CESCR
General Comment No. 4
The right to adequate housing (Art. 11[1] of the Covenant)
Sixth session 1991
E/1992/23
1. Pursuant
to article 11 (1) of the Covenant, States parties “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 human right
to adequate housing, which is thus derived from the right to an
adequate standard of living, is of central importance for the enjoyment
of all economic, social and cultural rights.
2. The Committee has been able to accumulate a large amount of information
pertaining to this right. Since 1979, the Committee and its predecessors
have examined 75 reports dealing with the right to adequate housing.
The Committee has also devoted a day of general discussion to the
issue at each of its third (see E/1989/22, para. 312) and fourth
sessions (E/1990/23, paras. 281-285). In addition, the Committee
has taken careful note of information generated by the International
Year of Shelter for the Homeless (1987) including the Global Strategy
for Shelter to the Year 2000 adopted by the General Assembly in
its resolution 42/191 of 11 December 1987.[1] The Committee has
also reviewed relevant reports and other documentation of the Commission
on Human Rights and the Sub-Commission on Prevention of Discrimination
and Protection of Minorities.[2]
3. Although a wide variety of international instruments address
the different dimensions of the right to adequate housing[3] article
11 (1) of the Covenant is the most comprehensive and perhaps the
most important of the relevant provisions.
4. Despite the fact that the international community has frequently
reaffirmed the importance of full respect for the right to adequate
housing, there remains a disturbingly large gap between the standards
set in article 11 (1) of the Covenant and the situation prevailing
in many parts of the world. While the problems are often particularly
acute in some developing countries which confront major resource
and other constraints, the Committee observes that significant problems
of homelessness and inadequate housing also exist in some of the
most economically developed societies. The United Nations estimates
that there are over 100 million persons homeless worldwide and over
1 billion inadequately housed.[4] There is no indication that this
number is decreasing. It seems clear that no State party is free
of significant problems of one kind or another in relation to the
right to housing.
5. In some instances, the reports of States parties examined by
the Committee have acknowledged and described difficulties in ensuring
the right to adequate housing. For the most part, however, the information
provided has been insufficient to enable the Committee to obtain
an adequate picture of the situation prevailing in the State concerned.
This general comment thus aims to identify some of the principal
issues which the Committee considers to be important in relation
to this right.
6. The right to adequate housing applies to everyone. While the
reference to “himself and his family” reflects assumptions as to
gender roles and economic activity patterns commonly accepted in
1966 when the Covenant was adopted, the phrase cannot be read today
as implying any limitations upon the applicability of the right
to individuals or to female-headed households or other such groups.
Thus, the concept of “family” must be understood in a wide sense.
Further, individuals, as well as families, are entitled to adequate
housing regardless of age, economic status, group or other affiliation
or status and other such factors. In particular, enjoyment of this
right must, in accordance with article 2 (2) of the Covenant, not
be subject to any form of discrimination.
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[5] 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, childcare
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.
9. As noted
above, 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. Reference has already
been made in this regard to the concept of human dignity and the
principle of non-discrimination. In addition, 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 other 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 be 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.
10. Regardless of the state of development of any country, there
are certain steps which must be taken immediately. As recognized
in the Global Strategy for Shelter and in other international analyses,
many of the measures required to promote the right to housing would
only require the abstention by the Government from certain practices
and a commitment to facilitating “self-help” by affected groups.
To the extent that any such steps are considered to be beyond the
maximum resources available to a State party, it is appropriate
that a request be made as soon as possible for international cooperation
in accordance with articles 11 (1), 22 and 23 of the Covenant, and
that the Committee be informed thereof.
11. 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.
The Committee is aware that external factors can affect the right
to a continuous improvement of living conditions, and that in many
States parties overall living conditions declined during the 1980s.
However, as noted by the Committee in its general comment No. 2
(1990) (E/1990/23, annex III), despite externally caused problems,
the obligations under the Covenant continue to apply and are perhaps
even 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.
12. While the most appropriate means of achieving the full realization
of the right to adequate housing will inevitably vary significantly
from one State party to another, the Covenant clearly requires that
each State party take whatever steps are necessary for that purpose.
This will almost invariably require the adoption of a national housing
strategy which, as stated in paragraph 32 of the Global Strategy
for Shelter, “defines the objectives for the development of shelter
conditions, identifies the resources available to meet these goals
and the most cost-effective way of using them and sets out the responsibilities
and time frame for the implementation of the necessary measures”.
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.
13. Effective monitoring of the situation with respect to housing
is another obligation of immediate effect. For a State party to
satisfy its obligations under article 11 (1) it must demonstrate,
inter alia, that it has taken whatever steps are necessary, either
alone or on the basis of international cooperation, to ascertain
the full extent of homelessness and inadequate housing within its
jurisdiction. In this regard, the revised general guidelines regarding
the form and contents of reports adopted by the Committee (E/C.12/1991/1)
emphasize the need to “provide detailed information about those
groups within ... society that are vulnerable and disadvantaged
with regard to housing”. They include, in particular, homeless persons
and families, those inadequately housed and without ready access
to basic amenities, those living in “illegal” settlements, those
subject to forced evictions and low-income groups.
14. Measures designed to satisfy a State party’s obligations in
respect of the right to adequate housing may reflect whatever mix
of public and private sector measures considered appropriate. While
in some States public financing of housing might most usefully be
spent on direct construction of new housing, in most cases, experience
has shown the inability of Governments to fully satisfy housing
deficits with publicly built housing. The promotion by States parties
of “enabling strategies”, combined with a full commitment to obligations
under the right to adequate housing, should thus be encouraged.
In essence, the obligation is to demonstrate that, in aggregate,
the measures being taken are sufficient to realize the right for
every individual in the shortest possible time in accordance with
the maximum of available resources.
15. Many of the measures that will be required will involve resource
allocations and policy initiatives of a general kind. Nevertheless,
the role of formal legislative and administrative measures should
not be underestimated in this context. The Global Strategy for Shelter
(paras. 6-67) has drawn attention to the types of measures that
might be taken in this regard and to their importance.
16. In some States, the right to adequate housing is constitutionally
entrenched. In such cases the Committee is particularly interested
in learning of the legal and practical significance of such an approach.
Details of specific cases and of other ways in which entrenchment
has proved helpful should thus be provided.
17. 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: (a) legal appeals aimed
at preventing planned evictions or demolitions through the issuance
of court-ordered injunctions; (b) legal procedures seeking compensation
following an illegal eviction; (c) 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; (d) allegations of any form of discrimination
in the allocation and availability of access to housing; and (e)
complaints against landlords concerning unhealthy or inadequate
housing conditions. In some legal systems it would also be appropriate
to explore the possibility of facilitating class action suits in
situations involving significantly increased levels of homelessness.
18. In this regard, the Committee considers that instances of forced
eviction 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.
19. Finally, article 11(1) concludes with the obligation of States
parties to recognize “the essential importance of international
cooperation based on free consent”. Traditionally, less than 5 per
cent of all international assistance has been directed towards housing
or human settlements, and often the manner by which such funding
is provided does little to address the housing needs of disadvantaged
groups. States parties, both recipients and providers, should ensure
that a substantial proportion of financing is devoted to creating
conditions leading to a higher number of persons being adequately
housed. International financial institutions promoting measures
of structural adjustment should ensure that such measures do not
compromise the enjoyment of the right to adequate housing. States
parties should, when contemplating international financial cooperation,
seek to indicate areas relevant to the right to adequate housing
where external financing would have the most effect. Such requests
should take full account of the needs and views of the affected
groups.
Notes
[1] Oxford, Oxford University Press, 1990.
[2] Official Records of the General Assembly, Forty-third Session,
Supplement No. 8, addendum (A/43/8/Add.1).
[3] Commission on Human Rights resolutions 1986/36 and 1987/22;
reports by Mr. Danilo Türk, Special Rapporteur of the Sub-Commission
(E/CN.4/Sub.2/1990/19, paras. 108-120; E/CN.4/Sub.2/1991/17, paras.
137-139); see also Sub-Commission resolution 1991/26.
[4] See, for example, article 25 (1) of the Universal Declaration
of Human Rights, article 5 (e) (iii) of the International Convention
on the Elimination of All Forms of Racial Discrimination, article
14 (2) of the Convention on the Elimination of All Forms of Discrimination
against Women, article 27 (3) of the Convention on the Rights of
the Child, article 10 of the Declaration on Social Progress and
Development, section III (8) of the Vancouver Declaration on Human
Settlements, 1976 (Report of Habitat: United Nations Conference
on Human Settlements (United Nations publication, Sales No. E.76.IV.7
and corrigendum, chap. I), article 8 (1) of the Declaration on the
Right to Development and the ILO Recommendation Concerning Workers’
Housing, 1961 (No. 115)).
[5] See note 1
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