|
|
|
|
|
Q. How are human rights arguments applicable to the problem of criminalization of homelessness?
|
| A. Human rights arguments serve a number of functions in legal efforts undertaken against homelessness criminalization efforts. They support arguments rooted in domestic law, providing guidance for interpretation and application to courts and lawmakers. They reinforce government obligations not to engage in actions that would defeat the spirit and the letter of treaties signed by the United States. They educate the judiciary about human rights for current and future use in deciding cases, and they may lead to helpful precedent for future litigation. |
Q. What sources of human rights arguments are available for use against statutes or ordinances criminalizing homelessness?
|
| A. Sources include (1) international customary law, such as the Universal Declaration of Human Rights; (2) United Nations human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); (3) non-binding United Nations declarations, including the Code of Conduct for Law Enforcement Officials; and (4) international case law. |
Q. Is the racially disparate impact of criminalization, even if not intentional, a legal violation of equal protection under international law?
|
A. Yes. Under international law, racial discrimination is defined to include both policies with racially disparate effects and those that are intentionally discriminatory. While collecting demographic information on unsheltered homeless populations is difficult, data on the sheltered homeless reveal that African Americans, Latinos, and Native Americans are disproportionately represented. Because homeless persons are disproportionately racial minorities, these criminalization measures have a racially disparate impact in violation of Articles 1, 2 and 5 of the International Convention on the Elimination of Racial Discrimination, and Articles 2 and 26 of the International Covenant on Civil & Political Rights. In 2006, the Human Rights Committee (HRC) recognized the severity of this problem, and issued a concluding observation on the U.S. stating:
The Committee is concerned by reports that some 50 % of homeless people are African American although they constitute only 12 % of the U.S. population. (articles 2 and 26) The State party should take measures, including adequate and adequately implemented policies, to ensure the cessation of this form of de facto and historically generated racial discrimination.
Under the U.S. Constitution, treaties are supreme law of the land, and domestic laws should be interpreted accordingly. The practice of criminalizing the behavior of homeless and minority persons is counter to the recommendations made by both the HRC and the Committee on the Elimination of Racial Discrimination (CERD), which indicated in its 2001 concluding observations on the U.S. that the Government has "obligations under the Convention and, in particular, to article 1, paragraph 1, and general recommendation XIV, to undertake to prohibit and to eliminate racial discrimination in all its forms, including practices ... that may not be discriminatory in purpose, but in effect. All appropriate measures should be taken to review existing legislation and federal, state and local policies to ensure effective protection against any form of racial discrimination and any unjustifiably disparate impact." The U.S. Department of Justice should take immediate steps to inform state and local officials that disproportionate enforcement of laws against minority homeless persons violates our obligations under the Convention, and that rather than criminalizing homelessness, government at all levels should instead take positive steps to fulfill the right to housing.
|
Q. Have other countries used human rights arguments to protect the homeless against criminalization statutes and ordinances?
|
A. Yes. The Committee Against Torture held in /Hajrizi Dzemajl et al. v. Serbia and Montenegro/ that the State violated Article 16 of the Convention Against Torture when police acquiesced in the forced eviction of Roma residents from the town of Danilovgrad. The Committee found the burning and destruction of the Roma settlement to constitute acts of cruel, inhuman or degrading treatment.
The South Africa Constitutional Court has also decided several cases regarding the eviction of homeless people from public and private people in the context of the constitutional right to housing. A series of cases held that the homeless could not be evicted from private spaces unless the eviction is just and equitable and until alternative public spaces are provided by the state. Further, before being evicted from public spaces, homeless people must be meaningfully engaged. |
|
|
|
|
|
|
|
|
|
This page
Other pages
Account
Administration
Discussion
