9 Annexes (1/2)

　Annex 1: Members of the FFM

Mr. Scott Leckie: (Utrecht, Netherlands) Legal advisor to Habitat International Coalition and Co-Director of the Centre on Housing Rights and Evictions.

Mr. Enrique Ortiz: (Mexico City, Mexico) Executive Secretary of Habitat International Coalition with extensive post-earthquake reconstruction experience.

Mr. Aromar Revi: (New Delhi, India) Director of The Research Action Unit (TARU) with extensive experience in post-earthquake reconstruction in India.

Ms. Leilani Farha: (Toronto. Canada) Human rights lawyer with extensive experience in housing rights matters.


　Annex 2: Housing Rights and international Law

This report examines levels of compliance by the Japanese government with the International Covenant on Economic, Social and Cultural Rights (CESCR), which entered into force for Japan on 21 September 1979. While international human rights law widely recognizes various manifestations of housing rights, article 11 (1) of the CESCR (adopted by the United Nations in 1966 and gaining the force of law in 1976) contains perhaps the most significant international legal source of the right to adequate housing:

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. 1

In addition to the Covenant, the human right to adequate housing finds explicit recognition within an array of international instruments. 2 While the provisions of article 11 (1) of the CESCR may superficially appear inconclusive, meaningful legal substance and content can be identified through a thorough analysis of additional provisions of the Covenant, and the jurisprudence and interpretive exercises under taken by the UN Committee on Economic, Social and Cultural Rights toward clarifying the core contents of the right to adequate housing found within the CESCR. The Committee and others have amply recognized that housing rights are infinitely more complex than the still sometimes cited 'right to a roof over one's head'. Housing must be viewed for what it actually is in most parts of the world; a popular process through which people themselves seek out, create options and individually and collectively attempt to solve their housing dilemmas; with limited, but not total involvement by the State. In this regard, housing-associated freedoms, in particular the right to fully participate within the housing process are fundamental.

While the substantive provision of an adequate dwelling/house to persons and families without accommodation may constitute a key aspect of the housing rights dynamic (a right to housing), particularly in emergency contexts such as natural disasters, numerous additional concerns also form the basis of housing rights claims. In this respect, consideration should be given to issues such as the provision of security of tenure (and consequent protection against arbitrary of forced eviction), non-discrimination in the housing sphere, equality of treatment and access vis-a-vis housing, questions of housing affordability landlord-tenant relations of all kinds and others.

Equal attention must be placed in this respect on the different and unique housing requirements of distinct groups within society and the duty incumbent upon governments to ensure adequate access to and provision of housing resources suited to the needs of the disabled, the chronically ill, persons with HIV/AIDS, migrant workers, the elderly and other groups. Ultimately, the human right to adequate housing implies the right to security in a place and comprises an assertion of identity and uniqueness of culture. It is a right embodying equality of access. Housing rights include the right to participate in all aspects of the housing decision, making process, and to order and to influence one's living environment.

There are several points regarding the content of the right to housing which are clear from the wording of article II, while other aspects have emerged progressively as the Committee on Economic, Social and Cultural Rights and other bodies have interpreted and defined this right. As the right to housing is enhanced by the term "adequate" the right is not simply a right to a dwelling per se, but a right of access to a certain standard of housing and surrounding elements. Further, the right to housing is part of the broader right to an adequate standard of living which is defined to include, at the very least, adequate food, clothing and housing.

These norms are by no means intended to be static concerns dealing with the satisfaction of bare minimum needs. Rather "everyone" is also possessed of the right to "a continuous improvement of living conditions".

The Committee has adopted two over-riding principles of interpretation of the right to adequate housing; that it is universal and that it must not be interpreted narrowly. 3

General Comment No.4 on the Right to Adequate Housing, issued by the Committee in 1991, emphasizes that the focus of the right to adequate housing must be on disadvantaged groups, that policies should not favor advantaged sociaI groups at the expense of others and that effective monitoring must involve detailed information about vulnerable and disadvantaged groups, including low income groups.

Moreover the right to housing under international law is qualified by the term 'adequate'. For housing to be deemed 'adequate', General Comment No.4 identifies seven aspects of the right to adequate housing, including: security of tenure, availability of services, materials, facilities and infrastructure, affordability habitability, accessibility, location and cultural adequacy (para. 8).

The General Comment also discusses the relationship between the enjoyment of other human rights and the right to adequate housing. Paragraph 9 declares that "the full enjoyment of other rights - such as the right to freedom of expression, the right to freedom of association (such as for tenants and community-based groups), the right to freedom of residence and the right to participate in public decision-making - is indispensable if the right to adequate housing is to e realized and maintained by all groups in society. Similarly, the right not to be subjected to arbitrary or unlawful interference with one's privacy, family, home or correspondence constitutes a very important dimension in defining the right to adequate housing".

The Covenant also guarantees the right to freedom from any form of discrimination (art.2 (2)), the right to Social security (art.9) and the right to health (art.12) which are also of direct relevance to the housing rights provisions of the CESCR and the overall housing situation in Kobe. Other rights, including the right to freedom of movement, the right to remain, the right to life, the right to information and others are pertinent to the Kobe earthquake situation.

The obligation of governments to prioritize attention to securing the housing rights of the most disadvantaged groups in society is also addressed in General Comment No.4: "States parties must give due priority to those Social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others" (Para.11)

In a provision directly relevant to the situation in Kobe, the Committee has also stated in General Comment No.4 that:

"despite externally caused problems, the obligations under the Covenant continue to apply and more pertinent during times of economic contraction. It would thus appear to the Committee that a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant" (Para.11).

It is clear from the context of the right to housing within the Covenant as a whole that the right does not merely oblige the government to provide housing to those in need but includes many regulatory and legislative obligations on governments to, for example, provide security of tenure, protect against unjustifiable rent increases, prevent demolition of homes and prohibit discrimination. Many components of the right to housing are almost universally justiciable, such as the protection from eviction,
compensation following an illegal eviction, security of tenure rights, landlord and tenant law, harassment, discrimination and rent regulation.

That housing rights responsibilities are now a fundamental component of the State obligations arising under international law is not disputed. Under the general obligations clause of the Covenant found in article 2 (1), States parties are required to take legislative and other steps to the 'maximum of its available resources' with a view to achieving 'progressively' the full realization of the rights recognized in the Covenant, including, the right to adequate housing-Under the same article. States are also required to ensure that no form of racial or other manifestations of discrimination are tolerated to the detriment of the enjoyment of the rights found in the Covenant. 4

As practice has all too often shown, States frequently seek to conceal themselves from international critiques behind the loose terminology utilized in article 2. However, as linguistically imprecise as these terms may be, there now exists a degree of agreement as to the general duties of States under the Covenant, which establish important principles of international law on housing rights. For instance, the Committee has declared that even when 'available resources' are verifiably inadequate, States must nonetheless strive to ensure the widest possible enjoyment of the relevant rights under prevailing circumstances, and demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority these minimum responsibilities. 5

The "progressive realization" clause imposes an obligation on States to move as expeditiously and effectively as possible towards the goal of realizing fully the right to housing, and as an obligation, exists independently of any increase in available resources. Any deliberately retrogressive measures affecting housing or other rights could only be justified by reference to the totality of the rights provided for in the Covenant and in the context of the full utilization of a States maximum available resources. Above all, this clause requires effective and equitable use of combined resources immediately. 6

Concerning the relationship between housing rights and the principle of non-discrimination, the Committee on Economic, Social and Cultural Rights has established that the rights contained in article 2 (2) of the Covenant to exercise the right to housing and other social and economic rights free of discrimination because of "race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status" imposes an immediate obligation on the state to protect citizens from discrimination in access to food, clothing, housing and in all other Social and economic rights.

At another level, under the Covenant all States possess a minimum core obligation to ensure the satisfaction of essential levels of each of the rights found in this decisive legal text. As such, any State in which any significant number of individuals is deprived basic shelter and housing is, prima facie failing to perform its obligations under the Covenant. 7

The obligation to respect housing rights requires the state, and thereby all of its organs and agents to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family household or community housing needs. In this context, governments should desist from restricting the right to popular participation and must accept the corresponding commitment to facilitate and create economic, Social and political conditions conducive to self-help initiatives by the beneficiaries of housing rights, as well as rights to freely organize and assemble, which are essential for the assertion of dwellers or tenants groups.

Of particular importance, the responsibility to respect housing rights requires states to refrain from carrying out, advocating or condoning the practice of forced or arbitrary evictions of any persons or groups from their homes. States must also respect people's rights to build their own dwellings and order their living environments in a manner which most effectively suits their culture, skills, needs and wishes. Scrupulously honoring the right to equality of treatment, principles of non-discrimination, the right to privacy of the home and other relevant rights form constituent aspects of the duty to respect. 8

While the duty to respect essentially implies a series of limits of State action, the obligation to promote compels governments to recognize the multifaceted human rights dimensions of housing and to take steps to ensure that no measures are taken with the intention of deliberately eroding the legal and practical status of this right. Moreover comprehensive legislative review should take place, with any existing legislation or policies negatively affecting the exercise of the right to housing subject to repeal or alteration.

The promotion function additionally requires States to place sufficient legal and policy emphasis on the full realization of housing rights, through a series of active measures including national and/or local legislative recognition of the right, the incorporation of housing rights imperatives into housing and related policies, and the identification of discernable 'bench marks' towards the full enjoyment of housing rights by all sectors of society. 9

The Committee has emphasized that "policies and legislation should not be designed to benefit already advantaged social groups at the expense of others". 10 Further refinement of the policy aims required with the recognition of housing rights demand that governments adopt national housing strategies defining the objectives for the development of the housing sector, identifying the resources available to meet these goals. the most cost-effective way of using them and setting out the responsibilities and time-frame for the implementation of the necessary measures. For both reasons of relevance and effectiveness, as well as in order to ensure respect for other human rights, such a strategy should reflect extensive genuine consultation with, and participation by, all those affected. including the homeless, the inadequately housed and their representatives. Subsequent steps must be taken by governments to ensure co-ordination between ministries, regional and local authorities in order to reconcile related policies with the obligations arising from the Covenant.

Accurately assessing the degree to which the right to housing remains unsatisfied or denied exists as a further element of the State obligation to promote the norm. An identifiable effort must be made to monitor and identify where and to what extent the right is not in place, and consequently to target housing policies and legal measures towards attaining the right for everyone in the shortest possible time. 11

The obligation to protect the right to housing obliges the state and its agents to prevent the violation of any individual's rights to housing by any other individual or non-State actor. Housing rights beneficiaries must, therefore, be protected from abuse by landlords, property developers, land owners or any other third party capable of abusing these rights.

Where such infringements do occur public authorities should act to preclude further deprivations as well as guaranteeing access to legal remedies for any infringement caused. Effective measures protecting persons from forced evictions, racial or other forms of discrimination, harassment, withdrawal of services or other threats must also be established. l2

The obligation to fulfill the right to adequate housing is the most interventionary in nature, involving issues of public expenditure, governmental regulation of the economy and land market, housing subsidies, monitoring rent levels and other housing costs, the provision of public housing-basic services and related infrastructure and taxation and subsequent redistributive measures. On the issue of housing finance and budgetary allocations, States must establish forms and levels of expenditure adequately reflecting society's unmet housing needs, and which are consistent with the commitments arising from the Covenant and other legal sources enshrining housing rights. Primarily the duty of fulfillment comprises those active measures by government necessary for guaranteeing for each person under its jurisdiction opportunities to access the entitlements of housing rights which cannot be obtained or secured through exclusively personal efforts. 13

Finally, under the Covenant, the international community possesses certain identifiable obligations under internationaI law regarding the enforcement of housing rights norms, including: a) refraining from any coercive measures designed to force a State to abrogate or infringe its housing rights obligations; b) providing financial or other assistance to States affected by natural or manmade disasters, resulting in, inter alia, the destruction of homes and settlements; c) ensuring the provision of shelter and/or housing to refugees fleeing persecution, civil strife, armed conflict, droughts or famine; and d) responding to abject violations of housing rights carried out in any State.

As far as the international monitoring of the Covenant is concerned, the UN Committee on Economic, Social and Cultural Rights has identified several States parties to the CESCR which have violated the housing rights provisions of article 11 (1), which gives an indication of both the seriousness with which the Committee views this right, as well as existence of sufficient precise norms in the Covenant to enable the Committee to make such pronouncements. The Committee has specifically critically addressed housing rights issues in States parties relating to: (a) the rights of tenants; (b) the universal provision of security of tenure; (c) homelessness; (d) the need to construct low-income housing; (e) the lack of domestic remedies for housing rights violations; (f) land regularization; (g) the prevalence of inadequate living conditions and service availability; (h) the need to establish a national housing commission; (i) protection from discrimination within the housing sphere; and (j) expropriation for social housing purposes.

Further indications of the stature of housing rights under international law include the work of the United Nations Special Rapporteur on Housing Rights who presented his final report to the UN in August 1995 (UN doc. E/CN.4/Sub.2/1995/12) and the publication of a 'Housing Rights Strategy' by the UN Centre on Human Settlements in April 1995. Moreover, the UN will convene the World Summit on Human Settlements in June 1996, where housing rights will likely dominate the agenda and discussions.

Housing Rights Violations

The Committee's General Comment No.4 stipulates two clear circumstances amounting to violations of the housing rights provisions of the Covenant, namely:

Para.11: [A] general decline in living and housing conditions. directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations found in the Covenant.

Para.18: [T]he Committee considers that instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.

Similarly the Special Rapporteur on Housing Rights has devoted substantial attention to the issue of acts and omissions by States amounting to violations of the right to housing in his three reports as well. Acts of racial or other forms of discrimination in the housing sphere, demolition or destruction of housing as a form of punishment, failing to perform or repeal legislation inconsistent with the contents of housing rights and a range of additional actions have been declared in principle, to constitute further violations of the right to adequate housing. 14

In addition to outlining earlier proclamations as to what would constitute housing rights violations, the Special Rapporteur also outlined a lengthy series of both acts and omissions which could provoke concern regarding possible infringements of the right to adequate housing. These merit a full reiteration. Acts which could be considered to constitute housing rights violations include, but are not limited to:

1 Carrying out, sponsoring, tolerating or supporting the practice of forced evictions;

2 Demolishing or destroying homes or dwellings as a punitive measure;

3 Actively denying basic services such as water, heating or electricity, to sectors of society, despite a proven ability to provide these;

4 Acts of racial or other forms of discrimination in the housing sphere;

5 Adoption of legislation or policies clearly inconsistent with housing rights obligations, particularly when these result in homelessness, greater levels of inadequate housing, the inability of persons to pay for housing and so forth;

6 Repealing legislation consistent with, and in support of, housing rights, unless obviously oudated or replaced with equally or more consistent laws;

7 Unreasonable reductions in public expenditures on housing and other related areas, in the absence of adequate compensatory measures;

8 Overtly prioritizing the housing interests of high-income groups when significant portions of society live without their housing rights having been achieved;

9 Constructing or allowing the building of housing upon unsafe or polluted sites threatening the lives and health of future occupants; and

10 Harassing, intimidating or preventing non-governmentaI and community-based organizations and grassroots movements and groups concerned with housing rights from operating freely. 15

Conversely, according to the Special Rapporteur on Housing Rights, a series of failures to act (omissions) could also constitute violations of housing rights obligations. These include:

1 Failing to take "appropriate steps" as required under the Covenant on Economic, Social and Cultural Rights;

2 Failing to reform or repeal legislation inconsistent with the Covenant;

3 Failing to enforce legislation inherent in the fulfillment and recognition of housing rights;

4 Failing to intervene in the housing market, especially concerning rent levels, rent control, rent subsidies, issues of security of tenure and prevention of undue speculation;

5 Failing to incorporate and implement accepted international minimum standards of achievement concerning housing rights;

6 Failing to provide infrastructure, basic services (water, electricity, drainage, sewage, etc) ;

7 Failing to prohibit or prevent individual or civil actions amounting to housing rights violations by any person capable of committing such acts;

8 Failing to utilize all available resources for the fulfillment of this right;

9 Failing to integrate and full consider the implications for housing rights when developing macro-economic policies impacting upon the housing or related social spheres; and

10 Failing to submit reports as required under articles 16 and 17 of the Covenant on Economic, Social and Cultural Rights, as well as under other treaties. 16


(To be continued)