Statement by Raquel Rolnik
SPECIAL RAPPORTEUR ON ADEQUATE HOUSING AS A COMPONENT OF THE RIGHT TO AN ADEQUATE STANDARD OF LIVING, AND ON THE RIGHT TO NON-DISCRIMINATION IN THIS CONTEXT
25th session of the Human Rights Council
10 March 2014, Geneva
Mr. President,
Distinguished delegates, ladies and gentlemen,
I am honoured to address the Human Rights Council in my capacity as Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context.
In this occasion, I am very pleased to present my final thematic report, with practical guidance for states and other stakeholders on security of tenure for the urban poor. I also present my reports on the official visits carried out in 2013, to Indonesia and to the United Kingdom of Great Britain and Northern Ireland.
1. Thematic report: Guiding Principles on Security of tenure for the urban poor
A year ago, in this room, I underscored the importance of security of tenure. I called it the cornerstone of the right to adequate housing, and noted that its absence is one of the most acute vulnerabilities faced by the urban poor around the world. Often, I said, tenure insecurity leads to a range of human rights violations, affecting not only the right to adequate housing but several other related rights, like education, freedom of assembly, health or social security.
My work of the past year has reinforced my conviction. Globally, tenure insecurity is responsible for many millions of people living under a daily threat of eviction, lack of access to services, or in an ambiguous situation where their tenure status becomes the basis for discrimination, or is used in their detriment by public and private actors.
The crisis manifests itself in many forms and contexts, and disproportionately impacts on the urban poor. Forced evictions may be its most visible sign. However, displacement resulting from development, gentrification, mega-events, natural disasters, among others, is persistent and on rise. I receive communications on such situations daily, affecting hundreds of people.
No one is fully protected from tenure insecurity. As the recent mortgage and financial crises showed, even those families that trusted freehold was a safer option, were impacted by foreclosures, and, as a result, are now facing homelessness.
It is evident that the poorest bear the brunt of tenure insecurity. This is often the case in self-made, unplanned and subserviced urban settlements, including for tenants within these settlements. But it is equally the case for unprotected tenants elsewhere, and for people facing foreclosures with no affordable housing alternatives in their horizon. Among them, some marginalized groups such as refugees, internally displaced persons, migrants, minorities, and women are often faced with cumulative discrimination.
Hence, in my view, any legislation, policy and practice on security of tenure must acknowledge that individuals and communities occupying land or property to fulfil their right to adequate housing, and who have no other adequate option, have legitimate tenure rights that should be secured and protected. The concept of legitimate tenure rights extends beyond mainstream notions of private ownership and includes multiple tenure forms deriving from a variety of tenure systems.
Mr. President, distinguished delegates,
The good news is that a lot has been done around the world to increase security of tenure for the urban poor. There are concrete policies and practices addressing security of tenure and they offer an array of examples and lessons to enhance housing and urban development policies in the years to come.
During the last two years, I have analyzed many of those practices from various countries. Working closely with more than a hundred housing public policy and human rights experts, I have developed a set of ten short Guiding Principles, which aims at distilling the essential contents of legislation, policies and practices to be applied in different contexts and situations. I take this opportunity to thank your Governments for all contributions to this process, via questionnaires or the participation of officials in some consultations.
In line with my mandate, as outlined in the Council’s resolution 15/8, paragraph 2 (c) and (e), I have given emphasis to practical solutions with regard to the implementation of the right to adequate housing, while at the same time paying special attention to the needs of persons in vulnerable situations, like those living in poverty.
The Guiding Principles on security of tenure for the urban poor are not an academic exercise divorced from the constraints of public policy design and implementation, or the specificities of diverse societies and housing systems. Nor are they intended as a recipe to be followed everywhere from one to ten. Rather, the Guiding Principles are meant as a toolbox to be applied according to specific country context: some principles may be more effective or necessary in one situation, while others may be central in another.
Mr President, distinguished delegates,
These principles define security of tenure as a set of relationships with respect to housing and land, established through statutory or customary law or informal or hybrid arrangements, that enables one to live in one’s home in security, peace and dignity. It is an integral part of the right to adequate housing and a necessary ingredient for the enjoyment of many other civil, cultural, economic, political and social rights.
As the Committee on Economic, Social and Cultural Rights in reference to article 11 of the Covenant, has insisted for over twenty years, all persons should possess a degree of security of tenure that guarantees legal protection against forced eviction, harassment and other threats.
Why a focus on the urban poor?
Mr President,
The rapid pace of urbanization around the world is unquestionable. There is no turning back to the rural past of humanity. Already in 2007, more than half of the world population lived in cities, a figure that is expected to rise to 60 per cent by 2030, and fifteen years from now.
The plight of the urban poor is pressing, not the least because millions of people are moving into urban and peri-urban settlements as we speak. Frequently these settlements fall short of the human rights standards of adequate housing, starting with tenure insecurity. Many other millions of urban poor are also living in unaffordable, substandard housing, or are threatened by eviction from their life-long homes because of urban renewal plans or because they cannot afford to compete with international real estate investors.
The ten Guiding Principles
Let me briefly outline the ten guiding principles for your consideration:
The first principle set the foundation of this approach: Strengthening diverse tenure forms. A variety of tenure forms should be promoted, strengthened and protected, including those deriving from statutory, customary, religious and hybrid tenure systems. All relevant laws, policies and programmes should be developed on the basis of human rights impact assessments, which identify and prioritize the tenure arrangements of the most marginalized. Despite the prevalence of a variety of tenure arrangements worldwide, in the past few decades, most models of urban planning, land management, development and legal regimes have been centered around one particular form: individual freehold, as a “one size fits all solution”. This common fixation further excludes the most marginalized individuals.
In my view, principles two and three are closely linked with the need to address existing realities and enhance them, in consonance with the need for progressive steps towards the full realization of the rights. Principle two refers to improving security of tenure by putting in place essential measures, especially for vulnerable and marginalized persons and groups living in urban poor settlements. These can include a number of public policy actions involving various parts of the governments, from identifying insecure settlements and population groups, including the homeless; or facilitating participatory settlement mapping, enumerations and tenure registration; to allocating sufficient funds to ministries, and local governments for their implementation, to name a few examples.
Principle three, prioritizing in situ solutions, emphasizes that unless there are exceptional circumstances justifying eviction, and that those circumstances are consistent with the strict standards established under international human rights law, in situ solutions must prevail. There are legitimate circumstances in which resettlement may be appropriate to protect the health and safety of inhabitants exposed to natural disasters or environmental hazards, or to preserve critical environmental resources. However, the misuse of regulations aimed at protecting public health and safety or the environment to justify eviction of poor households in the absence of genuine risk is contrary to international human rights law.
But we must also anticipate future realities and prevent further deterioration of housing conditions. Principle four underlines that property has a vital social function in designing and implementing housing and other relevant policies. The inability of the poor to access secure and well located urban housing is often a consequence of policies that promote the commodification of land and housing to the detriment of their social function. We need to promote access to secure, affordable and well-located housing for the urban poor through measures such as: citywide audits of vacant and underutilized land, housing and buildings; allocation of available public land for the provision of low-income housing or regulation and stimulation of low-income rental market and collective forms of tenure.
The following two principles, five and six, shed light on a core principle of human rights, central to my mandate as Rapporteur, non-discrimination in relation to the right to adequate housing. Discrimination on the basis of tenure, in law or practice, occurs all too often. It happens when a person tries to access basic services, like water or electricity, when entire communities are not included in official data collection, including census, and hence public policies are not responsive to their presence and needs; or in the face of police procedures, including excessive use of force. It has been brought to my attention repeatedly that displaced people due to disasters or conflict may at times be discriminated in accessing humanitarian assistance, including shelter, due to their pre-conflict or pre-disaster tenure status. Intimately related, is principle six, on the situation of women, whose security of tenure should be protected regardless of age, marital, civil or social status, and independent of their relationships with male household or community members.
Tenure security of the urban poor is affected by the activities of a diverse range of actors, not only States. I have addressed the responsibilities of business enterprises as well as those of multilateral and bilateral development agencies in principles seven and eight. While States must protect all individuals against violations of human rights, business actors (for example, construction companies, real-estate agencies, landlords, mega-event organizers and banks, among others) also have human rights responsibilities. The principles call these actors to ensure that their activities do not cause adverse impacts on security of tenure; that if any adverse impacts have been caused by their activities, there are accountability mechanisms, effective responses and access to remedies; and that they adopt appropriate safeguards.
Global experience shows that the realization of the right to adequate housing depends as much upon the mobilization and advocacy of social movements as the efforts of States. Hence, principle nine: Empowering the urban poor and holding States accountable, puts the urban poor at the center of this approach. The poor are essential actors rather than mere recipients in strengthening tenure security efforts. Empowering them is a matter of human rights implementation and also of genuine governance. Access to information, full participation, transparency in decision-making, freedom of association, are by nature a progressive process that warrants accountability. In other words, States must demonstrate that they are taking deliberate, concrete and targeted steps as expeditiously and effectively as possible, including through a plan of action for strengthening multiple tenure forms.
Last but not least, principle ten stresses a core human rights principle: there is no real protection without ensuring that the poor can access justice. States should take all measures to remove barriers to accessing effective remedies through a range of judicial and administrative mechanisms. States should also ensure there are alternatives to the courts, like land dispute and grievance mechanisms that are inexpensive, accessible, socially legitimate and rule-bound.
Concluding remarks on security of tenure
Mr. President, ladies and gentlemen,
Security of tenure guarantees that people access and enjoy their home without fear of forced evictions. It enables them to improve their housing and living conditions. It provides a foundation for the enjoyment of the right to adequate housing and other human rights.
Multiple tenure arrangements can and must be protected and promoted. States have an obligation to ensure that all persons possess a degree of security of tenure that guarantees legal protection against all threats. They also have an obligation to take progressive measures to strengthen security of tenure for all persons currently using land or housing for their basic housing needs, and who lack such security.
I am confident that these principles will assist States and other actors in opening a pathway to a dignified tenure situation for the urban poor.
2. Mission to Indonesia
At the invitation of the Government, I undertook an official visit to Indonesia from 31 May to 11 June 2013. I visited Jakarta, Makassar, Surabaya and Yogyakarta, and met with representatives of national and local Governments, non-governmental organizations and communities in urban and rural areas. I am thankful for their valuable cooperation before, during and after the mission.
Indonesia is the world’s third most populous country with the fastest rate of growth of urban population in Asia. In parallel, in the last decade, it has enjoyed steady economic growth and poverty decline. Still, about 28.6 million people or more than 10 per cent of all households live below the poverty line. Urbanization is taking place at an accelerated pace, with projections of 70 per cent of the population living in urban centres by 2030. The urban poor are concentrated in densely populated Java, accounting for over two thirds of the country’s low-income population.
In this context, the coming years offer a window of opportunity to proactively ensure that rapid urbanization goes hand in hand with inclusive growth and poverty reduction. Legislation, policies and programmes should encourage efficient urban spatial structures for all, sustainable planning of land use, investments in critical infrastructure, strengthened tenure security and the provision of basic services. Enhancing the housing and living conditions in kampungs must be at the heart of public policy without delay.
I recommend the Government of Indonesia to bring its national and municipal legislation and regulations regarding forced evictions, land acquisition and land concessions in line with international human rights law and standards. A key policy instrument for this purpose could be a National Housing Strategy based on updated and disaggregated data on the current housing situation and needs. Such a strategy can be essential to clarify the responsibility of and coordination between various Government institutions and other stakeholders.
In terms of land management and administration, I recommend enhanced protection for low-income households, indigenous communities and communities occupying land based on customary (adat) law. For this purpose, urban spatial plans and land use regulations should ensure an inclusionary and diversified urban environment. I recommend formally recognizing the kampong for what it has been: an essential part of Indonesian urban fabric
Indonesia has suffered several devastating natural disasters. Reconstruction poses an enormous challenge in human, technical and budgetary terms. In this context, I welcome the design and implementation of the Rekompak Programme, which can serve as an example to other parts of the world. In my view, it is responsive, cost-effective, community-driven, and appears to provide durable and sustainable solutions. The rehabilitation alternatives are tailored with the participation of the communities, in accordance wits regional characteristics and culture. Even with some difficulties in implementation, it appears to offer needed flexibility to the complexities of the situation.
In closing, I would like to note that the promotion of equality and non-discrimination in access to housing continues to require swift and well-defined action from the Government at all levels. Laws, policies and practices that perpetuate discrimination in access to adequate housing of marginalized groups (such as women, LGBT people, internal migrants and religious minorities) should be reviewed and repealed.
3. Mission to the United Kingdom of Great Britain and Northern Ireland
At the invitation of the central Government, I undertook on official visit to the United Kingdom of Great Britain and Northern Ireland from 29 August to 11 September 2013. I am grateful to the central Government and the devolved administrations in England, Northern Ireland, Scotland and Wales for the cooperation and hospitality extended. I visited London, Edinburgh, Glasgow, Belfast and Manchester, and in all places I met with officials, representatives of the national human rights institutions, civil society organizations, and housing and human rights experts. I thank all, especially all the individuals for the testimonies heard during the visit and for the high level of contributions and letters received in preparing the report that I am presenting today.
I recognize the complexity of the central and devolved administrations in relation to housing: various housing and planning functions are devolved, while there are also central legislative powers, such as those related to welfare and budgetary decisions. The report noted these differences and specificities.
I commend the United Kingdom for its history of ensuring that low- and middle-income households have access to adequate housing and have been protected from insecure tenure forms or poor housing standards. More than in any other of my official visits, I found that people in the United Kingdom clearly understood what the right to housing means and why affordability, good location and accessibility are so critical to a life in dignity.
This notion took hold thanks to a combination of housing, land and planning policies designed to provide adequate housing and to address backlogs or poor quality of existing housing stock; plus a welfare system that included housing benefits.
In line with binding international human rights standards, the United Kingdom is required to examine its legislation and policies overtime, including in times of austerity, and to take every step to ensure that available resources are distributed fairly, consistently and in a manner that protects the most vulnerable. In my report, I regret that some policies and practices, which had previously contributed to the progressive realization of the right to adequate housing, are being eroded in recent years I note with concern that the structural shape of the housing sector has changed to the detriment of the most vulnerable, and is rendering specific population groups more fragile. Among them, I underscore the situation of low-income people, the homeless, persons with disabilities and young people.
In my view, it is essential to assess and evaluate the impact the welfare reform has had on the right to adequate housing of these and other individuals and groups. In light of existing data and evidence, the Government should consider whether particular measures are having a disproportionate impact on specific groups; assess whether the overall costs of the implementation of some reforms might outweigh the savings intended, thereby violating the State’s obligation to use the maximum of available resources; and consider alternative avenues to achieve similar objectives without affecting the poorest or most vulnerable. In this context, I recommend the suspension of the removal of the spare-room subsidy and a careful evaluation of its negative impacts on the right to adequate housing and general well-being of many vulnerable individuals and households.
As I have noted in my report, the United Kingdom faces a critical situation in terms of availability, but also in terms of affordability of housing. There is no doubt in my mind that the Government has made efforts and devoted resources to address the overall gap between the housing needs and the actual supply of new houses, especially in some cities. Despite the many figures provided, I remain concerned that the new completions are indeed targeting the low-income sector of society, and whether the policy priority is placed on the most marginalized.
Consequently, I suggest expanding grants and subsidies to local councils and housing associations, or ensuring that they benefit from the ongoing plans to release public land, above other housing sector players, as these have been essential in responding to the housing need of the most vulnerable. I suggested the inclusion in planning and land management systems of strict conditions for immediate development of land with planning permits and “build-or-lose” safeguards, and I welcome the Government’s response acknowledging this is important feature in the planning system, and recognizing this is the right time to reinstate it.
More regulation is needed as well as enhanced information and accountability in relation to the private rented sector, which continues to grow and is now the most common form of tenure for the young, such as the adoption of regulatory tenancy protections.
I recognize the efforts that have been undertaken by the central Government to create better conditions for adequate provision of sites for the Gypsy and Traveller communities. I also take note of the localist approach to the issue. However, the obligations of the State under international human rights law remain whether carried out by the central Government or local authorities. Hence, I call for stronger and targeted efforts to address stigma and discrimination for the Gypsy and Traveller communities in relation to the wider spectrum of rights, starting with the recognition that cultural adequacy in housing is a pillar for inclusion.
Finally, in my view, housing remains a central issue in Northern Ireland. I recommend sustained efforts to address challenges to overcome persistent inequalities in housing in North Belfast. For this purpose, active, free and meaningful participation of all in decisions made about housing should be promoted, including in relation to the collection of official data, which should be disaggregated, open and accessible to all.
4. Concluding remarks
Mr President, distinguished delegates,
This is my last intervention before the Human Rights Council and I wish to thank you for the privilege you granted me with my appointment as Special Rapporteur on the right to adequate housing. I am grateful for welcoming me in your countries for official or working visits; for the many opportunities to discuss right to housing issues, whether during sessions, side-events or in bilateral meetings; and for your contributions to my questionnaires. And I want to express my gratitude in particular to Germany and Finland, who have co-sponsored this mandate and supported my work throughout the years.
I am most grateful to have had the opportunity of exercising the mandate of Rapporteur with independence and impartiality.
I came to this job with years of practice in planning and housing policies, and in academia. But, as Rapporteur, I have been confronted every day, during the past six years, with the views of the vulnerable, with the voices of the voiceless. And, in turn, I have been faced with the immense challenge of finding channels of communication between them and the decision makers in order to ensure that their voices were heard and taken into account. Modestly, I have tried to build those bridges by echoing the voices of those whose housing rights were under threat, while trying to come up with recommendations for feasible and realistic policy responses. I am most thankful to all the individuals and communities, to all civil society organisations and housing experts that have supported this work. Even though all the reports and documents produced are my own responsibility, it must be said that they are the result of collective efforts.
I would like to end my remarks by pointing out that the housing crisis that we are currently experiencing in the world is an opportunity to reassess existing and hegemonic paradigms around housing. It is a chance to seek and apply human rights-based responses in the housing and land domains. We are already facing the impacts of climate change, of unplanned urbanization, of the unharnessed power of real estate financial complex, among other accelerating phenomena. These, combined with population growth and the reality of human mobility, cannot be addressed if we refuse to acknowledge that every single individual and community must have a place to live; that this place must be safe, secure and dignified; that each and every woman, man and child must have a home from which to reach out and enjoy the economic, technological and cultural opportunities we have all created in our world.
Many issues related to the right to adequate housing remain daunting and acute. They continue to require a robust and independent human rights mechanism to monitor them, and to assist you in finding responses. I call on you to renew your support to this essential mandate and to cooperate with my successor in these endeavours.
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