered. Housing is important in the formation and protection of identity, community and place in the world. The recognition of the right to housing in law is based on an appreciation of the importance of housing to privacy, autonomy and freedom; its function in facilitating participation and inclusion in society; and its role in providing the material goods that make all of these things meaningful and possible. Thus, the principles that inform and underlie the right to housing include some of the most fundamental concerns of human rights. The realisation of a right to housing across the world would have a profound impact on the lives of the marginalised. In doing so, it would also have a farreaching effect on our social organisation as a whole. We see this clearly through the analysis undertaken in Part II. Space, privacy and identity provide powerful lenses through which to illuminate the radicalism inherent in the right to housing. Nevertheless, the problems identified in Part I remain. When the right to housing has been interpreted and applied it has not had a radical effect. Even an

232  Possibilities, Politics, Law optimistic reading suggests that it has provided, at most, only partial gains and improvements in the living conditions of some, and by no means always for those who are the worst off. In light of this reality, it becomes necessary to ask whether the limitations, lacks and difficulties illustrated in Part I show that in fact, turning to the right to housing to solve our social problems of homelessness and marginalisation is a fruitless exercise, doomed to failure. Alternatively, if the right to housing really can offer us possibilities for social change and transformation, how might such transformation be achieved? In this final Part, I build on the critique and analysis in Part II to draw out three unresolved issues in the theory and practice of the right to housing. The first of these unresolved issues concerns the question of the logic or paradigm through which we express human rights. Specifically, can we evaluate the right to housing in the same conceptual frame as civil and political rights? Raising this question forces us to query the way in which the ‘economic’ and ‘positive’ dimensions of the right to housing are themselves constructed within the parameters of our human rights discourse. Moreover, this question pushes us to interrogate profound assumptions about the role and purpose of the state in the realisation of human rights. A second problematic concerns the relationship between human rights and social change. The contestation over the meaning, purpose and scope of the right to housing force us to ask what making a claim for housing as a human right means as a legal reform strategy or as a call for social transformation. Implicit in this question is a deeper one, which constitutes a continuing tension in the theory of and practice of human rights; that is, the contestation over the right to housing pushes us to ask what the relationship between legal and social change is, challenging us to confront the issue of whether human rights function only to channel and neutralise resistance or, perhaps, offer the prospect of emancipation, even revolution. Finally, the analysis undertaken in Parts I and II asks us to confront the implications of struggles to control the ownership of human rights, as both political and legal claims. While the law is often presented as the limiting factor on the radical political expression of human rights, law also plays a powerful part in the radical potential of human rights, through the role it plays in the construction of legal subjectivity. This final Part thus interrogates conflicting claims for the ownership of rights played out through law and politics. In this analysis, the agency of the human rights claimant emerges as a powerful, inescapable, critique of human rights denials. These three unresolved issues go to the heart of the scepticism with which the right to housing is often greeted. Moreover, they underlie the ambivalence towards the whole human rights project, evident in much soul-searching by those who seek social transformation in its shadow. Confronting these unanswered questions is thus necessary to understanding the enduring controversies that dog the debates on the content, meaning, scope, and even existence of a



Institutional Mythologies and the Hidden Politics of Human Rights  233

right to housing. At the same time, confronting these issues allows us to illustrate the assumptions that lie hidden in the struggles to control all contested human rights. As such, this final chapter is an offering to those who seek to move human rights beyond the invisible architecture of thought which often constrains the possibilities for reflection and action through rights. In the first part of the chapter, I expose and consider the implications of the assumptions underlying the ambivalence of calls for housing as a right. In the second, I explore the ownership of human rights and the role of agency in overcoming their limitations, an analysis which, again, illuminates hidden assumptions that limit the possibilities of human rights. II.  INSTITUTIONAL MYTHOLOGIES AND THE HIDDEN POLITICS OF HUMAN RIGHTS

Why turn to a right to housing? What does a right to housing add to our understanding of human life, and the harms we want to redress or the goods and needs we wish to fulfil? Such questions illustrate the enduring scepticism that attends claims for housing as a human right. They rest on the anxiety that perhaps housing just isn’t a right at all. The first two Parts of this book address these questions obliquely. Here, they are tackled head-on. On one level, the question as to whether or not to recognise a right to housing has been comprehensively answered in the affirmative by the existence of the right to housing in law. As such, the claim that the right to housing is not a right is one that can only now be read as the argument that it should not have been codified as a right. And yet, the doubts persist. Arguments continue to be raised that perhaps housing is a good thing, and we should pay moral and ethical attention to its enjoyment for all, but it cannot be properly considered a right. On top of this, some note, maybe the right to housing is just too unfamiliar to fit within the frame of rights. One concern is that including housing as a human right might cast human rights adrift from their moorings in individual liberty and freedom, debasing all human rights in the process.1 Similarly, perhaps attempts to bring too many material goods (of which housing is one) within the scope of human rights weaken the human rights project itself.2 Finally, ‘smuggling’ positive state obligations into human rights might mean that human rights cease to be instruments of freedom, and become instead instruments of oppression.3 From these viewpoints, the right to housing does not offer the possibility for freedom, liberty and equality that is the project of human rights but rather presents an opportunity for the state to actively intervene in numerous aspects of the lives 1   P Alston, ‘Conjuring Up New Human Rights: a Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. 2   J Griffin, On Human Rights (New York, Oxford University Press, 2008). 3   T Machan, ‘Considerations of the Libertarian Alternative’ (1979) 2 Harvard Journal of Law and Public Policy 103, 106.

234  Possibilities, Politics, Law of individuals, even though it does so with the benevolent intention of securing greater equality and meaningful freedom. This vision is one in which the right to housing plays a radical but negative role, in that it has the potential to undo all the gains made in freedom and equality through human rights. In the face of such criticisms, what possibilities remain for the right to housing, beyond its current legal interpretation, if any? In order to assess the possibilities of the right to housing, it is necessary to draw out and respond to two separate arguments that run through the enduring criticisms noted above. The first aspect of the enduring debates appears, ostensibly, as one related to how we design the institutions which are responsible for interpreting and enforcing human rights. However, when brought into the light, it reveals hidden assumptions about the politics of human rights, and the mythologies of our foundational human rights texts. Considering these hidden assumptions allows us to illuminate the second element, which shows that the fears about accepting a right to housing as a human right relate directly to the relationship between the state and the individual and the role of rights in that relationship. A.  Institutional Mythologies Whether a right can be meaningfully enforced in an individual legal case, how the judiciary could make appropriate choices regarding the enforcement of a right, and whether an unelected branch of government can make such choices without damaging the balance of powers within a state are debates over institutional designs. As such, they may be answered differently in different institutional contexts and in fact the legal experience of justiciability illustrates that, by and large, practical concerns about the right to housing’s impact on institutional coherence and relevance have been met. Courts have made determinations on the right to housing without bringing the economies of states to their knees or marginalising the elected branch of government to the point of pointlessness. Despite normative vagueness, over-proceduralisation and an apparent lack of attention to the social context in which housing loss or lack is experienced, within judicial treatments of the right to housing the creativity of judges, plaintiffs, activists and advocates has shown that these practical concerns can be overcome. Where these criticisms concern the problem of rights to resources, their impact has also lessened with increasing attention to the ‘positive’ implications of ‘negative’ rights. For example, it is evident that the right to a fair trial requires a large and expensive civil justice system; the right to free speech requires the costly protection of opportunities to speak; and the right not to be subjected to cruel, unusual and degrading treatment requires a humane and sufficiently resourced prison system.4 Given these positive, resource-intensive 4   See generally, the contributions in D Barak-Erez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007).



Institutional Mythologies and the Hidden Politics of Human Rights  235

obligations, the suggestion that the right to housing is uniquely problematic fades away. That much scholarship on economic, social and cultural rights rehearses these debates despite evidence to the contrary suggests that the questions of institutional design are not, in reality, questions about the mechanics of our institutions at all. Rather, these controversies persist because the answers to them challenge the institutional ‘mythologies’ upon which we rest our assumptions about the relationship between society and the state, and the role of rights in that relationship. As Malcolm Langford notes, ‘the national and international mythologies surrounding the adoption of constitutional documents at a particular point in time’ are crucial to the way rights are understood.5 Yet, the construction of these myths rests on the forgetting of the political expediencies that lay behind the political arrangements that made them possible. When we come to see these agreements as of ‘majestic, enduring and self-sustaining neutrality’ it is a sign that we have ceased to pay attention to the political powers and imperatives operating behind the mythical screen.6 As such, the persistence of debates about the practicalities of the right to housing should be understood to communicate unstated anxieties over how claims to housing as a right threaten to undermine these deeply held foundational myths. In fact, we can interrogate the adherence to tired debates about the right to housing through Reisman’s insights on how the ‘myth systems’ of the law operate in symbiosis with – but without acknowledging – the actual operations of law on a day-to-day basis.7 Thus, the denial of the existence and efficacy of the right to housing bolsters the myth of the negative, civil and political rights as the cornerstone of our political system, in the face of the actual, ongoing adjudication of the right to housing. In order to understand the lingering doubts over the right to housing we must therefore uncover hidden assumptions about rights, society and state, and admit that the questions about whether we should recognise a right to housing are, in fact, about how rights function in society. They are questions about where the line should be drawn that protects the private sphere of autonomy and liberty of the individual, and how this line can be fixed in the current, contemporary state with its bureaucratic and regulatory apparatus capable of reaching into the very core of each person’s emotional, mental and physical well-being. To a large extent, one’s view of the ‘legitimacy’ of the right to housing as a human right will depend on whether one sees the provision or enforcement of 5   M Langford, ‘The Justiciability of Social Rights, From Practice to Theory’ in M Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008). 6   M Reisman, ‘On the Causes of Uncertainty and Volatility in International Law’ in T Broude and Y Shany (eds), The Shifting Allocation of Authority in International Law: Essays in Honour of Professor Ruth Lapidoth (Oxford, Hart Publishing, 2008) 37. 7   M Reisman, Folded Lies: Bribery, Crusades and Reforms (New York, Free Press, 1979).

236  Possibilities, Politics, Law the right to housing as an exercise of state interference in unregulated areas of freedom, or as intervention in the creation of freedom. This conception in turn hangs on how one conceives of the relationship between freedom and equality in human rights. Several assumptions underlie these different positions. The first assumption is that there is a ‘basic tension – even incompatibility – between the forms and logics underpinning rights and regulation’.8 Conceptually, rights protect the sphere of life we assert against the state and the interference of others. Even current understandings of ‘positive’ rights are justified on the basis of the freedom their provision supports. However, no rights are unregulated in practice. Thus, underlying every rights debate is the potential conflict between rights and the regulation of society that must be undertaken to respect, protect and fulfil them. In disputes about the existence, content, scope and potential of the right to housing, the resulting tension is often explicit. This is in part a consequence of the symbolic nature of the home as the core location of the private, running up against the conceptual commitment of rights to a maximum level of individual independence and freedom (howsoever conceived) and simultaneously encountering the claims of individuals to entitlements to material goods within society and the state. However, this basic tension itself presumes that autonomy and freedom are achieved in opposition to the state. The view that freedom is attained in spite of the state needs to be contrasted with an idea of human freedom such as Norberto Bobbio’s, which rests on a conception of full freedom being achieved on three levels: not only from the state, but also within, and finally ‘through or by means of the state’.9 This view is one in which rights such as the right to housing have an important role in guaranteeing freedom for all members of the community, and do not just represent necessary, but generally regrettable, limitations on the freedoms of others. This view, in turn, relates to the ability to reconcile the authority of the state with the flourishing of human freedom itself. In de Ruggiero’s view, it is only thanks to the existence of the state that human beings can truly flourish and enjoy freedom and rights,10 a position which in turn rests on the recognition that ‘[r]ights are always relational – they involve their subjects in relations of dependence on others and responsibility to the law’.11 As such, the question is not one of reconciling or drawing lines between individual freedom and state power, because state power provides the space of freedom. 8   B Morgan, ‘The Intersection of Rights and Regulation: New Directions in Sociolegal Scholarship’ in B Morgan (ed), The Intersection of Rights and Regulation: New Directions in Sociolegal Scholarship (Aldershot, Ashgate, 2007) 3. 9   N Bobbio, The Age of Rights (A Cameron (trans), Cambridge, Polity Press, 1995) 18. 10   G de Ruggiero, The History of European Liberalism (RG Collingwood (trans), Boston, Beacon Press, 1967). 11   C Douzinas, ‘Justice and Human Rights in Postmodernity’ in C Gearty and A Tomkins (eds), Understanding Human Rights (London, Mansell, 1996) 126.



Institutional Mythologies and the Hidden Politics of Human Rights  237

Moreover, the assumption that underlies the position that rights are achieved in opposition to the state rests on the understanding that freedom and equality are mutually exclusive, and that they pull in different directions. In such an understanding, equality is ‘essentially’ economic or social, and freedom is ‘juridico-political’.12 As Étienne Balibar notes, the axioms upon which this supposition rest are seldom questioned. Yet they posit a world in which equality is achieved through state action because it is viewed as a question of redistribution, ‘an exclusively collective goal’, and freedom is viewed as inherently individualistic.13 Balibar’s point invites us to ask what a view of human rights would look like if we overcame this distinction or inverted this relationship. And in fact, the analysis undertaken in Part II offers insights into how such a world of human rights might look. For example, uncoupling women’s identities and labour power from the home unsettles the deep assumptions about which social goods are rights and which ‘rectitudes’. Similarly, we can see human rights to material goods as ‘artificial’ equality imposed on the ‘natural freedom of enterprise and exchange’, or we can see the freedoms of enterprise and exchange as themselves artificial limits on pre-existing equality.14 To make such points is to reveal that the question of ‘freedom’ is not one that can be answered in the abstract, but is always a question of who is freed from what, and to what purpose. When freedom operates as a free-standing and neutral principle inscribed into our societies through Reisman’s ‘myth systems’ of the law, it not only obfuscates the relational nature of freedom but has a self-justifying function in the continuation of an empty freedom. Thus to ask the purpose of human rights is always to ask a political question but, as this part shows, the character of the question is not always acknow­ ledged, particularly when human rights are couched in terms of neutral legality used to imbue our human rights texts with objective weight and power. It is this aspect of the debate over the right to housing which I turn to next. B.  The Hidden Politics of Human Rights The enduringly relevant difference between the right to housing and rights which are not met with such scepticism is whether a given right’s status qua right is seen to be a political question or not. For example, we no longer see the discussion about the right to be free from torture as a political one. The right’s acceptance as a norm of customary international law – indeed as jus cogens – lifts the right above the fray of contestation. Though the debate over the content and scope of the prohibition on 12   P Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York, Columbia University Press, 2004) 30–31. 13   É Balibar, Masses, Classes and Ideas (New York, Routledge, 1994) 39–40. 14   J Rancière, Disagreement: Politics and Philosophy (J Rose (trans), Minneapolis, MN, University of Minnesota Press, 1999) 8.

238  Possibilities, Politics, Law torture continues, the terms of the debate are settled: the right is to be protected by the state, through the institutions of the courts, the police and the regulation of the action of private companies and private bodies. These regulatory functions are already recognised worldwide as legitimate functions of governments into which resources not only may, but must, be poured. Moreover, these institutions are well-established and their presence is by and large taken for granted. While it can certainly be argued that reform (even radical reform) of these institutions is necessary for the realisation of the right to be free from torture, the terms of the debate on the existence of these institutions appears relatively stable. The shock that has accompanied ‘political discussions’ which take seriously the prospect of denying terrorist suspects the right to be free from torture in the ‘War on Terror’ is itself an indication of the acceptance of such a right as the ‘archetype’ of the non-political.15 However, with respect to the right to housing, we have not forgotten that the issues surrounding its interpretation, enforcement and realisation are political, although Padraic Kenna’s argument that housing rights today are being offered as ‘a substitute to political development, or indeed, politics itself’,16 suggests a dubious ‘progress’ in this direction. In some places, the terms of the debate are being agreed. For example, South Africa has enshrined a judicially enforceable right to housing that places positive obligations of provision on the state. The debate itself will unfold over many years to come as questions of when, how and to whom the right is due are considered. Elsewhere, meanwhile the terms of the debate surrounding the design and establishment of institutional measures to protect the right to housing remain far from settled, and it is in this context that anxieties about positive state obligations, judicial enforcement and undue state interference in people’s private lives must be seen. As Henry Shue notes, the design of better institutions to protect human rights is crucial, and appropriate institutional design is challenging.17 Importantly, we must recognise institutional design not only as a practical challenge but also as one which confronts conceptually those foundational mythologies which undergird our understanding of rights. As such, criticisms of the right to housing should be seen as questions about appropriate institutional design in service of the appropriate boundaries between the individual and authority, whether in the form of society or the state. Treating the right to housing as a human right goes to the heart of our social and political organisation. Yet, it is only one way of illuminating how the boundary between authority and freedom operates, because the issue of where to place the boundary persists even if we jettison the language of rights. 15   See J Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105 Columbia Law Review 1681. 16   P Kenna, Housing Law, Rights and Policy (Dublin, Clarus Press, 2011) 505. 17   H Shue, Basic Rights, 2nd edn (Princeton, NJ, Princeton University Press 1996), 166–7.



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That debates about how to best protect the freedom and flourishing of the individual in the light of structures of authority persist even absent the language of rights sets the context for the next part of this chapter. In the next section, I address a particular set of criticisms of rights, normally associated with the critical legal studies movement. Common in these critiques is a warning of the dangers and pitfalls of pursuing social change through the language or practice of rights. These critiques are powerful and often insightful, but they are largely contingent on two assumptions. The first of these assumptions is that the beneficiaries of rights lack the agency to pursue rights claims in ways that can overcome the current limitations these theorists posit are inherent in claims made in the discourse or practice of rights. The second assumption is that a particular risk of cooptation lies in engagement with rights: in reality this risk attends all struggle, and accordingly, all social struggles must be pursued in the face of some risk of their capture by other interests and powers. After first providing some context for this critique I then turn to argue for the possibilities of human rights beyond the limitations they are often feared to contain. These possibilities lie in the agency of those who claim rights, and in the particular power of rights at the intersection of law and politics.

III.  THE OWNERSHIP OF RIGHTS

In the section above, I addressed one enduring set of criticisms of the right to housing. Criticisms of that type are based on the assumption that treating housing as a right will undermine our human rights institutions, despite the fact that, to date, the interpretation and enforcement of the right to housing has displayed no such tendencies. The unease expressed in that debate is really an anxiety about who controls the interpretation of our rights-founding mythologies, and what admitting the politics behind those mythologies might entail. The issue of the ownership of rights is also central to a second set of criticisms. Rather than being criticisms of what damage a right to housing might do to rights discourse more generally, this second set of criticisms sees rights claims as dangerous to the prospects for the enjoyment of social goods, equality or emancipation by those who claim them. These criticisms foreground the limitations of the right to housing detailed in Part I. They ask why, in light of the thin and partial gains made in the name of the right to housing, we continue to turn to it as a strategy for social reform. The answer to these critiques lies in the agency of those who invoke human rights as projects of social and political change, and in the way rights intersect as political and legal concepts to give recognition to that agency.

240  Possibilities, Politics, Law A.  The Critique of Rights: Cooptation and False Promise The powerful, and often insightful, critique of rights presented by a wide crosssection of the critical legal community has had a major impact on human rights scholarship, particularly in the common law world. More specifically, it has significantly tempered the optimism with which rights as projects of emancipatory social change are greeted – at least within the academy. Encapsulating the thrust of the critiques in one sentence, David Kennedy has written that ‘the human rights movement might, on balance, and acknowledging its enormous achievement, be more part of the problem in today’s world than part of the solution’.18 Amongst the particular harms alleged to attend quests for social transformation through a rights-based practice is their tendency to monopolise discourse. This argument asserts that rights crowd out other ways of thinking about harms, reducing the field of vision to such a degree that systemic injustices are misdiagnosed as discrete acts of discrimination against separate individuals. By casting the right to housing as a human right, a social problem which should be understood holistically comes to be seen as an individual problem experienced by one person, whose remedy lies in a personal legal case. This occludes the existence of structural layers of, for example, macro-economic policies pursued at national, supra-national or global levels against whole peoples or social groups. This individual focus may blind us to other ways of thinking about the problem, for example, as the economic result of unfair trade practices or as a legacy of the colonial destruction of traditional landholding systems, social networks and knowledge. In addition, critiques in this vein have long recognised the way that the polit­ ical nature of rights is denied through their assertion as rights. Indeed, we have already considered the way rights function in constructing and perpetuating institutional mythologies in this chapter. Marx, whose impact on critical legal studies is profound, if at times unacknowledged,19 argued that when the state declares that we have the right to equality, to liberty, to property it does nothing except declare these questions to be outside the sphere of political contestation, while simultaneously leaving untouched the background realities of property ownership, political and financial power, and unequal access to opportunities and goods that are our lived reality.20 Turning to the right to housing to solve the lack of shelter, dignity and safety that constitutes the inadequate living conditions of millions can work to obscure and insulate the role of the domestic and world economy in creating and maintaining destitution. Moreover, rights are charged with masking power within and across states, ensuring domination. At the international level, for example, powerful Western 18   D Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights Journal 101. 19   See eg C West, ‘The Role of Law in Progressive Politics’ in D Kairys (ed), The Politics of Law: a Progressive Critique, 3rd edn (New York, Basic Books, 1998) 715. 20   K Marx, ‘On the “Jewish Question” ’ in RC Tucker (ed), The Marx-Engels Reader, 2nd edn (New York, Norton and Company, 1978) 35.



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states pursue economic and political projects informed by a civilising mission, in which the export of human rights represents, at best, the ‘white man’s burden’ and at worst, a conscientious policy of cultural assimilation.21 Finally, and perhaps most devastatingly, rights are seen as always open to cooptation or capture. Even though they may begin as radical ideas, they are soon neutralised. As Upendra Baxi notes, it is all too easy for the ‘struggle against homelessness and shelter’ to be translated into ‘a series of mandates for the construction industries and urban developers’.22 Lucie White’s self-critical work foregrounds the critical legal studies anxiety strikingly. She worries that, perhaps ‘bringing rights consciousness’23 to the residents of a city’s informal settlements: would bind them even more tightly into the tricky net of liberal ideology. Human rights might link them up with Internet buddies and help them target the World Bank as well as domestic courts. Yet it would do so at the heavy cost of keeping their passion in line. Human rights consciousness would train them to think of themselves as good, liberal, rights-consuming subjects as they watched their children die.24

In light of this, is not holding out the existence of the right to housing in human rights Conventions and national constitutions as if it were the sword of justice itself the greatest trick of all? Yet, the marginalised, the dispossessed and the homeless themselves continue to seek the right to housing in response to the deprivations they experience. In the process they claim the right and make it their own. In so doing, they enact their own political subjectivity and disrupt the status quo that fails to recognise it as such. It is in this process that the radical potential of the right to housing lies. The criticisms noted above largely fail to understand the illimitable potential of human rights which inheres in the agency of those who claim them, and in the power of those claimants to make, and remake, human rights in service of their own visions of a just and emancipatory world. B.  Agency and the Ownership of Human Rights The criticisms detailed above help to explain the way rights work – or have failed to work – in social struggles across the world. Yet, their power is predicated upon a persistent view of human rights as given; as tied to an inherent form or nature – even a natural order. And this adherence to a given form is coupled with the 21   M Mutua, ‘What is TWAIL?’ (2000) 94 American Society of International Law Proceedings 31, 37. See also M Mutua, Human Rights: a Political and Cultural Critique (Philadelphia, PA, University of Pennsylvania Press, 2002) 11–13. 22   U Baxi, The Future of Human Rights (New Delhi, Oxford University Press, 2002) 141. 23   L White, ‘ “If You Don’t Pay, You Die’: On Death and Desire in the Postcolony’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007) 72. 24  Ibid.

242  Possibilities, Politics, Law assumption that those who seek to invoke human rights are without agency to change, make and remake those rights in service of a just social order. On this view, the right to housing will be handed ready-made to the victims of housing rights violation, those ‘hordes of nameless, despairing, and dispirited masses’.25 Imagined as an inert object, it will necessarily carry with it all the deficiencies, problems and inconsistencies it currently displays. Yet claims for the right to housing carry with them a radical potential. The right to housing is not given by those in power to those who seek to claim it. Rather, those who claim it make and remake the right. Through these acts, or enactments, they demonstrate their agency, and claim the right as their own. It is through these acts of struggle, not despite of them, that the right to housing carries potential, and through this process of claiming, making and struggle that it escapes its limitations. For, although human rights can be tools of the powerful, who can engage those norms in projects of self-interest or exploitation, human rights may also be reclaimed, struggled for and remade in ways that offer the possibility for emancipatory social and political change. Human rights, and the right to housing among them, are constantly escaping the limitations placed on them. There is little recognition in the standard critique of human rights, that the recipient might have the capacity, power and ingenuity to take that right and remake it in service of her own goals and desires. The receiver of human rights is pitied, or abhorred, but seldom understood as the agent of her own destiny. With this passive ‘victim’ figure in the background of our human rights thought, it is all too easy to interpret the demand for rights as merely a howl of inarticulate suffering. The failure to hear such utterances of suffering as a demand for rights represents a deep denial of commonality. As Jacques Rancière explains, when we do not recognise another as a political being, we ‘begin by not seeing him as the bearer of the signs of politicity, by not understanding what he says, by not hearing what issues from his mouth as discourse’.26 Yet rightlessness is not just a status, but a relationship. If rights cannot be understood outside of their social context, rightlessness must also be understood as produced in a social context. Thus, what is at stake in the claim for rights, and its recognition as such, is the very fact of membership in the political community itself. Rancière’s argument illustrates that the cry for rights is the claim of rights. It is not an utterance of animal suffering, but an insistence on relevance and inclusion as an equal political being. Membership in the category of the political – the ‘being human’ of having human rights27 – is something that must be fought for on the terrain of rights themselves. 25   M Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201, 229 and see more generally 228–33. 26  J Rancière, Dissensus: On Politics and Aesthetics (S Corcoran (ed and trans), London, Continuum, 2010) 38. Mutua shows how this process operates to exclude not only individuals, but whole peoples and cultures. Mutua, ‘Savages, Victims and Saviors’ above n 25 at 205. 27   A Gewirth, ‘The Epistemology of Human Rights’ in E Frankel Paul, FD Miller Jr and J Paul (eds), Human Rights (Oxford, Basil Blackwell, 1984) 1.



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As Joel Feinberg and Jan Narveson put it, to think of a person as possessing human dignity ‘simply is to think of him as a potential maker of claims’.28 The denial of agency implicit within rights criticisms may therefore entail a more insidious denial of common humanity. It is in the recognition of mutual political subjectivity that the radical potential of all human rights resides. For, when those in power construct the categories of the ‘marginalised’, the ‘poor’, the ‘rightless’ and the ‘invisible’, they rely on the fact that those so categorised can recognise their place in those groupings: ‘The masters demand to be recognized as masters by those they dominate. However, for this recognition of inequality to be possible, the masters must recognize the ability of the dominated to recognize at all’. Thus, beneath our social hierarchies lurks a pure, prior equality of being,29 and the struggle for rights by those denied them itself makes manifest the ‘fundamental commonality of the shared life’.30 It is this radical potential for inclusion in the world of rights that, as Rancière explains, we find inherent in the French Declaration of the Rights of Man and the Citizen, and which we can trace in all subsequent claims for human rights by the marginalised and the deprived. However, those denied human rights can only conduct this struggle in ‘constant confrontation with the logic that denies this commonality’.31 Through this struggle and in this confrontation, those claiming rights enact what Rancière identifies as a ‘dissensus’; that is, they rent the fabric of consensus that smooths over the question of who counts within a political community, revealing through the act of claiming that they have the rights they do not have. Rancière uses Olympe de Gouges’ argument in the Declaration of the Rights of Women32 to illuminate how rights claims function as the staging of the dissensus. De Gouges showed the inconsistency at the heart of the French Declaration of the Rights of Man and the Citizen when she pointed to the denial of women’s citizenship rights. If women were to be considered equal public citizens when it came to the question of their fitness for the guillotine, she argued, they were equally fit to sit as citizens in the Assembly.33 As Rancière puts it: Women as political subjects set out to make a twofold statement. They demonstrated that they were deprived of the rights that they had thanks to the Declaration of Rights and that through their public action that they had the rights denied to them by the constitution, that they could enact those rights.34

28   J Feinberg and J Narveson, ‘The Nature and Value of Rights’ (1970) 4 Journal of Value Enquiry 243, 252. 29   J-P Deranty, ‘Jacques Rancière’s Contribution to the Ethics of Recognition’ (2003) 31 Political Theory 136, 143–44. 30   Ibid 150–51. 31  Ibid. 32   O de Gouges, Declaration of the Rights of Women (Reston, Pythia Press, 1989). 33  Rancière, Dissensus above n 26 at 56–57. 34   Ibid 69.

244  Possibilities, Politics, Law Staging a dissensus involves the ‘putting of two worlds in one and the same world’.35 It is the construction of both a relation of inclusion (between de Gouges and the framers of the Declaration), and a relation of exclusion (of de Gouges by the authors of the Declaration).36 Through this performance of dissensus the consensus is ruptured. What was invisible becomes visible and, as a consequence, subject to recognition and evaluation through shared normative principles: ‘pain’ and ‘pleasure’ can be understood as ‘evil’ and ‘good’.37 Moreover, by showing how human rights are enacted through the staging of the dissensus, Rancière illustrates that they are not just claimed, they are simultaneously created. A similar enactment can be seen in the very ‘declaration’ of human rights in the Universal Declaration of Human Rights. As Costas Douzinas notes: The central revolutionary element of the declarations is to be found in this act of selffoundation, in which specific rights are created in one and the same act, which establishes also the bearer of right (‘man’) and the power of the legislation to create all human rights ex nihilo.38

The claim to human rights is thus performative: when the homeless, the marginalised and the dispossessed claim the right to housing, they not only insist on their own presence and inclusion in the referential world of the political community, they create the right to housing that they claim. Rancière’s concept of the dissensus allows us to see the act of creation in each claim of right. Moreover, it is not only in the original act of declaring that rights are created. Each claim can be seen as an enactment. To miss this point is to simply reduce Rancière’s argument to a pronouncement that rights are socially constructed. Such claims may not be acknowledged by the law-maker: for de Gouges the law ‘could not even hear’. Yet, as Rancière argues, ‘a political subject is a capacity for staging scenes of dissensus’.39 In other words, the possibility for staging scenes of dissensus is not negated by poverty, by marginalisation, by the status of being the ‘other’. The street dweller, the woman with no right to the home in which she lives, the indigenous person denied the expression of home that comes with ties to land, can all lay claim to the right to housing denied to them, showing that they have this right through its very denial. Through this staging of the dissensus, the way we perceive the world is shifted – the act of dissensus is an act of insistence that there is something to see that the consensus is blind to or fails to acknowledge. In this way, the very claim that the right to housing is a human right produces a dissensus. It unsettles or disrupts the accepted corpus of international human rights, itself an explicit product of negotiations for consensus, and calls for a profound rethinking of how so  Ibid.  Ibid. 37   Ibid 38 38   Douzinas, ‘Justice and Human Rights in Postmodernity’ above n 11 at 122. 39  Rancière, Dissensus above n 26 at 69. 35 36



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many of the world’s people can ‘have’ the right to housing that they so obviously do not have. This experience of dissensus perhaps explains the profound and, as we have seen, enduring anxiety that the claim for a right to housing as a human right often elicits. In the first set of criticisms of the right to housing discussed above, the dissensus produced in claiming the right to housing unsettles the corpus of human rights. It makes visible the denial of the adequate standard of living that the right to housing protects, and in doing so calls into question the consensus that freedom and equality are opposed, and that freedom is an empty, neutral principle that can be understood and enjoyed as if it lies outside our unequal social order. Seen in light of the second set of criticisms, which concern what the promise of a right to housing ‘does’ to the victim of a human rights violations, the dissensus is more profound as it illuminates the denial of speech at the heart of the denial of agency to make claims in terms of rights. The act of staging a dissensus is not without peril, however. As Balibar writes, ‘this operation of inventing rights’ is a ‘risky operation’ and not only on an intellectual level, because it puts the whole social order in question.40 Yet the provocation of this dissensus is necessary, even desirable: we need to unsettle a world of comfortable (or resigned, or even cynical) consensus, because, as Susan Marks reminds us, ‘under prevailing conditions, accumulation depends on appropriation, prosperity goes hand in hand with superfluity, and modernisation brings benefits that are ambiguous, selective, and exceedingly costly’.41 This is the world in which the housing rights of the few are enjoyed despite, even contingent on, the denial and violation of the rights of the many. This is the world in which more than one-third of the planet’s urban population live in mushrooming informal settlements,42 physically and politically marginalised, yet integral to the functioning of the global capital markets that produce the lavish consumer goods to furnish the houses of the few. It is the world in which more than 27 million individuals were displaced within their own states in 2010.43 Corralled into camps, millions of the displaced live a life in limbo. Unable to go on, unable to go back, they exist in a situation of profound denial.44 War, violence, legal and physical coercion, development projects, rezoning, city regeneration schemes, international events and mortgage repossession all play out as events on the terrain of consensus about who is vulnerable, unfortunate, and liable to experience such loss and dislocation.

 Balibar, Masses, Classes and Ideas above n 13 at 223.  S Marks, ‘Human Rights and the Bottom Billion’ (2009) 1 European Human Rights Law Review 37, 47. 42  UN-Habitat, State of the World’s Cities (2010–11), Cities for All: Bridging the Urban Divide (London, Earthscan, 2010) 32; M Davis, Planet of Slums (London, Verso, 2006) 23. 43   United Nations High Commissioner for Human Rights, Internally Displaced People, Figures 2010, available at www.unhcr.org/pages/49c3646c23.html. 44   See G Verdirame and B Harrell-Bond, Rights in Exile: Janus-Faced Humanitarianism (New York, Berghahn Books, 2005). 40 41

246  Possibilities, Politics, Law This is also the world in which the United States sees ‘[a]t least 840,000 people . . . homeless on any given day’45 and the world where homeless children ‘spend their life under the open sky, selling what they can, shining shoes, begging, scavenging, collecting garbage and facing harassment and brutality’.46 And it is also the world in which indigenous peoples live in conditions of staggering overcrowding, destitution, disease and social alienation, while their lands are deemed empty and ripe for resettlement and exploitation.47 For these violated and marginalised individuals and communities, who make up the majority of the world’s population, the consensus of the social order offers few comforts. Accordingly, unsettling the social order is a requirement, although it may still entail the risk or loss or gains or freedoms already (even if only partially or contingently) enjoyed. Thus, when the dispossessed and displaced demand their right to housing, even in the face of their painfully obvious lack of it, they should not to be seen as truculent and unschooled, refusing to accept the ‘correct’ definition of the right and to see that it does not, cannot, be extended to them. They are not engaging in an act of disobedience to the standard interpretation, but in a radical reinterpretation of the world of rights, and of no rights, in which they live.48 So far, this understanding of the struggle for rights is a struggle to enact political subjectivity. In this conception, human rights are political, and politics is a struggle for rights. If the claim for, and the recognition of, rights is a political process, what role, then, for law in the struggle for the realisation of human rights? C.  Law, Politics and Possibilities: the Role of Legal Subjectivity Law is normally seen as the limiting constraint on political claims for human rights. In one sense this is true: boundaries and limits are created through law’s technical specifications. Concepts of jurisdiction and standing, for example, act as barriers between a harmed individual and the recognition of a human rights violation. Yet law itself offers possibilities because it is through law that political claims gain recognition. The extension of legal subjectivity – and thus the recognition of a wrong as a violation worthy of condemnation by all – is itself a radical possibility opened by rights in law. 45   M Foscarinis, ‘Advocating for the Human Right to Housing: Notes from the United States’ (2006) 30 New York University Review of Law and Social Change 447, 454. 46   PC Mishra, ‘Right to Shelter: a Human Right Perspective’ (1998) 40 Journal of the Indian Law Institute 230, 240–41. 47   DJ Porteous, and SE Smith, Domicide: the Global Destruction of Home (Montreal, McGillQueen’s University Press, 2001) 191. 48   R Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 46–47.



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It is the claiming, rather than the granting, of rights that makes them real. Legal recognition however, acts as the validation of the claim to human rights. Knowing oneself to be the possessor of rights may be immensely important to the constitution of the self, however; recognition of this status by the law enables us to participate in society as human, backed by rights. The link between human rights and law is necessary for human rights to function as constitutive of human personhood. This is because of the role of legal subjectivity in the transformation from ‘zoological individual’ to legal subject; that is, in travelling the pathway from the biological animal to the human person in society.49 This role gives law and the legal codification of human rights the ultimate say in the inclusion and exclusion of humans from recognition as social persons. Needless to say, this argument for the need for legal rights fails in a world where law is not the source of authority and, as Marx argued, such a world might offer different possibilities for equal human subjectivity.50 Despite their symbolic and declaratory power, rights will, as Douzinas puts it, ‘be arranged and organized according to the protocols of legal subjectivity and the technical specifications of legal rights’.51 These technical specifications will play a limiting role: positive law has always denied personhood and legal subjectivity to some. The woman, the heretic, the savage, the refugee, the slave, all have been excluded from full legal subjectivity in manifold legal traditions at different times throughout history. As Patricia Williams writes, the experience of slavery and its legacy is of ‘living in the oblivion of society’s inverse, beyond the dimension of any consideration at all’.52 The limiting function of the law means that some suffering will remain unrecognised. But when a human right is recognised in law, the harm perpetrated against the person ceases to be an unfortunate incident of life in a difficult and unfair world, and becomes a violation of dignity and humanity: a violation of something which is due to that individual by right. The suffering ceases to be only a private matter and becomes the necessary concern of all persons. The premise of human rights is that the exclusion of humans, as individuals, from the possession thereof is unacceptable. It is for this reason that the attempts to strip Mumbai’s informal settlers of their voting rights and their status as citizens based on the ‘illegality’ of their dwellings is so profoundly unsettling. It is because it is deeper than a denial that people should be housed as a matter of law or right, but goes to the heart of the question of the belonging and membership of those people within humanity itself. Yet, the difficulties posed by the human rights of children, those judged mentally incompetent, and even the 49   E Pashukanis, The General Theory of Law and Marxism (B Einhorn (trans), London, Law Links, 1978) 111. 50   K Marx, ‘Economic and Philosophic Manuscripts of 1844’ in RC Tucker (ed), The MarxEngels Reader, 2nd edn (New York, Norton and Company, 1978) 84. 51   Douzinas, ‘Justice and Human Rights’ above n 11 at 127. 52   P Williams, ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard Civil Rights–Civil Liberties Law Review 401, 414.

248  Possibilities, Politics, Law debates over where the line between humans and ‘lesser’ animals sits, fundamentally complicate this premise.53 Meanwhile, it is patently clear in the codification of international human rights that certain types of human suffering may legitimately be excluded. This is illustrated by the right to housing, which demands that society take seriously as a matter of public concern those deficiencies and injustices which are normally hidden and sheltered within a home. The right to housing is an explicit demand that certain social ‘rectitudes’54 be treated as human rights. The limiting or ‘exclusive’ function of law, which necessarily draws boundaries between legitimate and illegitimate suffering, means that some human pain, and even anguish, will always fall outside the scope of legal redress. However, the uncontrollable interpretation of human rights remains unstoppable. Such interpretation illustrates the ‘destabilizing influence’ of ‘law as meaning’ on ‘law as power’.55 Thus, the role of the law in any emancipatory vision of human rights is a fraught one. Law functions as the ultimate gate-keeper to legal subjectivity and thus validates or denies full social membership in the human community. It draws lines, excising some human misery and deprivation from legal recognition within the category ‘human rights’. At the same time, however, law offers the potential to change: to recognise new human rights and draw within existing human rights hitherto unrecognised human suffering. Human rights law is, thus, a site of constant tension between claims for recognition and inclusion in full human personhood, made in the name of human rights, and the gate-keeping or exclusive function of the law. If human rights law is placed in a position of contradiction, it is not a position of impossibility. The power of human rights, which lies in their transformative promise, continues to exist, apart from the day-to-day reality of legal enforcement, or even legal acknowledgement. In fact, as Sundhya Pahuja argues, this site of conflict between the positive law and the symbolic claim is ‘crucial’.56 It is the space in which claims for political and legal subjectivity meet and the space in which these claims can bend the law in the direction of emancipation. Yet, this tension between the legal control of human rights and the unstoppable will to interpret,57 between consensus and the moment of dissensus, means that struggle will be a necessary and continuing part of any emancipatory human rights claim.

53   See Griffin, On Human Rights above n 2 ch 4 and CD Stone, ‘Should Trees have Standing: Towards Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450. 54  J Donnelly, ‘The Social Construction of International Human Rights’ in T Dunne and NJ Wheeler (eds), Human Rights in Global Politics (Cambridge, Cambridge University Press, 1999). 55   Cover, ‘Foreword: Nomos and Narrative’ above n 48 at 18. 56  S Pahuja, ‘Rights as Regulation: the Integration of Development and Human Rights’ in B Morgan (ed), The Intersection of Rights and Regulation: New Directions in Sociolegal Scholarship (Aldershot, Ashgate, 2007) 168. 57   C Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, Hart Publishing, 2000) 367.



Conclusion  249

Each human rights claimant may, like Sisyphus, have to toil to make his claim heard again and again. However, unlike Sisyphus, the human rights claimant is not doomed by the gods to roll the same sphere up the same mountain. The agency and political subjectivity of the claimant – her insistence on having the rights she does not have – means that there are no gods above to control her destiny. Nor is the task Sisyphean in nature. While the gains of our struggles ‘can become ossified and lose their emancipatory inspiration . . . they can also be reclaimed at any time by new struggles as references or principles’.58 Each claim to human rights by the rightless – each enactment of dissensus – is in itself both a statement of self-creation and a continuing critique of the injustice of the world. IV.  CONCLUSION: HUMAN RIGHTS UTOPIA AND FUNDAMENTAL HUMAN EQUALITY

The tensions and contradictions revealed in a deep analysis of the right to housing are what give the right its potency. Its openness to competing interpretations makes space for new visions of this right – and with these, new visions of the world. Because housing is a concrete, physical manifestation of the shape of the social order itself, these competing visions should not be understood as utopian ideals, but rather as struggles to determine and recreate the relationships among the state, society and individual. In its most essential incarnation, the right to housing is a prism through which to view the complex conflicts and contested questions about the shape of the world, and the boundaries of the possibilities for change and stability within and across societies. Such a politics for human rights can never be untainted by the messy and even, at times, violent struggles for social change made in the name of rights. Likewise, we can never seek to locate in human rights some determinative conceptual purity. Instead, human rights are the processes and results of the chaotic course of political contestation. But the fact that we may never reach an ideal end-state does not mean there is nothing worth struggling for. We are not, it must be remembered, struggling to realise a pure form of human rights, whether that be the perfect definition of the right to housing or the final list of legitimate human rights. Rather, we are struggling both for actual human emancipation in a world characterised by gravely unequal, exploitative and abusive social hierarchies, and also the recognition of fundamental human equality.

  Deranty, ‘Jacques Rancière’s Contribution to the Ethics of Recognition’ above n 29 at 153.

58

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Index Aboriginal see indigenous accessibility, 26–7 adequate standard of living, 7, 29, 134, 179, 245    right to, 16–17, 42, 91, 134, 179    children’s, 42–3, 89 administrative law, 103, 104, 135, 211 ADT v France, 54, 130n affordability, 24–5, 55, 58 African Charter on Human and Peoples’ Rights, 75, 82, 127 African Commission on Human and Peoples’ Rights, 75–82, 136, 180, 190, 194, 195 aggravated violation 61, 64–6 Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan, 116–18, 119, 131, 176–7, 181, 212, 216, 224 Akdivar v Turkey, 71 Almitra Patel v Union of India, 212–13 American Convention on Human Rights, 83–5, 86 American Declaration on the Rights and Duties of Man, 84–5, 86 Amnesty International, 118 Angela Poma Poma v Peru, 35–7 Apartheid, 94–7, 101, 103–7, 130, 135, 181–3 Arab Charter on Human Rights, 91–2 asylum seeker see refugee Australia, 190, 191–3 autonomy, 126, 131, 147, 153, 164–6, 175, 225, 231, 235–7, Balibar, Étienne, 237, 245 Bangladesh, 42 basic needs, 16, 24, 151    women’s provision of, 154, 187–9 Baxi, Updendra, 201, 241 Bedouin, 192    Bobbio, Norberto, 148, 236 Bombay Environmental Action Group v AR Bharati and Others see Borivili National Park case Bombay see Mumbai Borivili National Park Case, 210–11, 213 Brazil, 24, 86, 227n Buckley v UK, 68 Budayeva v Russia, 28n, 72 Bulgaria, 61–2, 65–6

Canada, 39–40, 42, 151, 190, 192, 195 Cecilia Kell v Canada, 39–40, 136, 153 Chameli Singh v State of Uttar Pradesh, 114–16, 131, 137, 151–2, 176, 205, 216 Chatterjee, Partha, 204n, 209–10, 219, 222n, 237n   children, 26, 41–3, 56–7, 88, 96, 247 city:    beautification, 209–17, 222    exclusive, 209–17, 221–2, 224   idealised, 207–9    modern space and, 207–9, 209–17, 219–23    nature of, 216    ownership of, 200, 209, 218–23, 224    regeneration schemes, 134, 143, 194, 198–227    right to, 199–200, 209, 222, 225–7 citizenship, 2, 5–6, 46, 56, 64, 96, 107, 146, 151, 160, 163, 166–8, 172, 176–7, 202–6, 183–97, 198–227    denial of, 215, 247    migrant domestic workers’, 160, 163   moral, 182    political, 95, 107, 173–4, 202–6, 209, 247    property and, 33, 173, 203–6    public/private distinction and, 146, 151–4, 158, 16–8, 184–7    role of family in, 186    role of Housing in, 107, 111, 116, 131, 146, 151–2, 160, 163, 166–8, 172, 173, 175–7, 181–97, 200–27, 231    unequal, 216, 224    women’s, 153–4, 157–8, 184–9, 243–4 civil society, 209–10, 215 COHRE v Croatia, 59–60 COHRE v France, 65–6 COHRE v Italy, 61n, 63–4 COHRE v Sudan, 78, 79–81, 127, 181 colonialism, 106, 146, 158, 183, 195, 201–4, 209, 216, 240–1   See also under housing policy class:    domestic work and,162–3    environment and, 210–17    property and, 175, 202–6 Committee on Economic, Social and Cultural Rights see under International Covenant on Economic, Social and Cultural Rights commodification anxiety, 162

270  Index communal rights, 29, 76–7, 81, 82, 181, 188 communitarianism, 171, 177–83, 184    African, 81, 180    duties and, 179, 183    rights and, 179 consumerism, 175, 177, 207, 220 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 46–8, 73, 125 Convention on the Elimination of all forms of Racial Discrimination, 43–6, 48, 125, 136, 184, 200–1 Convention on the Elimination of Discrimination Against Women, 39–41, 43, 48, 136, 153, 156 Convention on the Rights of the Child, 41–3, 48, 56 Corumbiara v Brazil, 86 Council of Europe, 49–50, 65, 66 critical legal studies, 239–41 Croatia, 59 –60 cruel, inhuman and degrading treatment:    destruction of housing as 34, 46–8, 73–4    forced eviction as 80   see also torture cultural relativism, 28 cultural rights, 8, 28, 35–6, 78–9, 86, 136, 189–97 customary international law, 16, 237 customary laws, 156–7 Czech Republic, 33 Darfur, 79–81 DCI v Netherlands, 53n, 56–7 De Gouges, Olympe, 243, 244 democracy, 116, 176– 7, 183, 212, 202–6    deliberative 101–2, 183 destitution, 2–3, 15, 56, 73–4, 130, 151, 240, 246 development, 224   agencies, 24    environment and, 210    fund as remedy, 90    right to, 79–80 Dharavi, 208, 214   dignity 8, 57, 64, 66, 96, 110, 118, 212, 242 Directive Principles of State Policy 111, 115 disappearances, forced, 85 discrimination, 13, 240, 184, 224, 240    access to housing and, 136, 167, 224     CEDAW, 39–41      CERD, 43–6, 48, 125, 184, 200–1     ICCPR, 32–5, 36      ICESCR, 26, 29, 32, 184, 200     RESC, 53–4, 58–66, 193      Under Apartheid, 94–6, 104–6, 181–3    economic status and, 87    Gypsy and Roma, 57–66, 191, 193

   indigenous peoples, 90–91, 194, 246    intersectional, 40–1, 136    women, 39–41, 155, 158, 184–9, 243–4, 247 displacement, 59, 86, 163, 245    development induced, 22, 96, 100, 104, 135, 192–3, 194    during armed conflict, 59, 77–81, 149, 194    forced, 34, 46–8, 60, 77–8, 79–81, 134, 135, 149, 181–3, 189–97, 206    indigenous groups and, 86, 88, 135, 189 –97, 246    internal, 34, 245   See also eviction ‘Dissensus’, 242–5, 248–9 domestic violence, 25, 40–1, 156 domestic workers, 145, 159–65, 167, 169 Donnelly, Jack, 187, 248 Douzinas, Costas, 236, 244, 247–8 Droit au Lodgement Opposable, 56 economic rights, 7–10 Edward Damburg case, 86 Eide, Asbjørn, 7–8, 16, 42, 186–7 elite:    rights of 115, 209–17   urban 202–6 Endorois case, 78–9, 81, 127, 181, 190, 194 Engels, Friedrich, 187 environment:    elite discourses of, 200, 210–17    right to, 37, 77, 114, 198, 209–17 equality, 26–7, 32, 33, 45–6, 87, 96, 112–13, 115–16, 118, 125–6, 135–6, 162–3, 177, 201, 217, 225    nature of, 156–7, 201, 211, 216–17, 236–7, 240, 242–9    women’s, 23, 26–7, 32, 39–41, 152–9, 184–9   See also discrimination ERRC v Bulgaria, 61–2, 66, 191n ERRC v France, 65n, 193 ERRC v Greece, 53n, 61–2 ERRC v Italy, 62–4 ERTF v France, 65–6 European Committee of Social Rights, 50–67, 123–4, 130, 132, 133, 136, 137, 191, 193 European Convention on Human Rights, 49, 67–75, 80, 82, 125–6, 127, 128, 151 European Social Charter see Revised European Social Charter European Union, 49–50, 65 eviction, 22, 57    destruction of housing and, 79–80, 85–6, 97, 127, 193, 219, 222    during armed conflict, 77–8    duty to rehouse or compensate, 66, 101, 111–19, 124, 130, 209, 210–11

   forced, 21–3, 33–4, 61–6, 78, 79–81, 85–6, 96, 97–108, 111–19, 124, 135, 181–3, 192, 194–5, 205, 209, 210–11, 219, 222     domestic violence as, 156      violating communal right, 77, 181    grounds for legal, 66, 104, 111–13, 117    relationship to other rights violations, 22, 80–1, 92, 111–19    social control and, 65–6, 85–6, 182–3, 194–95, 205, 222–3   expulsion, 63, 65–6, 85–6, 193 Fadeyeva v Russia, 70 fair trial, right to, 86, 234 family:    economic unit, 186–9    fundamental social unit, 34, 76, 81, 181, 186    human rights within, 25, 157–58, 187–9    idealisation of, 172, 184–9, 197    life, right to, 64, 68–71, 128,137    nuclear, 153–4, 185–9    privacy and,147, 153–4    public/private distinction and, 153– 4, 157–8, 184–9    right to Housing of, 53, 58, 64, 68–71, 77, 126, 158, 182   wage 154 FEANTSA v France, 54–6, 124 FEANTSA v Slovenia, 58–9 female-headed households 158, Fox, Lorna, 164, 170, 173, 226, 227 France, 50, 51, 54–6, 61, 65–6, 193 Francis Coralie Mullin v Administrator, Union Territory of Delhi, 110, 111, 126 free, prior and informed consent, 36, 79 freedom:    from want, 15    homelessness and, 150–1, 159    nature of, 146–7, 148, 198, 231, 235–9, 245    of expression, 137, 225, 234    of movement, 32, 80, 86, 225    spatial aspect of, 150–1, 159 French Declaration of the Rights of Man and the Citizen, 243 General Comment 4, 20–9, 31 54, 79, 80–1, 90, 97–8, 123, 131–2, 158, 179–80, 184, 192, 195, 200 General Comment 7, 20, 31, 54, 80–1, 97–8, 184, 200 General Comment 3, 18–9, 98 General Comment 16, 26 General Comment 20, 26 ghettoisation, 28, 63 globalisation, 32, 224, 240, governance, 112, 132, 143, 198, 217–23, 224 Greece, 61–2

Index  271 Grootboom case, 95, 96–100, 104, 124, 130, 182 Gypsy, 44–8, 54, 60–6   See also Roma habitability 25–6, 156 Hajrizi Dzemajl et al v Serbia and Montenegro, 46–8 Hazareesingh, Sandip, 202–3 health 16, 23, 25, 27, 52, 55, 68, 90, 96, 124, 148, 180    right to, 28, 35, 56, 76–7, 80, 85, 92, 109, 181 Hegel, 164, 174 Hobsbawm, Eric, 175, 176n, 177 home:    definition of, 4–5, 169    domestic workers and, 145, 159–65    homeland and, 40, 86, 172, 191, 195–6, 244    idealisation of, 142, 169, 172, 184–9   identity and see under Identity    maternal aspect of, 185   ownership see under property    possessory interest in, 69    as private space, 68, 145, 146–7, 159–66, 236    protection against interference, 68–71, 85    psychological importance of, 169, 193–4    right to, 39–41, 59    as sanctuary, 153, 160, 164, 166, 185    subjective elements of, 145, 159, 164, 169, 193–4, 226–7    women’s rights and, 39–41, 136, 142, 145, 152–9, 184–9 homelessness, 52, 54, 67, 69, 74, 106, 142–3, 145–68, 246    children’s, 42, 56–7    definition of, 167, 193    effects of, 34, 148–9    evictions and, 22, 62    invisible, 145, 149, 156–7, 164    legally constructed, 145, 149–50, 153–9    privacy and, 143, 145–68    public perception of, 148, 150, 175–6, 209–17    right to exist and, 150–1, 163    street persons’, 145, 148–52, 156, 157, 159, 163, 164, 165, 175, 244    women’s Essential, 26, 145, 152–9, 165, 167, 185, 244 housing:    adequate, 21, 29, 55, 61, 90, 100, 132, 134, 151, 156, 167, 192, 231    as asset, 24, 170, 175   citizenship and see under citizenship    communal aspects, 82, 142, 172, 179–81, 193–4, 231    cultural aspects, 8, 28–9, 31–2, 36, 81, 136, 143, 166, 169–70, 172, 176, 179–80, 192–6    destruction of, 25, 34, 46–7, 68, 71, 73–4, 77–80, 85–6, 127, 181, 193

272  Index housing (cont.):    as family home, 158, 172, 178–80, 184–9   identity and see identity    importance to realisation of other rights, 92, 39–41, 125, 126, 142–3, 231    informal, 25, 34, 62, 68, 71–2, 103, 113, 134, 175, 202–27, 241, 245        aesthetics of, 202–6      causes, 96, 106–7, 112–3, 223      challenge to state by, 218–24, 227      control of, 25, 117, 199, 202–6, 223, 224      formalisation, 62, 113–4, 216, 217, 220, 223–4      India, 111–19, 131, 202–27, 247       changing attitude to, 210–17, 221       chawls, 202, 206       conditions in, 206       costs of, 220       density of, 205–6, 208       economic power of, 214–25       encroachment and, 117, 210–17       middle class, 214       social and economic role of, 214–17, 245       ‘vote banks’, 114     power of, 217–23     redevelopment of, 180, 204      South Africa, 97–108, 217    national development and, 106–7, 178, 180–82    non-commodifiable aspect of, 173–7, 189–97, 226–7, 231    non-discrimination in, 26, 39, 43–6, 53, 58, 61, 63, 136, 194, 200–1    personhood and, 146, 171, 173–8     See also under property    physical structure of, 4–5, 132, 134, 143, 145–6, 152, 155, 169–70, 172, 178, 188–9, 198, 223, 249   policy:      coercive, 171–2, 159, 162, 164–5, 181–3, 189–97      colonial, 143, 183, 189–97, 200–2, 240      modernisation and, 192, 194, 202–6, 209–17, 219–23    as remedy for rights violation, 46, 48, 60, 89–91, 125, 127   right to see right to housing    rights, 5–7, 33, 194    social, 6, 54, 64, 71, 175, 193    social aspect of, 27–8, 31–2, 40, 63, 70, 76–78, 81–2, 116, 136, 143, 166, 169–70, 177–83, 193–4, 212, 224–7, 231    social transformation and, 143, 153, 182–3, 198–227, 232    spatial aspect of, 27, 142, 147, 149–50, 155, 165–71, 196, 198–227, 249

   State provided, 57–60, 184–9, 204–6, 217–18, 221, 225–6          human rights see under rights humanism, 87 identity, 142–3, 169–97, 231    community and, 178–83, 194    cultural, 32, 78–9, 142, 189–97    definition of, 169, 171    home and, 164, 169–70, 174, 193–4,    housing as locus of, 81, 142, 180, 226–7, 231    indigenous, 78–9, 142, 172, 189–97, 244    legally constructed, 189–91    national, 171, 181–2, 195    socially constructed, 169    women’s, 172, 184–9, 237    work and, 160, 237 India, 94, 108–119, 126, 127, 130–31, 133, 137, 142, 150–2, 176–7, 192–3, 198–227, 247 indigenous:    acculturation, 172, 189–97    annihilation of, 89, 193, 195–7   assimilation see acculturation   children, 42    housing policy, 143, 172, 189–97, 246   identity see under Identity    lands, 78–9, 86, 88, 136, 172, 190–7, 246    rights, 36, 78–9, 176    status, 78–9, 189–90 Inter-American Human Rights System, 83–92, 126, 129, 136, 137, 176, 190, 198 International Covenant on Civil and Political Rights, 32–7, 73, 125 International Covenant on Economic, Social and Cultural Rights, 17–32, 36, 42, 45, 52, 54, 80, 82, 92, 97–98, 122–4, 116, 130, 136, 158, 179    Committee on Economic Social and Cultural Rights, 17–32, 122–4, 130, 131–2, 133, 134, 136, 179, 184, 192, 195    Definition of right to housing under, 122–4    Optional Protocol to, 19–20, 29–31, 123   See also General Comment 3, 4, 7, 16 and 20 International Labour Organisation Convention 169, 189–90 Inuit, 190, 192   See also under indigenous Ireland, 70, 151 Israel, 34, 36, 47–8, 192 Italy, 61, 62–5, 73–4 Joe Slovo case, 100, 101, 102, 103–7, 130, 136, 137, 182–3 Joginder Pal v Naval Kishore Behel, 222 judicial activism, 108, 109–10, 113–15, 205 jus cogens, 237

K Chandru v Tamil Nadu, 111, 113–14 Kenna, Padraic, 21, 71, 238 Kenya, 78–9, 81 Kurra Subba Rao v District Collector, 177 Kyalami Ridge case, 103 land, 173, 176,    access to, 27, 134, 150, 182–3, 202–6, 208, 215,   indigenous land see under indigenous   law, 147    reform, 23, 115,   restitution, 79    rights, 27, 78–7, 128, 131, 135–6, 155, 177, 195–7, 246    tenure, 23, 32, 71, 134–5,    women and, 23, 32, 145, 155, Langford, Malcolm, 6, 235 Lefebvre, Henri, 6, 216, 225–7 legal subjectivity, 136, 159, 195, 231, 246–9    denial of, 63, 195    space and, 198–227   terra nullius and, 195    women’s, 154, 185, 243–4, 247 liberalism 133, 146–7, 158, 179, 241    economic, 177, 203, 240    neo-, 177, 221 life:   family see under family    with flourishing, 114, 118, 126, 151–2, 165, 167, 176–7, 236, 239    material conditions and, 48, 74, 88–9, 110–19, 137, 151, 176, 203, 205, 212, 226, 231    private, 35, 67–71, 73–4, 126, 147–68    right to, 42, 72–4, 78, 85, 87–9, 93, 94, 126, 151, 198, 211      with dignity, 16, 36–7, 108–19, 126, 129, 151, 205, 211–2       see also vida digna liberty, 80, 137, 148, 151, 109, 175, 177, 179, 181, 212, 233, 235, 240   Limbuela v Secretary of State, 74, 137, 151 location, 8, 21, 27–8, 155, 166, 170, 179–80, 184, 198, 200, 225–6 LR v Slovak Republic, 44–6, 48, 191n MacKinnon, Catharine, 158–9 Malpe Vishwanath Acharya v State of Maharashtra, 221 Maneka Gandhi v Union of India, 110 Marcuse, Peter, 214, 216–7, 223 margin of appreciation, 62, 72 marginalisation see social exclusion Marks, Susan, 134, 245    and Andrew Clapham, 149, 157, 168 Marx, Karl, 133, 240, 247 Marzari v Italy, 69n, 73–4

Index  273 maximum available resources, 18–9, 31, 52, 96, 98, 106, 124 Mentes v Turkey, 68, 73n Migration, 56, 65, 113, 117, 163, 202, 204, 212–3 minimum core obligation, 18–21, 23, 98, 102, 130 Modderklip Boerdery case, 103 modernity 143, 192–3, 194, 202, 206–9, 209–17, 219–23 Moiwana Village v Suriname, 86, 90n Moldovan v Romania (No 2), 73 Mumbai, 24, 111, 114, 142–3, 198–227   Narmada Dam case, 192–3, 194 nationality see citizenship Netherlands, 44, 56–7 Nigeria, 76–8, 81 nomads, 62, 192–3, 195 NSF v Great Britain and Ireland, 41, 156 O’Cinneide, Colm, 74 O’Connell, Paul, 6, 108 O’Donnell v South Dublin County Council, 70, 151 Occupiers of 51 Olivia Road case, 101 Ogoni case, 76–8, 80, 81, 127, 181 Olga Tellis v Bombay Municipal Corporation, 111–19, 131, 137, 150–1, 205, 211, 213, 216 Öneryildiz v Turkey, 71–2 participation see social inclusion pavement dwellers, 111, 112–18, 131, 145, 148–52, 157, 159, 164, 166, 205–6, 211–12, 224 pedestrians, rights of, 112, 117–8 place, 167, 193–4, 199, 225–7 Plan de Sanchez Massacre (Guatemala) case, 89, 90n Port Elizabeth Municipality case, 101, 182 poverty, 74, 112–3, 118, 148, 155, 165, 199, 200, 202–17, 221–3, 240, 245    as pollution, 210–17    rightlessness and, 214–17, 244 Prakash, Gyan, 203, 206, 216 progressive realisation:    African Charter, 76   ICCPR, 36    ICESCR, 17–20, 23, 31, 123    Inter-American human rights system, 85, 89   RESC, 63    South Africa, 96, 98, 100, 106 privacy, 142–3, 145–68    domestic workers’, 159–65, 167    enforced, 152–9, 165    homelessness, and, 145–68, 185    nature of, 146, 198

274  Index privacy (cont.):    privation and, 157, 159, 167, 185    right to, 32, 85, 109    spatial dimension of, 147, 167    state protection of, and, 147–8, 168    women and, 152–9, 185 private:    law approach to rights, 102–3, 107, 135, 211   life see under life    space, 145, 149–59, 160–66 privatisation, 24, 54, 58, 207–8, 221–3 property:   collective, 150    confiscation, 57–60, 114     compensation for, 59–60    law, 147, 171, 173, 177, 195    livelihood and, 114–5    ownership, 6, 57–60, 162, 164, 171, 173–8, 240     and civic virtue, 173–8    personhood and, 171, 173–8    protection of, 69, 71–3, 173   restitution see restitution    right to, 32, 40–1, 57–60, 195      African Charter, 76, 79–81, 181     Americas, 86, 176     India, 114–5, 177, 202–6     informal sector and see under housing      women’s, 23, 32, 39–41, 145, 152–9, 165, 167    right to exclude and, 150, 162, 176, 202–6    tension with right to housing, 57–60, 103, 128, 211 public/private:    complementarity of, 159–67, 226, 235–7    distinction, 146–8, 149–51, 153–66, 170, 235–37    domestic workers, 159–65    family and, 146–7, 153–4, 157–8, 185–9    homelessness and, 145–68    housing/home as physical manifestation of, 147, 166    impact on human rights law, 154, 159–60    market and, 147, 154, 161–3, 185–9 R (ex parte Adam) v Secretary of State, 74 R (on the application of Bernard) v Enfield LBC, 70, 151 Radin, Margaret, 174–5 Rancière, Jacques, 242–49 reasonableness:    ICESCR Optional Protocol and, 30–31    South Africa, 96–108, 124–5, 130, 131, 135 refugee, 74, 247 regressive steps, 18, 24, 63 regulation, 146, 236 Reisman, Michael, 235, 237

remedies    in the Americas, 85, 89–91, 126–7    courts and, 134    Europe, 60, 66, 70    India, 109, 119    South Africa, 135    under subject specific human rights covenants, 44, 45, 46, 48–9, 125 rent control, 24–5, 204, 221–2 reparation, 66, 85, 86 resettlement, 27–8, 105, 106, 111, 113, 128, 130, 134, 180, 194–5, 209, 246 restitutio in integrum, 46, 89–91 restitution, 33, 57–60 Revised European Social Charter, 9, 49–67, 92, 123–4, 193   see also European Committee of Social Rights right to housing:    children’s, 41–3, 56–7, 88, 89    CESCR’s work as pinnacle of, 20, 31, 45, 52, 54, 123–4    as constitutional right, 94–119, 205    cultural elements of, 31, 92, 128, 136, 176, 179–80, 189–97    definition of, 5–7, 121–9, 156, 195, 246     African charter, 80     India, 119, 126     RESC, 55, 61, 124      South Africa, 98, 100–1, 124–5, 130, 135, 181–3    financial implications of, 19, 24, 31, 52, 188, 196, 232    implied, 38, 49, 76–82, 85–91, 93, 94, 108–19, 126, 127, 181    meaning of, 2, 141–3    normative basis of, 7–10, 100–1, 108, 120–9, 141–3, 150–51, 234    obligations, 2, 9, 120, 122, 123, 124, 126, 128, 129, 131, 137, 185, 189, 226, 234–5     in the Americas, 88–9     India, 111, 115, 116      South Africa, 96, 97, 98, 99, 100, 107, 129, 238     under CAT, 46      under ECHR, 67, 69, 70, 72–4     under ICCPR, 36     under ICESCR, 17–31, 130      under RESC, 52–4, 57, 60–4, 130    problems with current interpretation, 2, 120–138, 196–7, 225, 231, 234, 239    procedural, 2, 102, 104, 110, 119, 121, 126, 129–34, 135, 137, 225, 231, 234    programmatic, 2, 120, 121, 122–4, 129–33, 137, 231, 234    realisation of, 20, 21, 28, 29, 32, 50, 67, 121–5, 131–7, 141, 150, 198, 217, 225, 231

   relationship to land, 23, 26–7, 32, 40, 71, 78–82, 86–8, 89–91, 104–6, 114–5, 128, 135, 136, 145, 155, 172, 182, 190–6, 202–6    as right to life see under life    as right to social inclusion see under social inclusion    role of state in, 32, 54, 168, 233–7    seven elements of see General Comment 4    social elements of, 31, 27–8, 77, 79, 116, 122, 136, 137, 179–83, 212, 225–7    as social inclusion, 142, 151–2, 166–8, 181–3, 199–227, 231, 242–9    spatial aspect of, 198–227    substantive, 6, 18–9, 73–3, 87–91, 102, 104, 105, 108, 127, 129, 130 rightlessness, 242–49    homelessness as, 152, 165–8    space and, 214–217 rights:    categories, 7–10, 64, 69–70, 76, 78, 87–9, 108, 118, 141–3, 202–6, 231, 233–5    civil and political 8–9, 16, 29, 32–7, 64, 73, 78, 92–3, 109, 118, 141, 202–6, 232    conflicts of, 81, 232, 236    economic, social and cultural, 7–10, 137, 141, 232, 234–5      justiciability of, 85, 95, 99, 119, 234      role of courts in, 94, 141   human:     agency and, 232, 239–49     as apolitical, 233–40      control of, 127, 198–227, 232–49      emancipation and, 121, 129, 133–38, 177, 225–7, 231–49     generations, 87, 179     human being and, 241–9      indivisibility of, 7–8, 74–5, 76–8, 118, 136, 231–2, 234–5      institutional design and, 234–8      law and, 232, 234, 239, 246–9      monitoring bodies, 29, 30, 123–4, 134, 137     mythologies, 233–7, 238–9, 240      nature of, 5, 187–89, 239–49      political claims and, 6, 122, 142, 232–49      radical potential of, 2, 3, 121, 127, 129, 137, 172, 185–9, 231–49     as relational, 236–7, 242–9     Rights Committee, 32, 35      role of state in, 1–2, 200, 232, 234, 233–7      social transformation and, 95, 100, 120, 200, 231–49      women’s, 23, 39–41, 48, 88, 153–9, 184–9, 243–4, 247      negative, 26, 69–70, 74, 88, 98, 99, 101, 170, 200, 225, 234–5   peoples’, 78–9

Index  275   positive:      housing and, 22, 26, 37, 42, 60, 62, 64, 67, 69–70, 72–4, 78, 87, 88, 131–3, 184–9, 225, 238      nature of, 7–10, 200, 232, 234–7    recognition of, 6, 121, 187, 198, 215, 231, 239, 242–9    socio-economic conditions and, 16, 33, 35–7, 73–4, 85, 87–91, 111–19, 130, 137, 202–4, 212, 233, 236–7    spatiality of, 149–50, 198, 209–17    to an act, 133    to exist, 8, 145, 149–50, 159, 163, 195, 197, 198, 201, 214–17    to space, 142, 199, 216–17, 223–7 Roma 34, 44–8, 54, 60–6, 73, 191, 193   see also Gypsy Romania, 65, 73 Rousseau, Jean Jacques, 216 Russia, 70, 72 Sassen, Saskia, 222, 227 Sawhoyamaxa Indigenous Community v Paraguay, 87n, 88, 90n, security of tenure, 21–3, 32, 60, 96, 122, 135    domestic violence and, 156   women’s, 156–7 segregation, 61–4, 95–7, 181–3, 184, 191, 200 Selçuk and Asker v Turkey, 73 Semayne’s Case, 173 Serbia and Montenegro, 46–8 Shanghai, 205, 207 Shantistar Builders v Narayan Khimalal Totame, 114 shelter, 47, 56–7, 106, 143, 151, 152, 164, 183, 187, 194, 206, 241    right to, 20, 23, 70, 74, 76–82, 81, 88, 110–18, 126, 127, 151, 152, 176–7    children’s, 57, 96 Shue, Henry, 9, 238 Sinti see Roma, Gypsy Slovak Republic, 44–5 Slovenia, 58–9 slum see informal housing under housing social:    control through housing, 34, 71, 143, 183– 97, 198–227    exclusion, 28, 53, 61, 148, 183–97, 209–17, 220–3, 244    housing, 6, 54, 64, 71, 175, 193   inclusion, 242–9      role of housing in, 27, 95–6, 106, 111–18, 126, 131, 134–7, 151–2, 165–8, 174–83, 193, 199–227, 231    justice, 108, 114–5    rights, 7–10, 202–6 South Africa, 94–108, 124, 130, 132, 135–6, 137, 181–3, 211, 217, 238

276  Index Space, 142–3, 198–227    aesthetics and, 206, 208–9, 223    contestation of through rights, 202–6, 209–17    existence and, 149–51, 214–17    homelessness and, 149–50, 160, 165, 167    planned, 218–23, 225–6    right to, 142, 199, 209–7, 223–7    social marginalisation and, 95, 199–227    state control of,167, 207–27    transformation of, 206–27 state:    power, 217–23, 235–7, 240       retreat of, 208    role in human rights, 1–2, 200, 232, 234, 233–7    sovereignty, 143, 199, 217–23     and space, 217–23 statelessness, 152, 156, 163 street person see under homelessness Sudan, 79–81 tenants, 6, 24, 33, 57–60, 69, 71, 147, 176, 222, 224 terra nullius, 195   torture, 234, 237–9 transformative constitutionalism, 95, 100, 102, 130, 135, 182–3 Travellers see Roma, Gypsy Turkey, 68, 71–73 United Kingdom, 70, 74, 137, 151, 173 United Nations Special Rapporteur on Adequate Housing, 54, 155 United States, 86, 173, 246 Universal Declaration of Human Rights, 7, 8, 15–17, 42, 84, 92, 116, 179, 186–7, 244 unlawful occupier, 104–6 urban planning, 34, 68, 117, 206–9, 218–23, 225–6 urbanisation, 32, 119, 134, 198–227 Verdirame, Guglielmo, 141, 244

Victoria (City) v Adams, 151, 152 vida digna, 85, 87–9, 93 Vision Mumbai, 199, 206–9, 220, 223, 224 vote, right to, 64, 148, 173–4, 203, 204, 215, 247 vulnerability, 40, 47, 54–7, 60, 64–5, 70, 73–4, 87–9, 90, 114–16, 181, 195, 212, 245    Waldron, Jeremy, 149–50, 163, 165, 238 welfare:    entitlements, 6, 148, 195    state, 132, 221 Williams, Patricia, 215, 247 women:    citizenship of, 153–4, 157–8, 184–9, 243–4    discrimination against, 39–41, 155, 158, 184–9, 243–4, 247    equality, 23, 26–7, 32, 39–41, 152–9, 184–9, 243–4,    essential homelessness, 26, 145, 152–9, 165, 167, 185, 244    identity, 172, 184–9, 237    ideology of home and, 39, 142, 184–9    land and, 23, 32, 145, 155    legal subjectivity of, 154, 185, 243–4, 247    privacy and, 152–9, 185    provision of basic needs by, 154, 187–9    right to home and, 39–41, 136, 142, 145, 152–9, 184–9    right to property of, 23, 32, 39–41, 145, 152–9, 165, 167 Woolf, Virginia, 157   work:    legal regulation of, 161    public/private distinction and, 159–65, 185–9, 237    right to, 32, 109, 110, 111 Yakye Axa Indigenous Community v Paraguay, 88, 89, 90–1 Zoning, 103, 194, 245