Report - Office of the High Commissioner on Human Rights

2.4 The Elements <strong>of</strong> <strong>the</strong> Human Right to Adequate Housing as a Monitoring Framework 9
A case developed in response to a violation <strong>of</strong> <strong>the</strong> right to adequate housing must be based on <strong>the</strong>
three pillars <strong>of</strong> morals, laws and statistical data.
a. The moral argument
Human rights provide a common language for moral issues based on identifying <strong>the</strong> basic human needs
<strong>of</strong> people affected. For example, peoples’ movements have articulated what ‘home’ means to <strong>the</strong>m in
statements such as <strong>the</strong> Indian National Housing Rights Bill, 1988, <strong>the</strong> Jerusalem Declaration, 1994 (identifies
Palestinian housing rights under military occupation), <strong>the</strong> Bangkok Declaration, 1995 (identifies <strong>the</strong>
common priority <strong>of</strong> land rights, particularly for indigenous and tribal peoples) and <strong>the</strong> Draft World
Charter on Rights to <strong>the</strong> City, due to be completed in 2005, (identifies urban land and housing issues
- transportation, energy, forced evictions etc.).
b. The legal argument
Human rights also provide a common legal framework, which is articulated through treaties, world
conference documents and o<strong>the</strong>r international agreements, as well as through national constitutions
and laws. These form <strong>the</strong> sources <strong>of</strong> <strong>the</strong> legal right to adequate housing.
Within international law <strong>the</strong>re are ‘hard law’ and ‘s<strong>of</strong>t law’ sources for <strong>the</strong> right to adequate housing.
Hard law sources consist <strong>of</strong> human rights treaties (such as CEDAW), which are agreed upon, signed
and ratified by States. Once ratified, <strong>the</strong> treaties become obligatory and come into force domestically
through national laws. Once ratified, governments have binding obligations to <strong>the</strong>ir citizens and to
o<strong>the</strong>r States to implement <strong>the</strong> treaty standards, which form hard law sources for rights. In addition,
<strong>the</strong>re are certain mechanisms for enforcement that operate in accompaniment to such treaties, e.g. <strong>the</strong>
obligation to report regularly to treaty committees as well as complaints procedures under <strong>the</strong> optional
protocols.
S<strong>of</strong>t law refers to <strong>the</strong> interpretation <strong>of</strong> treaties (e.g. general comments or concluding observations made
by treaty committees) and non-binding international agreements (e.g. declarations, world conference
outcome documents etc.), which reflect <strong>the</strong> general political will <strong>of</strong> States to implement principles, but
are not in <strong>the</strong>mselves binding mechanisms. For example, while still constituting an important
international agreement, <strong>the</strong> Millennium Declaration <strong>of</strong> 2000 (which contains <strong>the</strong> Millennium
Development Goals) is not binding. Similarly, while Security Council resolutions are enforceable,
General Assembly resolutions are not, <strong>the</strong> latter forming part <strong>of</strong> s<strong>of</strong>t law.
Although s<strong>of</strong>t law is not binding, it can still be useful in addressing human rights violations. For
instance, where <strong>the</strong> treaty text does not provide specific guidance on what is required to achieve <strong>the</strong>
rights recognised, s<strong>of</strong>t law interpretations can be looked to as a guide. It is strategically important to
be able to identify those sources that have an obligatory power from those that do not, and understand
how each one could be relatively invoked and applied.
c. The statistical argument
Numbers provide a clear means <strong>of</strong> identifying <strong>the</strong> real dimensions <strong>of</strong> <strong>the</strong> problem (i.e. <strong>the</strong> numbers
<strong>of</strong> victims; <strong>the</strong> extent <strong>of</strong> <strong>the</strong> damage). Numbers assist to quantify <strong>the</strong> material and non-material costs
<strong>of</strong> a violation (e.g. in cases <strong>of</strong> inheritance, land confiscation, forced evictions etc.). It is important to
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This session was presented by Joseph Schechla.
10 WOMEN’S RIGHTS TO ADEQUATE HOUSEING AND LAND