Testimony of Tara Melish
Human Rights Attorney and Counsel to the Poor Peoples' Economic Human Rights Campaign
Situation of the Right to Adequate Housing in the Americas:
General Hearing before the
Inter-American Commission on Human Rights
4 March 2005, 4:15-5:15, Salón Colón

The Right to Adequate Housing in the Inter-American Human Rights System: Legal Framework

Introduction:

The human right to adequate housing is indispensable to the inherent dignity and equal worth of every human being. As such, it is firmly protected in international human rights law---both at the universal and regional levels. At the universal level, it finds express protection in the each of the instruments of the International Bill of Right: the Universal Declaration, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR).[1] It also finds protection in each of the universal instruments aimed at ensuring the effective enjoyment of all human rights to members of particularly vulnerable groups: CEDAW, CERD, CRC, and the Migrant Workers Convention.[2]

A distinction is often made - although increasingly rejected as false in international law - between so-called "civil and political rights" and "economic, social and cultural rights," with the right to housing being placed in the latter category. The right to adequate housing is, however, one of the best examples of why any distinction between categories of rights is false and arbitrary: It's varied and diverse dimensions include an expansive gamut of civil, political, economic, social and cultural rights - the right to the inviolability of the home, to private life and family, to association, to property, to personal security, to integrity of the person, freedom from inhumane treatment, non-discrimination, movement and residence, due process, judicial protection as well as other intimately related rights such as those to health, food, proper sanitation, culture, etc.[3]

This inextricable interrelation between rights, along with the fundamental nature of the right to adequate housing, has led other regional systems which, unlike the inter-American system, do not expressly guarantee the right to housing in their regional instruments to protect the right to housing through the use of other expressly recognized guarantees. The European human rights system has done so relying on the European Convention on Human Rights' protection against inhuman and degrading treatment (art. 3),[4] right to privacy (art. 8.1),[5] and general limitations on the right to property for the general welfare.[6]

The African system has done so by finding the right to adequate housing indirectly protected in the African Charter on Human and Peoples' Rights. It has read it into the Charter's express guarantees on the rights to property (art. 14), the right to enjoy the best attainable state of mental and physical health (art. 16), and the rights of the family (art. 18).[7] The African Commission has thus found the right to adequate housing to be a fundamental right guaranteed in the African Charter.

The point to emphasize is that all other regional systems have directly addressed regional housing rights abuses under their contentious jurisdictions, even when that right is not textually recognized as such in the human rights instruments that delimit their competence. In this regard, the inter-American system lags behind its regional counterparts: it has not yet decided a housing rights case -despite several being presented to its contentious jurisdiction - even though the right to adequate housing is concretely protected in both the American Declaration and American Convention on Human Rights.

Though little attention has been directed to this expressly recognized right to date, we offer this hearing with a view to encouraging the Commission to squarely address the right to housing in its human rights work---under both its promotional and contentious jurisdictions. In this way, it will join the other regional systems in protecting the full range of human rights, as well as give full meaning to the American Declaration and Convention on Human Rights.

My presentation will focus on three issues: (1) the provisions through which the right to adequate housing is protected in the regional legal framework; (2) the state obligations that attach to this protected right and its component elements; and (3) criteria for monitoring or determining violations of those obligations.

I.     Legal Guarantees on the Right to Adequate Housing in the Inter-American System

The right to adequate housing is concretely protected in both the American Declaration on the Rights and Duties of Man ("Declaration") and the American Convention on Human Rights ("Convention"). As the Commission has made clear on numerous occasions, and as described in the Commission's Statute, one or both of these instruments bind all Member States of the OAS.[8] The Declaration is legally binding upon the United States and Canada through their membership in the OAS and ratification of the OAS Charter. The Convention is legally binding on Brazil through its ratification of said treaty in 1992.

Importantly, both instruments protect the right to adequate housing as an independent right, while also protecting each of the component elements or dimensions of this fundamental right, which are guaranteed in distinct articles. While the right to adequate housing, as a broad right, encompasses the latter as they apply to housing, the component rights are essential guarantees in-and-of-themselves; they should not be lost or minimized in promoting the right to adequate housing as a whole. Indeed, both spheres of protection should be used by the Commission in providing concrete protection - both substantive and procedural - to the right to adequate housing in the inter-American system. Both are described separately below:

A.     Right to Adequate Housing as an Independent Legally Protected Right

The right to adequate housing is concretely protected, as an independent right, in both the American Declaration and American Convention. The Commission therefore has jurisdiction to monitor and adjudicate violations of this right in every State of the Americas.

                        1.  American Declaration on the Rights and Duties of Man (arts. IX and XI)

With respect to the American Declaration, the right to adequate housing is guaranteed directly in two articles: articles IX and XI. Article IX guarantees the right of every person to the inviolability of his or her home. That means no one may arbitrarily or unlawfully interfere with the enjoyment or possession of one's housing entitlements. Where the State authorizes, or fails to reasonably prevent, acts by public or private agents that interfere with a person's right to the inviolability of their home, a violation of the Declaration is imputable to that State on the international plane. Examples of such breach would include unlawful forced evictions, housing demolitions accomplished without due process of law, arbitrary rent hikes, and severe environmental contamination of residential areas, among others.

Article XI of the Declaration goes beyond the inviolability of the home, to guarantee the right to adequate housing per se, which includes both the negative protection against arbitrary interference with the home as well as the positive guarantee to take all measures necessary to ensure the right to adequate housing to persons within the State's jurisdiction. In this regard, it is important to note that article 11 of the Declaration is structured almost identically to article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). That is, the right to housing is expressly guaranteed in both as an essential aspect of the broader right to an adequate standard of living or the preservation of health. This is in recognition of the inextricable interrelation between housing, health, food and clothing as essential elements of human dignity, security, and integrity[9].

-          Article XI (Declaration). Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.

-          Art. 11 (ICESCR). 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.

This conceptual and structural similarity is important. This is particularly so because the UN Committee on ESCR, charged with monitoring State Party compliance with the ICESCR, has done significant work explaining the normative content of the right to adequate housing. Indeed, beyond its final observations on State Party reports to the treaty body, which have often taken up failures with regard to the right to housing (some of which will be mentioned in this hearing), the ESCR Committee has prepared two general comments on the right to adequate housing - one on the right to adequate housing generally, the other on the specific right to be free from forced evictions.[10] The Inter-American Commission can and should use these General Comments, which are included in the submitted materials, as their point of departure in beginning to address the right to adequate housing in the Inter-American system. I will return briefly to them in explaining some of the criteria that can be used to monitor compliance with State obligations with respect to the right to adequate housing.

                        2. American Convention on Human Rights (arts. 11 and 26)

As the instrument that put the Declaration's expressly-recognized rights and guarantees into treaty form, it is no surprise that the right to adequate housing is also directly protected in the American Convention. Convention Article 11 provides that "no one may be the object of arbitrary or abusive interference with his [or her] . . . home", paralleling Declaration art. IX.

Convention article 26, like its Declaration counterpart in article XI, protects the full scope of the right to adequate housing. This is made clear in the wording of article 26, which protects the rights implicit in the social and economic standards on housing set forth in the OAS Charter. These standards include the obligation to take all appropriate steps to ensure "adequate housing for all sectors of the population" (art. 34.k).

As the text and structure of the Convention make clear, article 26 includes a fundamental set of the "protected rights" recognized in the Convention. The Commission has previously found that it includes the guaranteed rights to health and to social security.[11] In a similar line, it must be read, in accordance with its text, to include the right to adequate housing for all sectors of the population. The Commission should make this clear as it continues its work on the right to adequate housing in the Americas.

B.    Component Guarantees of the Right to Adequate Housing

As the United Nations Committee on Economic, Social and Cultural Rights (UN Committee on ESCR) has underscored, "the right to adequate housing cannot be viewed in isolation from other human rights contained in the two International Covenants and other applicable international instruments." In this regard, "the full enjoyment of other rights...is indispensable if the right to adequate housing is to be realized and maintained by all groups in society."[12]

Noting these "indispensable" rights for the full realization of the right to adequate housing, the Committee refers to the guarantees of non-discrimination, human dignity, freedom of expression, freedom of association (such as for tenants and other community-based groups), freedom of residence, the right to participate in public decision-making, and the right not to be subjected to arbitrary or unlawful interference with one's privacy, family, home or correspondence, which "constitutes a very important dimension in defining the right to adequate housing."[13] It also notes the importance of the right to effective domestic legal remedies.[14]

Every one of these rights, including several others of obvious import to the realization of the right to adequate housing - such as the rights to property, health, and due process - are protected in the American Declaration and American Convention, over which the Commission exercises both promotional and contentious competence with regard to every State in the Americas.

The following rights will be further flushed out in the oral testimonies. Petitioners urge the Honorable Commission to keep these essential dimensions constantly in mind as it continues to address these fundamental guarantees in their housing-related aspects.

-          Right to Property (Declaration art. XXIII, Convention art. 21).

-          Right to Privacy (Declaration art. IX, Convention art. 11).

-          Right to Non-Discrimination and Equal Protection before the Law (Declaration art. II, Convention arts. 1, 24).

-          Freedom of Residence (Declaration art. VIII, Convention art. 22).

-          Right to Due Process (Declaration art. XXVI, Convention art. 8).

-          Right to Judicial Protection (Declaration art. XXVIII, Convention art. 25).

-          Right to Life, Liberty and Security (Declaration art. I, Convention arts. 4, 7).

-          Right to Integrity / Freedom from Cruel, Inhuman and Degrading Treatment or Punishment (Declaration art. I, Convention art. 5).

-          Right to Family/Rights of the Child (Declaration art. VI, VII, Convention arts. 17, 19).

-          Freedom of Expression & Association (Declaration arts. IV, XXII, Convention art. 13, 16).

-          Right to Participate in Public Decision-Making (Declaration art. XX, Convention art. 23).

-          Right to Health (Declaration art. XI, Convention art. 5, 26).

-          Right to Education (Declaration art. XII, Convention art. 26).

-          Right to Social Security (Declaration art. XVI, Convention art. 26).

It is thus clear that the right to adequate housing - both as a right in itself and in its component dimensions - is firmly and uncategorically protected in the inter-American human rights system. Pursuant to its Statute and Rules of Procedure, the Commission has competence to monitor and adjudicate violations of this fundamental right with respect to all Member States of the Organization.

II.         State Obligations to Respect and Ensure the Right to Adequate Housing

Once the guarantees protecting the right to adequate housing are identified, the next question involves identifying the obligations that States have assumed with regard to them, lack of compliance with which implicates the international responsibility of the breaching State. In the inter-American system, the human rights obligations of OAS Member States are laid out in articles 1 and 2 of the American Convention and the preamble of the American Declaration. Both instruments establish the obligations of States to "respect" and "ensure" all human rights recognized in the system.

Article 1 of the American Convention states that all States Parties "undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination (...)." Article 2, which further elaborates the "ensure" prong of article 1, provides that "[w]here any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt...measures as may be necessary to give effect to those rights or freedoms."

These obligations apply to all rights and freedoms recognized in the Convention, which include all of those rights and freedoms recognized in chapters II and III on "Protected Rights" (i.e., all those in articles 3-26), including the right to adequate housing. These same obligations apply to the rights enshrined in the American Declaration, which also includes the full range of housing and housing-related rights.[15]

It is important to emphasize here that there is no distinction between the obligations that apply to the rights in Chapter II and those in Chapter III of the Convention - i.e., those nominally referred to as "civil and political rights" and "economic, social and cultural rights." While it is often assumed that the "immediate" obligations in articles 1 and 2 apply to "civil and political rights," while a lesser standard of "progressive realization" or "progressive development" applies to "economic, social and cultural rights," this assumption does not stand on two feet. This is clear not only from the text and structure of the Convention (which makes clear that articles 1 and 2 apply to all protected rights), but also from the interpretation of other similar treaty obligations and - perhaps most importantly - the inability to categorically describe any right as falling squarely into one category or the other.

In this regard it is important to consider the work of both the U.N. Human Rights Committee and Committee on ESCR on the matter, each with competence over one of the two International Covenants on Human Rights. [The same conclusions apply as well to the other four active UN treaty monitoring bodies.]

The U.N. Human Rights Committee applies the obligations to "respect" and "ensure," as laid out in article 2 of the ICCPR, to all protected rights in the Covenant. It does this - as it must - even when it addresses the "economic, social and cultural" dimensions of the rights protected in the ICCPR, an instrument which contains many of the same guarantees that are found in the ICESCR. Thus, for example - and as will be pointed out further by my colleague Mr. Porter - the Human Rights Committee has been insistent that States have the obligation to "take all appropriate measures" to address homelessness and the serious health issues that accompany it, by virtue of their obligations to ensure the right to life (art. 6).

For its part, the U.N. Committee on ESCR has made clear that "[t]he central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein...requiring Governments to do so 'by all appropriate means'." By doing so, "the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other relevant considerations, to be taken into account," while also being clear that the obligations incumbent upon States Parties are of "immediate effect."

In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.[16]

That is, while the "full realization" of economic, social and cultural rights - like "civil and political rights" - is subject to the principle of progressivity in the sense that it cannot be achieved immediately and will require a broad spectrum of measures to be put in place at all different levels of government and society, the obligations imposed on States to work toward that goal are immediate with regard to all rights. In this sense, the Committee has underscored that "several principles follow from the duty to give effect to the Covenant and must therefore be respected":

First, the means of implementation chosen must be adequate to ensure fulfilment of the obligations under the Covenant. The need to ensure justiciability (see para. 10 below) is relevant when determining the best way to give domestic legal effect to the Covenant rights. Second, account should be taken of the means which have proved to be most effective in the country concerned in ensuring the protection of other human rights. Where the means used to give effect to the Covenant on Economic, Social and Cultural Rights differ significantly from those used in relation to other human rights treaties, there should be a compelling justification for this, taking account of the fact that the formulations used in the Covenant are, to a considerable extent, comparable to those used in treaties dealing with civil and political rights.[17]

The same is true of the rights protected in Chapter II and Chapter III of the American Convention on Human Rights, and the full range of rights protected in the American Declaration. As the example of the right to housing makes clear, there is no clear distinction between "civil and political" and "economic, social and cultural" rights in practice. Rather, all represent distinct dimensions of what can only be deemed "human rights." As human rights, all rights imply the same obligations on the part of the State to respect and ensure their full realization in the shortest time possible.

With regard to housing rights, the obligations to respect and ensure entail the obligation to take all necessary and appropriate measures to ensure the right to adequate housing, in its manifold dimensions, to all persons within a State's jurisdiction. That is, the right to adequate housing, like all human rights, includes a wide variety of negative and positive aspects - from negative liberties to be free from interference, to positive entitlements to have access to due process and judicial protection, to affirmative guarantees of legislative and policy protections. We consider these below. 

A.     Obligation to Respect the Right to Adequate Housing

The first, most basic obligation assumed by States Parties under article 1(1) is "to respect the rights and freedoms" of all persons subject to their jurisdiction. This duty is principally negative in nature; it says "thou shalt not." It constitutes an absolute, definitive injunction upon abusive state power. As such, it is not qualified by considerations relating to available resources and is not subject to the "principle of progressivity."[18] Under international law, a State is responsible for the acts of its agents. Accordingly, the duty to respect is violated whenever a State organ, official, public entity, or person acting under color of state law directly participates in, authorizes, or is complicit in acts or omissions that negatively impair the exercise of protected rights.[19] This is true "even when those agents act outside the sphere of their authority or violate internal law."[20]

With regard to the right to adequate housing, the duty to respect may specifically be defined as consisting of "noninterference by the State in the freedom of action and in the use of the resources of each individual or group in order to meet by themselves their economic and social needs."[21]

Perhaps the prime example of such a breach is participation in forced evictions, including demolitions, displacements or removals, and homeless sweeps.[22] Defined as "the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection," the UN Committee on ESCR has defined such practices as "prima facie incompatible with the requirements of the [ICESCR]."[23] The UN Commission on Human Rights has likewise indicated that "forced evictions are a gross violation of human rights," calling upon Governments to eradicate them,[24] while a U.N. special rapporteur on the topic has observed that "the issue of forced removals and forced evictions has in recent years reached the international human rights agenda because it is considered a practice that does grave and disastrous harm to the basic civil, political, economic, social and cultural rights of large numbers of people, both individual persons and collectivities."[25]

It is important to emphasize here that the duty to "respect" the right to housing is not qualified by considerations relating to available resources and, by definition, is not subject to the "principle of progressivity." It simply says "thou shalt not" or, perhaps more aptly, "thou shalt not, unless...[the State provides determined procedural guarantees before undertaking the intervention]."

This recognition of the linkage between the obligation to respect rights and the obligation to ensure due process protections and effective remedies is important. That is, evictions or demolitions may take place under certain circumstances, but only when legally-determined procedural protections have previously been ensured.[26] Where these procedural guarantees have not been provided, interventions with housing and the inviolability of the home are always prohibited, based on the obligation to "respect" the rights in question. Again, this obligation - as distinct from the procedural protections that might have to be offered, at (sometimes substantial) financial cost to the State - are not subject to available resources.

According to the UN Committee on ESCR, the procedural protections which should be applied in relation to forced evictions include[27]:

-           *Consultation---*an opportunity for genuine consultation with those affected;

-           Exploration of all feasible alternatives with participation of affected

-           *Notice---*adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;

-           *Information---*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;

-           *Presence of government officials---*especially where groups of people are involved, government officials or their representatives to be present during an eviction;

-           *Identification of agents---*all persons carrying out the eviction to be properly identified;

-           *Temporal constraints---*evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;

-           Reasonableness, legality, and proportionality---in line with the Human Rights Committee, justified evictions may only be carried out in strict compliance with the relevant provisions of international human rights law, in cases specifically envisaged by the law, and in accordance with general principles of reasonableness and proportionality.

-           Access to adequate alternative or replacement housing---"Evictions should not result in rendering individuals 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."[28]

-           *Legal remedies---*provision of legal remedies; and

-           *Legal assistance---*provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

We highlight in particular here the obligation to ensure adequate replacement housing, as it is an issue of central importance for this hearing. Indeed, long recognizing the issue of forced evictions as a serious one, the international community has affirmed: 

-          "major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made." (1976 Vancouver Declaration on Human Settlements)

-          "[Governments have the] fundamental obligation to protect and improve houses and neighbourhoods, rather than damage or destroy them" (United Nations General Assembly, 1988 Global Strategy for Shelter to the Year 2000)

-          "[Governments commit 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" (United Nations Habitat Agenda).[29]

Where this is not done, and property or housing is destroyed and persons displaced from their homes, international responsibility attaches to the State for breach of its obligation to respect the housing rights of the persons affected.

B.    *Obligation to Ensure the Right to Adequate Housing---through Adoption of "All Appropriate Measures"*

The "duty to ensure" is the second general obligation recognized in articles 1(1) and 2. This obligation, which is fulfilled by "adopting all appropriate measures," is positive in nature. As the Inter-American Court made clear two decades ago, it requires States parties to take affirmative measures, of a judicial, legislative, and executive nature, "to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights."[30] "As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation."[31] It also requires the State to "take all appropriate measures" to fulfill rights where individuals cannot realize them on their own.

Significantly, the duty to ensure protected rights and freedoms requires States parties to protect individuals from the harmful acts and omissions of not only state agents but also private persons or groups (e.g., landlords, corporations, polluters). As recognized by the Court, "when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention . . . the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction."[32] Acts of private persons "lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention."[33] "What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible."[34]

The obligation to "ensure" has many varied components, the specific contours of which are largely within the discretion of the State, subject to international standards - as the Inter-American Court reminded us in Velasquez Rodriguez.[35] Here, however, we focus on three critical aspects which must always be undertaken as "the most appropriate means" of achieving the full realization of rights:     (1) adoption of appropriate legislation; (2) provision of effective remedies; and (3) adoption of national plans of action.

While each of these categories merits further indepth analysis in regard to all aspects of housing and housing-related rights, below we limit ourselves to some of the statements made by the U.N. Committee on ESCR, specifically in the context of the right to adequate housing and freedom from forced evictions.

1.   Adoption of Appropriate Legislation

Specifically with regard to forced evictions, the U.N. Committee on ESCR has affirmed, "Article 2(1) of the Covenant requires States Parties to use 'all appropriate means', including the adoption of legislative measures, to promote all the rights protected under the Covenant. Although the Committee has indicated in its General Comment No.3 (1991) that [legislative] measures may not be indispensable in relation to all rights, it is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection."[36] Such legislation should include measures which

(a)    provide the greatest possible security of tenure to occupiers of houses and land,

(b)    conform to the Covenant and

(c)    are designed to control strictly the circumstances under which evictions may be carried out.[37]

"The legislation must also apply in relation to all agents acting under the authority of the State or who are accountable to it. Moreover, in view of the increasing trend in some States towards their government greatly reducing their responsibilities in the housing sector, States Parties must ensure that legislative and other measures are adequate to prevent and, if appropriate, punish forced evictions carried out, without appropriate safeguards, by private persons or bodies."[38]

The Committee has emphasized that "States parties should therefore review relevant legislation and policies to ensure that these are compatible with the obligations arising from the right to adequate housing and to repeal or amend any legislation or policies that are inconsistent with the requirements of the Covenant."[39]

2.  Provision of Effective Remedies (investigate, sanction, remedy)

"The Committee views many component elements of the right to adequate housing as being at least consistent with the provision of domestic legal remedies. Depending on the legal system, such areas might include, but are not limited to:

-           legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions;

-           legal procedures seeking compensation following an illegal eviction;

-           complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination;

-           allegations of any form of discrimination in the allocation and availability of access to housing;

-           complaints against landlords concerning unhealthy or inadequate housing conditions, and

-           class action suits in situations involving significantly increased levels of homelessness."[40]

3. Adoption of National Plans of Action

The most appropriate means for achieving the full realization of the right to adequate housing will almost invariably require the adoption of a national housing strategy. Such a plan or strategy should

-          define the objectives for the development of shelter conditions,

-          identify the resources available to meet these goals and the most cost-effective way of using them; and

-          set out the responsibilities and time-frame for the implementation of the necessary measures.[41]

"Both for 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 of those affected, including the homeless, the inadequately housed and their representatives. Furthermore, steps should be taken to ensure coordination between ministries and regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy, etc.) with the obligations under article 11 of the Covenant."[42]

The obligation to adopt national plans of action with regard to housing is also laid out in General Comment No. 1 of the U.N. Committee on ESCR, which emphasizes that that duty - which attaches to all rights - should involve "the elaboration of clearly stated and carefully targeted policies, including the establishment of priorities which reflect [protected rights]."[43] Indeed, even where resources are demonstrably inadequate to attain full realization of protected rights, a procedural requirement remains for the state to monitor the extent of nonrealization and to devise a detailed plan of appropriate strategies, programs, and other measures of an administrative, legislative, financial, educational, and social nature. The U.N. Committee on ESCR has recognized that an "obligation 'to work out and adopt a detailed plan of action for the progressive implementation' of each of the rights contained in the Covenant is clearly implied by the obligation in article 2, paragraph 1 'to take steps. . . by all appropriate means . . . .'"[44]

This same obligation to "take steps" or "adopt measures" is found in articles 1 and 2 of the American Convention. It is reiterated in article 26.

III.   Criteria for Monitoring and Determining Compliance with State Obligations to Respect and Ensure the Right to Adequate Housing

While there are many ways in which the right to adequate housing may be broken down, particularly with regard to its component parts, emphasis can be placed on two central criteria: (1) adequacy and (2) effective domestic remedies. The ESCR Committee of the United Nations has written rather extensively on both essential criteria. Their conclusions, which have been echoed by other international bodies - as will be highlighted in a subsequent presentation - should be borrowed and built-upon by the Inter-American Commission as they interpret cases and information in the Inter-American region.

Below we simply repeat the conclusions of the U.N. Committee on ESCR in its General Comment 4 with regard to the critical concept of "adequacy" in the right to adequate housing. We hope that they will provide guidance to the Honorable Commission on how it too may begin to monitor this right and, just as importantly, require all OAS Member States to report on the measures they are taking to respect and ensure all dimensions of the right to adequate housing within their respective jurisdictions.

A.    Adequacy

7. In the Committee's view, the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one's head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity. This is appropriate for at least two reasons. In the first place, the right to housing is integrally linked to other human rights and to the fundamental principles upon which the Covenant is premised. This "the inherent dignity of the human person" from which the rights in the Covenant are said to derive requires that the term "housing" be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all persons irrespective of income or access to economic resources. Secondly, the reference in article 11 (1) must be read as referring not just to housing but to adequate housing. As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: "Adequate shelter means ... 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".

8. Thus the concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute "adequate housing" for the purposes of the Covenant. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. They include the following:

(a) Legal security of tenure. Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups;

(b) Availability of services, materials, facilities and infrastructure. An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services;

(c) Affordability. Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by States parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. States parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increases. In societies where natural materials constitute the chief sources of building materials for housing, steps should be taken by States parties to ensure the availability of such materials;

(d) Habitability.  Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well. The Committee encourages States parties to comprehensively apply the Health Principles of Housing e prepared by WHO which view housing as the environmental factor most frequently associated with conditions for disease in epidemiological analyses; i.e. inadequate and deficient housing and living conditions are invariably associated with higher mortality and morbidity rates;

(e) Accessibility. Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups. Within many States parties increasing access to land by landless or impoverished segments of the society should constitute a central policy goal. Discernible governmental obligations need to be developed aiming to substantiate the right of all to a secure place to live in peace and dignity, including access to land as an entitlement;

(f) Location. Adequate housing must be in a location which allows access to employment options, health-care services, schools, child-care centres and other social facilities. This is true both in large cities and in rural areas where the temporal and financial costs of getting to and from the place of work can place excessive demands upon the budgets of poor households. Similarly, housing should not be built on polluted sites nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants;

(g) Cultural adequacy. The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing. Activities geared towards development or modernization in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed, and that, inter alia, modern technological facilities, as appropriate are also ensured.

                                    *                      *                      *                      *

We thank the Honorable Commission for the serious attention it is devoting to this critical issue in the Americas and look forward to working more closely with it in common pursuit of the full realization of the "right to adequate housing for all sectors of the population."

----[1] Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A, U.N. GAOR, 3d Sess., 67th plen. mtg., U.N. Doc. A/810 (1948), art. 25.1 ("Everyone has the right to a standard of living adequate for the health and well-being of himself and of 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.") and art. 12 ("No one shall be subjected to arbitrary interference with his . . . home . . . . Everyone has the right to the protection of the law against such interference or attacks."); International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, 6 I.L.M. 360, entered into force Jan. 3, 1976 [hereinafter ICESCR], art. 11.1 ("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 (...)"); International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR], art. 17 ("No one shall be subjected to arbitrary or unlawful interference with his (...) home ... Everyone has the right to the protection of the law against such interference or attacks.").
[2] Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981, art. 14(2)(h) ("[States Parties] 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."); International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, art. 5(e)(iii) ("States Parties undertake to (...) guarantee the right of everyone...to equality before the law, notably in the enjoyment of the following rights: ... The right to housing."); Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, art. 27(3) ("States Parties...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."); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003, art. 43(1)(d) ("Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to: ... Access to housing, including social housing schemes, and protection against exploitation in respect of rents.");
[3] See generally General Comment No. 4, The Right to Adequate Housing, Comm. on Econ., Soc. & Cultural Rts (Sixth session, 1991), U.N. Doc. E/1992/23, annex III at 114 (1991), para. 9.
[4] Eur. Ct. H.R., Selcuk and Asker v. Turkey (1998), para. 78 ("Bearing in mind in particular the manner in which the applicants' homes were destroyed (...) and their personal circumstances, it is clear that they must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3.").
[5] See, e.g., Application 6780/74 and 6950/75, Cyprus v. Turkey, report of the Commission, paras. 208-10, European H.R. Reports Vol. 4 (1981), at 482 ("The evictions of Greek Cypriots from houses, including their own homes, which are imputable to Turkey under the Convention, amount to an interference with rights guaranteed under article 8(1) of the Convention, namely the right of these persons to respect for their home, and/or the right to respect for their private life."); Eur. Ct. H.R., López Ostra v. Spain, Judgment of Dec. 9, 1994 (Ser. A) No. 303(C) (finding Spain responsible for violating art. 8 of the European Convention by failing to adopt measures to avoid the efflux of sulfur-hydroxide from a water and residue purification station, an omission on the part of the State that created a health risk for the inhabitants of the neighboring houses and constituted a grave crime against the environment).
[6] See, e.g., Eur. Ct. H.R., James et al. v. United  Kingdom, Judgment of Feb. 21, 1986 (Ser. A) No. 98 (rejecting argument that right to property prohibited legislation granting house renters right to forced cession of property after 21 years) ("modern societies consider housing a primordial necessity, whose regulation cannot be left completely to the free play of the market"); Eur. Ct. H.R., Mellcher et al., v. Austria, Judgment of Dec. 19, 1989 (Ser. A) No. 169 (finding that States have a wide margin of discretion in legislating social and economic policies, such as protections on the right to housing, and thus state-legislated rent caps do not violate the right to property).
[7] Afr. Comm'n on H.R., Social and Economic Rights Action Center/CESR v. Nigeria, Communication No. 155/96 (Oct. 2001), para. 63 ("Although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article 16 above, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health and family life are adversely affected. It is thus noted that the combined effect of Articles 14, 16 and 18 reads into the Charter a right to shelter or housing (...).").
[8] Statute of the Inter-American Commission on Human Rights, art. 1 ("1. The Inter-American Commission on Human Rights is an organ of the Organization of the American States, created to promote the observance and defense of human rights and to serve as consultative organ of the Organization in this matter. 2. For the purposes of the present Statute, human rights are understood to be: a. The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto; b. The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states."). 
[9] This link is also apparent in the Universal Declaration of Human Rights, the sister instrument to the American Declaration and the instrument that most closely informed the drafting of the ICESCR. Article 25.1 of the Universal Declaration proclaims that "Everyone has the right to a standard of living adequate for the health and well-being of himself and of 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." It is worth noting the strong influence that the Latin American delegations made to the drafting of the UDHR, especially in regard to rights such as those to housing, education, labor and health. In this sense, the UDHR was in large part a reflection of the norms included in the American Declaration, which was adopted several months before its universal counterpart.
[10] General Comment No. 4, The Right to Adequate Housing, Comm. on Econ., Soc. & Cultural Rts (Sixth session, 1991), U.N. Doc. E/1992/23, annex III at 114 (1991); General Comment No. 7, Forced evictions, and the right to adequate housing, Comm. on Econ., Soc. & Cultural Rts (Sixteenth session, 1997), U.N. Doc. E/1998/22, annex IV at 113 (1998) [hereinafter General Comment 7].
[11] See, e.g., Inter-Am. Ct. H.R., Five Pensioners Case. 
[12] General Comment 4, supra note 10, para. 9.
[13] Id.
[14] Id. para. 17.
[15] While the American Declaration does not have an independent provision on state obligations, the Illustrious Commission has interpreted the commitment to "protect" the "essential rights of man" as encompassing the same obligations established in the Convention.  
[16] General Comment No. 9, The domestic application of the Covenant (Nineteenth session, 1998), U.N. Doc. E/C.12/1998/24 (1998), paras. 1-2 [hereinafter General Comment 9].
[17] Id. para. 7.
[18] This has been explicitly recognized by the UN Committee on ESCR in its General Comment 7, para. 9 ("in view of the nature of the practice of forced evictions, the reference to Article 2(1) to progressive achievement based on the availability of resources will rarely be relevant. The State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions.").
[19] Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988 (Ser. C) No. 4, paras. 169--72 ("According to Article 1(1), any exercise of public power that violates the rights recognized by the Convention is illegal. Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention . . . . [U]nder international law a state is responsible for the acts of its agents . . . and for their omissions, even when those agents act outside the sphere of their authority or violate internal law. . . . Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State.").
[20] Id. para. 170.
[21] Quito Declaration on the Enforcement and Realization of Economic, Social, and Cultural Rights in Latin America and the Caribbean, para. 28, adopted July 24, 1998, in 2 Yale Hum. Rt. & Dev. L.J. 215 (1999), available at <http://diana.law.yale.edu/yhrdlj>.
[22] See, e.g., General Comment 7, supra note 10, paras. 6, 8 ("Although the practice of forced evictions might appear to arise primarily in heavily populated urban areas, it also takes place in relation to forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements.... Other instances of forced evictions occur in the name of development. They might 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, the clearing of land for agricultural purposes, unbridled speculation in land, or the holding of major sporting events like the Olympic Games.").
[23] Id. para. 1; see also General Comment 4, supra note 10, para. 18 ("[I]nstances of forced eviction are prima facie incompatible with the requirements of the Convenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.").
[24] See, e.g., U.N. Hum. Rts. Comm'n, Forced Evictions and Human Rights: Fact Sheet No. 25, May 1996, at 7.
[25] E/CN.4/Sub.2/1993/8, para. 21 (emphasis added). In this sense, the UN Committee on ESCR observes that "Owing to the interrelation and interdependency which exist among all human rights, forced evictions frequently violate other human rights. Thus, while manifestly breaching the rights enshrined in the Covenant, the practice of forced evictions may also 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." General Comment 7, supra note 10, para. 5. In a similar manner, the U.N. Human Rights Commission has observed:

Evicted people not only lose their homes and neighborhoods, in which they have often invested a considerable proportion of their incomes over the years, but are also often forced to relinquish their personal possessions, since usually no warning is given before bulldozers or demolition squads destroy their settlements. Evictees also lose the often complex reciprocal relationships which provide a safety net or survival network of protection against the costs of ill health, income decline or the loss of a job, and which allow many tasks to be shared. They often lose one or more sources of livelihood as they are forced to move away from the area where they had jobs or sources of income.

U.N. Hum. Rts. Comm'n, Forced Evictions and Human Rights: Fact Sheet No. 25, May 1996, at 6.
[26] General Comment 7, supra note 10, para. 16 ("Appropriate procedural protection and due process are essential aspects of all human rights but it is especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognized in both International Human Rights Covenants.").
[27] Id. paras. 14-17.
[28] Id. para. 17.
[29] Id. para. 2.
[30] Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988 (Ser. C) No. 4, para. 166.
[31] Id. (emphasis added).
[32] Id. para. 176.
[33] Id. para. 172.
[34] Id. para. 173.
[35] See generally id. ("It is not possible to make a detailed list of all such measures, since they vary with the law and the conditions of each State party.").
[36] General Comment 7, supra note 10, para. 10.
[37] Id.

[38] Id.

[39] Id.

[40] General Comment 4, supra note 10, art. 17.
[41] Id. art. 12 (citing paragraph 32 of the United Nations sponsored Global Strategy for Shelter).
[42] Id.
[43] General Comment No. 1.
[44] Id. para. 4.