By Accommodation Times Research
RIGHT TO SHELTER
In various cases, the Supreme Court has enlarged the meaning of life under Article 21 of the Constitution to include within its ambit, the right to shelter. In some of the cases upholding the right to shelter, the Court looked at differentiating between a mere animal-like existence and a decent human existence, thereby bringing out the need for a respectable life.
Upholding the importance of the right to a decent environment and a reasonable accommodation, in Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520: AIR 1990 SC 630 the Court held that,
“The right to life 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. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fireproof accommodation,”
In Chameli Singh v. State of U. P [(1996) 25CC549 132] a Bench of three Judges of this Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. In para 8 it has been held thus : (SCC pp. 555-56)
“In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to sachieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.”
Emphasizing further on the right to shelter, the Court in this case held that,
“Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to a 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. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself.”
In PC Gupta Vs State of Gujarat and Ors, in 1994, the Court went further holding that the Right to shelter in Article 19(1) (g) read with Articles 19(1) (e) and 21, included the right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. The right to residence and settlement was seen as a fundamental right under Article 19(1)(e) and as a facet of inseparable meaningful right to life as available under Article 21.
In Ahmedabad Municipal Corporation, Appellant V. Nawab Khan Gulab Khan And Others, the Court observed that,
“Article 19(1) (e) accords right to residence and settlement in any part of India as a fundamental right. Right to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of the Universal Declaration of Human Rights declares that everyone has the right to a standard of living adequate for the health and well-being of himself and his family; it includes food, clothing, housing, medical care and necessary social services. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights lays down that State parties to the Covenant recognise that everyone has the right to standard of living for himself and his family including food, clothing, housing and to the continuous improvement of living conditions.”
As recognized by several human rights bodies of the UN, the full enjoyment of rights such as the right to human dignity, the principles of non discrimination, the right to an adequate standard of living, the right to freedom to choose one’s residence, the right to freedom of association and expression and the right not to be subjected to arbitrary interference with one’s privacy, family, home or correspondence is indispensable for the right to adequate housing to be realized, possessed and maintained by all groups in society.
At the same time, having access to adequate, safe and secure housing substantially strengthens the likelihood of people being able to enjoy certain additional rights. Housing is a foundation from which other legal entitlements can be achieved. For example: the adequacy of one’s housing and living conditions is closely linked to the degree to which the right to environmental hygiene and the right to the highest attainable level of mental and physical health can be enjoyed. The World Health Organization has asserted that housing is the single most important environmental factor associated with disease conditions and higher mortality and morbidity rates.
This relationship or “permeability” between certain human rights and the right to adequate housing show clearly how central the notions of indivisibility and interdependence are to the full enjoyment of all rights. Everyone, therefore, has the right to adequate housing, and should have sustainable access to natural and common resources, clean drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage facilities, refuse disposal, site drainage and emergency services.
The right to adequate housing is one of the economic, social and cultural rights to have gained increasing attention and promotion, not only from the human rights bodies but also from the United Nations Centre for Human Settlements (Habitat). This began with the implementation of the Vancouver Declaration on Human Settlements issued in 1976, followed by the proclamation of the International Year of Shelter for the Homeless (1987) and the adoption of the Global Strategy for Shelter to the Year 2000, by the United Nations General Assembly in 1988.
The right to adequate housing forms a cornerstone of the Global Shelter Strategy: The right to adequate housing is universally recognized by the community of nations…All nations without exception, have some form of obligation in the shelter sector, as exemplified by their creation of housing ministries or housing agencies, by their allocation of funds to the housing sector, and by their policies, programmes and projects. All citizens of all States, poor as they may be, have a right to expect their Governments to be concerned about their shelter needs, and to accept a fundamental obligation to protect and improve houses and neighbourhoods, rather than damage or destroy them.
Adequate housing is defined within the Global Strategy as meaning: adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities-all at a reasonable cost.
The right to adequate housing and the necessity to ensure access to basic services by implication has also been addressed in many resolutions adopted by all types of United Nations decision-making organs. Most of the resolutions concerning housing rights have been directed at Governments, with a view to encouraging them to do more to realize this right. These include,
International Conventions and Covenants:
International Covenant on Economic, Social and? Cultural Rights (1966)
International Convention on the Elimination of All? Forms of Racial Discrimination (1965)
Convention on the Elimination of All? Forms of Discrimination Against Women (1979)
Convention on the Rights of the? Child (1989)
Convention Relating to the Status of Refugees? (1951)
International Convention on the Protection of the Rights of All? Migrant Workers and Members of their Families (1990)
International Declarations and Recommendations:
oUniversal Declaration of Human Rights (1948)
oDeclaration of the Rights of the Child (1959)
oInternational Labour Organization Recommendation No. 115 concerning Worker’s Housing (1961)
oDeclaration on Social Progress and Development (1969)
oDeclaration on the Rights of Disabled Persons (1975)
•Vancouver Declaration of Human Settlements (1976)
•United Nations Educational, Cultural and Scientific Organization Declaration on Race and Racial Prejudice (1978)
•International Labour Organization Recommendation No. 162 concerning Older Workers (1980)
•Declaration on the Right to Development (1986)
•Global Strategy for Shelter to the Year 2000 (1988)
•Agenda 21 (UNCED, 1992)
•Vienna Declaration and Programme of Action (1993)
•Copenhagen Declaration and Programme of Action (1995)
•Beijing Declaration and Platform for Action (1995)
•Istanbul Declaration on Human Settlements (1996)
•Habitat Agenda (1996)
•General comments adopted by the Committee on Economic, Social and Cultural Rights:
Selected United Nations Resolutions:
General Assembly? resolution 41/146
General Assembly resolution 42/146?
Economic and Social? Council resolution 1987/62
Commission on Human Rights resolution? 1986/36
Commission on Human Rights resolution 1987/22?
Commission on? Human Rights resolution 1988/24
Commission on Human Rights resolution? 1993/77
Commission on Human Settlements resolution 14/6?
Sub-Commission? on Prevention of Discrimination and Protection of Minorities resolution 1991/12
Sub-Commission on Prevention of Discrimination and Protection of? Minorities resolution 1991/26
International Conventions and Covenants
1. International Covenant on Economic, Social and Cultural Rights (1966)
International Covenant on Economic, Social and Cultural Rights, adopted by United Nations General Assembly in resolution 2200A(XXI) of 16 December 1966, entered into force on 3 January 1976, 143 States Parties as of November 2000. The Committee on Economic, Social and Cultural Rights monitors state compliance with the Covenant. Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights and considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, this Covenant laid down certain principles.
1. Article 6 states
“1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”
2. Article 11.1 states:
“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 cooperation based on free consent.”
2. International Convention on the Elimination of All Forms of Racial Discrimination (1965)
International Convention on the Elimination of all Forms of Racial Discrimination, adopted by the United Nations General Assembly in resolution 2106A(XX) of 21 December 1965, entered into force on 4 January 1969, 156 States Parties as of November 2000. The Committee on the Elimination of All Forms of Racial Discrimination monitors states compliance with the Convention.
Article 5 states:
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination 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”.
3. International Convention on the Elimination of All Forms of Discrimination Against Women (1979)
International Convention on the Elimination of all Forms of Discrimination Against Women, adopted by the United Nations General Assembly in resolution 34/180 of 18 December 1979, entered into force on 3 September 1981, 166 States Parties as of November 2000. State compliance with the Convention is monitored by the Committee on the Elimination of All Forms of Discrimination Against Women.
Article 14.2 states:
“States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right … (h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications”.
4. Convention of the Rights of the Child (1989)
Convention on the Rights of the Child, adopted by the United Nations General Assembly in resolution 44/25 of 20 November 1989, entered into force on 2 September 1990, 191 States Parties as of November 2000. State compliance with this Convention is monitored by the Committee on the Rights of the Child.
1. Article 16.1 states:
“No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation”.
2. Article 19.1 states:
“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”
3. Article 27.3 states:
“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 case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing”.
4. Article 37 states:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”
5. Convention relating to the Status of Refugees (1951)
Convention relating to the Status of Refugees, adopted by the United Nations General Assembly in resolution 429(V) of 28 July 1951, entered into force on 22 April 1954.
Article 21 states:
“As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances”.
6. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, adopted by the United Nations General Assembly in resolution 45/158 of 18 December 1990, and will enter into force when at least 20 States have accepted it. State compliance with this Convention will be monitored by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Article 43.1 (d) states:
“Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to … (d) Access to housing, including social housing schemes, and protection against exploitation in respect of rents”.
International declarations and recommendations
1. Universal Declaration of Human Rights (1948)
The Universal Declaration of Human Rights adopted and proclaimed by the United Nations General Assembly in resolution 217A (III) of 10 December 1948.
Article 25.1 states:
“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”.
2. Declaration of the Rights of the Child (1959)
Declaration of the Rights of the Child, proclaimed by the United Nations General Assembly in resolution 1386(XIV) of 29 November 1959.
Principle 4 states:
“The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end special care and protection shall be provided to him and his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing, recreation and medical services”.
3. International Labour Organization Recommendation No. 115 concerning Worker’s Housing (1961)
International Labour Organisation Recommendation No. 115 concerning Worker’s Housing, adopted at the forty-fifth session of the ILO Governing Body on 7 June 1961.
a. Section II (Objectives of National Housing Policy), paragraph 2 states:
“It should be an objective of national [housing] policy to promote, within the framework of general housing policy, the construction of housing and related community facilities with a view to ensuring that adequate and decent housing accommodation and a suitable living environment are made available to all workers and their families. A degree of priority should be accorded to those whose needs are most urgent”.
b. Section III (Responsibility of Public Authorities), paragraph 8.2 (b) states:
“The responsibilities of the central body should include formulating workers’ housing programmes, such programmes to include measures for slum clearance and the re-housing of occupiers of slum dwellings”.
c. Section VI (Housing Standards), paragraph 19 states:
“As a general principle, the competent authority should, in order to ensure structural safety and reasonable levels of decency hygiene and comfort, establish minimum housing standards in the light of local conditions and take appropriate measures to enforce these standards”.
Suggestions Concerning Methods of Application, Section I, paragraph 5, states:
“The competent authorities should give special attention to the particular problem of housing migrant workers and, where appropriate, their families, with a view to achieving as rapidly as possible equality of treatment between migrant workers and national workers in this respect”.
4. Declaration on Social Progress and Development (1969)
Declaration on Social Progress and Development, proclaimed by the United Nations General Assembly in resolution 2542 (XXIV) on 11 December 1969.
Part I, article 6 states
“Social development requires the assurance to everyone of the right to work and the free choice of employment. Social progress and development require the participation of all members of society in productive and socially useful labour and the establishment, in conformity with human rights and fundamental freedoms and with the principles of justice and the social function of property, of forms of ownership of land and of the means of production which preclude any kind of exploitation of man, ensure equal rights to property for all and create conditions leading to genuine equality among people”.
Part II, article 10 (f) states:
“Social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms, through the attainment of the following main goals:
(f) The provision for all, particularly persons in low-income groups and large families, of adequate housing and community services.”
5. Declaration on the Rights of Disabled Persons (1975)
The Declaration on the Rights of Disabled Persons, proclaimed by the General Assembly resolution 3447 (XXX) of 9 December 1975.
Article 9 states:
“Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age”.
6. Vancouver Declaration of Human Settlements (1976)
Vancouver Declaration on Human Settlements, adopted by the United Nations Conference on Human Settlements in 1976.
Section III.8 states:
“Adequate shelter and services are a basic human right which places an obligation on Governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided programmes of self-help and community action. Governments should endeavour to remove all impediments hindering attainment of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through the creation of better balanced communities, which blend different social groups, occupations, housing and amenities”.
Chapter II.A.3 states:
“The ideologies of States are reflected in their human settlement policies. These being powerful instruments for change, they must not be used to dispossess people from their homes or land or to entrench privilege and exploitation. The human settlement policies must be in conformity with the declaration of principles and the Universal Declaration of Human Rights”.
7. United Nations Educational, Cultural and Scientific Organization Declaration on Race and Racial Prejudice (1978)
United Nations Educational, Cultural and Scientific Organization Declaration on Race and Racial Prejudice, adopted at the twentieth session of the General Conference on 27 November 1978.
Article 9.2 states:
“Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary, while ensuring that they are not such as to appear racially discriminatory. In this respect, particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged, so as to afford them, on a completely equal footing and without discrimination or restriction, the protection of the laws and regulations and the advantages of the social measures in forced, in particular in regard to housing, employment and health; to respect the authenticity of their culture and values; and to facilitate their social and occupational advancement, especially through education”.
8. International Labour Organization Recommendation No. 162 concerning Older Workers (1980)
International Labour Organization Recommendation No. 162 concerning Older Workers, adopted at the sixty-sixth session of the ILO Governing Body on 23 June 1980.
Section II, paragraph 5 (g) states:
“Older workers should, without discrimination by reason of their age, enjoy equality of opportunity and treatment with older workers as regards, in particular…(g) access to housing, social services and health institutions, in particular when this access is related to occupational activity or employment”.
9. Declaration on the Right to Development (1986)
Declaration on the Right to Development was adopted by the United Nations General Assembly in resolution 41/128 on 4 December 1986.
Article 8.1 states:
“States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustice”.
10. Global Strategy for Shelter to the Year 2000 (1988)
United Nations Global Strategy for Shelter to the Year 2000, adopted by the United Nations General Assembly in resolution 43/181 on 20 December 1998.
Point 13 states:
“The right to adequate housing is universally recognized by the community of nations…All nations without exception, have some form of obligation in the shelter sector, as exemplified by their creation of ministries or housing agencies, by their allocation of funds to the housing sector, and by their policies, programmes and projects. All citizens of all States, poor as they may be, have a right to expect their Governments to be concerned about their shelter needs, and to accept a fundamental obligation to protect and improve houses and neighbourhoods, rather than damage or destroy them”.
11. Agenda 21 (UNCED, 1992)
Agenda 21, adopted at the United Nations World Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, in June 1992.
Chapters 7.6 states
“Access to safe and healthy shelter is essential to a person’s physical, psychological, social and economic well-being and should be a fundamental part of national and international action. The right to adequate housing as a basic human right is enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Despite this, it is estimated that at the present time, at least one billion people do not have access to safe and healthy shelter and that if appropriate action is not taken, this number will increase dramatically by the end of the century and beyond.”
Chapter 7.9 (b) states
“All countries should adopt and/or strengthen national shelter strategies, with targets based, as appropriate, on the principles and recommendations contained in the Global Strategy for Shelter to the Year 2000. People should be protected by law against unfair eviction from their homes or land”.
Chapter 7.9 (c) states
“All countries should, as appropriate, support the shelter efforts of the urban and the rural poor, the unemployed and the no-income group by adopting and/or adapting existing codes and regulations, to facilitate their access to land, finance and low-cost building materials and by actively promoting the regularization and upgrading of informal settlements and urban slums as an expedient measure and pragmatic solution to the urban shelter deficit”.
Chapter 7.30 (f) states
“All countries should consider developing national land-resource management plans to guide land-resource development and utilization and, to that end, should…establish appropriate forms of land tenure that provide security of tenure for all land users, especially indigenous people, women, local communities, the low-income urban dwellers and the rural poor”.
12. Vienna Declaration and Programme of Action (1993)
Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993.
Paragraph 31 states:
“The World Conference on Human Rights calls upon States to refrain from any unilateral measure not in accordance with international law and the Charter of the United Nations that creates obstacles to trade relations among States and impedes the full realization of the human rights set forth in the Universal Declaration of Human Rights and international human rights instruments, in particular the rights of everyone to a standard of living adequate for their health and well-being, including food and medical care, housing and the necessary social services. The World Conference on Human Rights affirms that food should not be used as a tool for political pressure”.
13. Copenhagen Declaration and Programme of Action (1995)
Copenhagen Declaration and Programme of Action, adopted at the World Summit for Social Development, held in Copenhagen in March 1995.
Paragraph 19 states:
“Poverty has various manifestations, including lack of income and productive resources sufficient to ensure sustainable livelihoods; hunger and malnutrition; ill health; limited or lack of access to education and other basic services; increased morbidity and mortality from illness; homelessness and inadequate housing; unsafe environments; and social discrimination and exclusion”.
14. Beijing Declaration and Platform for Action (1995)
Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, held in Beijing in September 1995.
Paragraph 31 states:
“Many women face particular barriers because of various diverse factors in addition to their gender. Often these diverse factors isolate or marginalize such women. They are, inter alia, denied their human rights, they lack access or are denied access to education and vocational training, employment, housing and economic self-sufficiency and they are excluded from decision-making processes. Such women are often denied the opportunity to contribute to their communities as part of the mainstream”.
15. Istanbul Declaration on Human Settlements (1996)
Istanbul Declaration on Human Settlements, adopted by the Second United Nations Conference on Human Settlements (Habitat II) at Istanbul on 14 June 1996.
Paragraph 8 states:
“We reaffirm our commitment to the full and progressive realization of the right to adequate housing as provided for in international instruments. To that end, we shall seek the active participation of our public, private and non-governmental partners at all levels to ensure legal security of tenure, protection from discrimination and equal access to affordable, adequate housing for all persons and their families”.
Paragraph 15 states:
“This Conference in Istanbul marks a new era of cooperation, an era of a culture of solidarity. As we move into the twenty-first century, we offer a positive vision of sustainable human settlements, a sense of hope for our common future and an exhortation to join a truly worthwhile and engaging challenge, that of building together a world where everyone can live in a safe home with the promise of a decent life of dignity, good health, safety, happiness and hope”.
16. Habitat Agenda (1996)
Habitat Agenda, adopted by the second United Nations Conference on Human Settlements (Habitat II) at Istanbul on 14 June 1996.
Paragraph 3 states:
“As to the first theme, a large segment of the world’s population lacks shelter and sanitation, particularly in developing countries. We recognize that access to safe and healthy shelter and basic services is essential to a person’s physical, psychological, social and economic well-being and should be a fundamental part of our urgent actions for the more than one billion people without decent living conditions. Our objective is to achieve adequate shelter for all, especially the deprived urban and rural poor, through an enabling approach to the development and improvement of shelter that is environmentally sound”.
Paragraph 26 states:
“We reaffirm and are guided by the purposes and principles of the Charter of the United Nations and we reaffirm our commitment to ensuring the full realization of the human rights set out in international instruments and in particular, in this context, the right to adequate housing as set forth in the Universal Declaration of Human Rights and provided for in the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, taking into account that the right to adequate housing, as included in the above-mentioned international instruments, shall be realized progressively. We reaffirm that all human rights – civil, cultural, economic, political and social – are universal, indivisible, interdependent and interrelated. We subscribe to the principles and goals set out below to guide us in our actions”.
Paragraph 27 states:
“Equitable human settlements are those in which all people, 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, have equal access to housing, infrastructure, health services, adequate food and water, education and open spaces. In addition, such human settlements provide equal opportunity for a productive and freely chosen livelihood; equal access to economic resources, including the right to inheritance, the ownership of land and other property, credit, natural resources and appropriate technologies; equal opportunity for personal, spiritual, religious, cultural and social development; equal opportunity for participation in public decision-making; equal rights and obligations with regard to the conservation and use of natural and cultural resources; and equal access to mechanisms to ensure that rights are not violated. The empowerment of women and their full participation on the basis of equality in all spheres of society, whether rural or urban, are fundamental to sustainable human settlements development”.
Paragraph 39 states:
“We reaffirm our commitment to the full and progressive realization of the right to adequate housing, as provided for in international instruments. In this context, we recognize an obligation by Governments to enable people to obtain shelter and to protect and improve dwellings and neighbourhoods. We commit ourselves to the goal of improving living and working conditions on an equitable and sustainable basis, so that everyone will have adequate shelter that is healthy, safe, secure, accessible and affordable and that includes basic services, facilities and amenities, and will enjoy freedom from discrimination in housing and legal security of tenure. We shall implement and promote this objective in a manner fully consistent with human rights standards”.
Paragraph 40 states:
“We further commit ourselves to the objectives of: … (b) Providing legal security of tenure and equal access to land to all people, including women and those living in poverty; and undertaking legislative and administrative reforms to give women full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources and appropriate technologies; …(d) Ensuring transparent, comprehensive and accessible systems in transferring land rights and legal security of tenure; …(j) Eradicating and ensuring legal protection from discrimination in access to shelter and basic services, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; similar protection should be ensured against discrimination on the grounds of disability or age; …(l) Promoting shelter and supporting basic services and facilities for education and health for the homeless, displaced persons, indigenous people, women and children who are survivors of family violence, persons with disabilities, older persons, victims of natural and man-made disasters and people belonging to vulnerable and disadvantaged groups, including temporary shelter and basic services for refugees.”
Paragraph 46 states:
“We commit ourselves to the goal of gender equality in human settlements development. We further commit ourselves to: (a) Integrating gender perspectives in human settlements related legislation, policies, programmes and projects through the application of gender-sensitive analysis.”
17. General comments adopted by the Committee on Economic, Social and Cultural Rights:
General Comment No. 7 (Sixteenth session, 1997): The right to adequate housing (art. 11.1 of the Covenant): forced evictions
In its General Comment No. 4 (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirements of the Covenant.
The international community has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to “undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made”. In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in its resolution 43/181, the “fundamental obligation [of Governments] to protect and improve houses and neighbourhoods, rather than damage or destroy them” was recognized. Agenda 21 stated, “People should be protected by law against unfair eviction from their homes or land”. In the Habitat Agenda, Governments committed themselves to “protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; and when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided.
The Commission on Human Rights has also indicated that ‘forced evictions are a gross violation of human rights.’
It recognized the practice of forced evictions as widespread and as affecting persons in both developed and developing countries. Forced evictions result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions.
Instances of forced eviction occur in the name of development. Evictions may be carried out in connection with conflict over land rights, development and infrastructure projects, such as the construction of dams or other large-scale energy projects, with land acquisition measures associated with urban renewal, housing renovation, city beautification programmes, or the clearing of land for agricultural purposes.
Laying down certain guidelines in respect of forced evictions, the UN in its general comment said:
Whereas some? evictions may be justifiable, such as in the case of persistent non-payment of rent or of damage to rented property without any reasonable cause, it is incumbent upon the relevant authorities to ensure that they are carried out in a manner warranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected.
States? parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders. States parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. In this respect, it is pertinent to recall article 2.3 of the International Covenant on Civil and Political Rights, which requires States parties to ensure “an effective remedy” for persons whose rights have been violated and the obligation upon the “competent authorities (to) enforce such remedies when granted”.
In cases where eviction is considered to be justified, it? should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality. In this regard it is especially pertinent to recall General Comment 16 of the Human Rights Committee, relating to article 17 of the International Covenant on Civil and Political Rights, which states that interference with a person’s home can only take place “in cases envisaged by the law”. The Committee observed that the law “should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances”. The Committee also indicated “relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted”.
Appropriate procedural protection? and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions that directly invoke a large number of the rights recognized in both the International Covenants on Human Rights. The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.
Evictions should not result in individuals? being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.