Global Report on Human Settlements 2007 - PoA-ISS

270
Towards safer and more secure cities
The creative use of
regulation and
regulatory audits has
… been suggested as
an innovative way of
… increasing tenure
security
Few would argue
against the view that
the universal enjoyment
of housing
rights remains a very
long-term proposition
States are obliged to
respect, protect and
fulfil all human
rights, including the
housing rights of
homeless persons
continues unabated. As noted earlier, the Millennium
Development Goal (MDG) of improving the lives of 100
million slum dwellers by 2020 does, indeed, pale in comparison
with the projected urban population growth of some 2
billion between 2000 and 2020 (see also Box 6.1). 30
The creative use of regulation and regulatory audits
has also been suggested as an innovative way of promoting
improvements in the urban landscape and increasing tenure
security. Developed as a means for promoting the upgrading
of existing informal settlements, this approach seeks to
strengthen regulatory frameworks to better benefit the poor.
Among the positive aspects of regulation are that it allows
orderly land development and efficient land management;
attracts and guides inward local investment; maximizes
public revenues; protects the environment and public
health; mitigates the impact of disasters; helps the poor
access improved housing, services and credit; protects
occupants from unscrupulous developers; minimizes
harmful externalities; and allows for common land uses.
Conversely, the negative aspects of regulation include the
dangers of over-regulating and, therefore, discouraging
investment; imposing regulations, standards or administrative
procedures that increase costs to levels that many
people cannot afford; failing to reflect the cultural priorities
of different groups, especially in the ways in which people
perceive and use dwellings and open space; institutionalizing
corruption through fees for non-enforcement; and creating
overlapping or contradictory conditions that expose developers
or individuals to the risk of conforming to one regulation
or standard and therefore of contravening another. 31
COMBATING
HOMELESSNESS AND
PROTECTING THE RIGHTS
OF HOMELESS PEOPLE
As discussed above, the international legal foundations of
the human right to adequate housing are designed to ensure
access to a secure, adequate and affordable home for all
people in all countries. The long recognition of this right
under international human rights law, however, has yet to
sufficiently influence national policy, law and practice on
housing rights; as a result, few rights are denied as
frequently, on such a scale and with the degree of impunity
as housing rights. Whether in terms of outright homelessness,
forced evictions and other forms of displacement;
life-threatening, unhealthy and dangerous living conditions;
the destruction of homes during armed conflict; systematic
housing discrimination against certain vulnerable groups
(particularly women); campaigns of ‘ethnic cleansing’; or any
number of other circumstances where housing rights are
denied, few would argue against the view that the universal
enjoyment of housing rights remains a very long-term proposition.
In essence, states are obliged to respect, protect and
fulfil all human rights, including the housing rights of
homeless persons. The obligation to respect human rights
requires states to refrain from interfering with the enjoyment
of rights. As noted, housing rights are violated if a state
engages in arbitrary forced evictions. The obligation to
protect requires states to prevent violations of such rights by
third parties, such as landlords or private developers. If the
exercise of these two obligations does not result in the
access by everyone to an adequate home, then the obligation
to fulfil becomes relevant, requiring states to take appropriate
legislative, administrative, budgetary, judicial and other
measures towards the full realization of such rights. Thus,
the failure of states to take such steps, to the maximum of its
available resources, to achieve the universal enjoyment of
housing rights, would not comply with human rights principles.
32 So, while states are not necessarily required to build
homes for the entire population, they are required to undertake
a whole range of steps, both positive and negative in
nature, grounded in human rights law, which are designed to
ensure the full realization of all human rights, including the
right to adequate housing by the homeless.
At the same time, there are a number of states that
have accepted the fundamental legal responsibility of providing
an adequate home to certain specifically identified
homeless groups. There are laws and jurisprudence in
several states, indicating that under certain circumstances,
the state is legally required to provide particular individuals
or groups with adequate housing in an expedient manner:
• In Finland, the law requires local government authorities
to provide housing resources for the severely
handicapped under certain circumstances. Furthermore,
local governments are required to rectify inadequate
housing conditions or, as the case may be, to provide for
housing when inadequate or non-existent housing
causes the need for special child welfare or constitutes
a substantial hindrance to rehabilitating the child or the
family. 33
• In the UK, local city councils are required to provide
adequate accommodation to homeless families and
persons ‘in priority need’ (see Box 11.7).
• In Germany, two additional legal duties are added to the
legal framework relating to the rights of the homeless.
First, the law provides that social welfare payments may
be used to pay rent arrears in order to maintain the
dwelling and to prevent homelessness. Second, it
proclaims that individuals (including the homeless) who
have special social difficulties that they cannot
themselves overcome may claim assistance to avert,
eliminate or ease particular difficulties – including
measures to help procure and maintain a dwelling. 34
In addition to these national-level rights of the homeless,
many states approach housing requirements, at least in a de
facto manner, in terms of providing housing to the homeless
following natural disasters, and to refugees and displaced
persons, and while perhaps not invariably accepting such
duties in law, in practice temporary (and sometimes permanent)
homes are provided. Interestingly, the ICESCR is now