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UNITED
NATIONS |
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E |
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Economic and Social
Council
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Distr.
GENERAL
E/C.12/2002/6
21 February 2002
Original: ENGLISH
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COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Twenty-eighth session
Geneva, 29 April-17 May 2001
Item 3 of the provisional agenda
SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF
THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Day of General Discussion on article 3 of the Covenant: equal right
of
men and women to the enjoyment of economic, social and
cultural
rights set forth in the ICESCR
Monday, 13 May 2002
RE/CONCEIVING THE HUMAN RIGHT TO HOUSING*
Background Paper submitted by Leilani Farha (BA, MSW,
LLB), the Women's Housing and Poverty Programme Manager and
Staff Lawyer at CERA - the Centre for Equality Rights in
Accommodation (Toronto, Canada).**
* Issued as submitted.
** The views expressed in the present document are those
of the author and do not necessarily reflect those of the
United Nations. Ms. L. Farha works, researchers and
publishes in the area of women's economic, social and cultural
rights, particularly on the rights to housing, land and
property.
GE.02-40546 (E) 200302
Introduction
The right to housing is one of the most
considered human rights in the International Covenant on Economic,
Social and Cultural Rights (hereinafter ICESCR).
Much of the foundational
analysis and work pertaining to this right was produced in the late
1980s through to the mid 1990s.
During this period, the United Nations
Committee on Economic, Social and Cultural Rights (hereinafter
"CESCR")
adopted two
General Comments on housing rights, and several resolutions
pertaining to this right were adopted by the United Nations Charter
based bodies: the Sub-Committee on the Protection and
Promotion of Human Rights,
the Commission on Human Rights
and the Commission on Human
Settlements.
Moreover, a Special Rapporteur on housing rights was
appointed
while a
number of articles, chapters, and expert meetings on different
aspects of the right to housing emerged during this
period.
From a women's human rights perspective this
period of activity on the right to adequate housing is marked by
two central characteristics. First, United Nations officials,
and human rights advocates - whether focused on economic,
social and cultural rights or women's rights - were reluctant to
include in their work a conceptualization of housing rights which
incorporated women's perspectives. Second, and perhaps as a
result, women's housing needs and experiences were not being
reflected in the "gender neutral" documents adopted by the United
Nations. In retrospect, this is not surprising given that, on
the one hand, the economic, social and cultural rights field was
and continues to be dominated by men, who only rarely demonstrate
an appreciation of women's experiences as they relate to human
rights. For instance, at no time has the 18-member CESCR had
more than three women members and the Committee's work has only
occasionally reflected a deep understanding of women's economic,
social and cultural rights.
Similarly, until recently, the housing
rights advocates working at the international level were
predominantly men, as were most of the economic, social and
cultural rights advocates who attended the CESCR
sessions.
In keeping with this, the bulk of the work and literature on
economic, social and cultural rights produced by
non-governmental organizations (hereinafter "NGOs") pays scant
attention to women's experiences in this field. On the
other hand, the women's human rights advocates at the
international level were principally concerned with and occupied
by the struggle to convince the international community that
women's rights are human rights. Focused on a cautious
agenda of engendering civil and political rights, these
advocates had little time or inclination to turn their attention
to economic, social and cultural rights, which were still
perceived as "second generation" rights, ill-defined and largely
injusticiable.
It was in this milieu that I first started
working to articulate and incorporate women's experiences and needs
at the domestic level into legal standards on the right to housing
at the international level. This work has been motivated by
the belief that for the human right to housing to be meaningful to
women it must be analysed and articulated from women's
perspectives. This paper provides an analysis of what this
means in both theory and practice. Part I highlights the
importance of incorporating a substantive understanding of women's
equality rights into the content of the right to housing. The
second part of the paper provides an overview of how the right to
adequate housing has been defined in international law, focusing on
the articulation of the right to housing and the constituent right
to be free from forced eviction as found in the CESCR's General
Comments 4 and 7, considered the foremost legal authority on these
rights. These articulations of the right to housing are then
analysed from the standpoint of women's experiences, concluding
with suggestions as to how the right to housing and to be free from
forced eviction might be defined if women were at the centre of its
development. The paper concludes with a modest suggestion
regarding the strategic way forward to ensure the international
human right to housing has meaning and resonance for women.
Part I. Discrimination, Equality Rights and Housing
Rights
In every realm - civil, cultural, economic,
political, legal and social - whether in private or public domains,
women experience structural discrimination and inequality.
This is particularly so with respect to housing. The gendered
construct of social and economic relations within and outside the
household means that women are discriminated against and experience
inequality in virtually every aspect of housing, be it access to
rental accommodation and credit and loans for homeownership, policy
development, control over household resources, prescribed household
roles, rights of inheritance or the construction of housing.
Therefore, a useful starting point to ensure that the rights found
in the ICESCR,
such
as the right to adequate housing, are meaningful to women is to
incorporate, within their content, rights to equality and to
non-discrimination based on sex.
This starting point was, in fact, contemplated by
the framers of the ICESCR and is reflected in its provisions.
The ICESCR contains complementary and interrelated articles dealing
with women's right to be free from discrimination
and the equal right of women to
the enjoyment of all rights contained in the
ICESCR.
The Covenant does not provide a definition of discrimination and
equality and the CESCR has yet to adopt a General Comment
to this effect. Until it does, these concepts are
best understood by reference to the authoritative pronouncements
of other international human rights bodies such as the United
Nations Human Rights' Committee (the HRC), which monitors
compliance with the ICCPR. Drawing on the HRC's
General
Comment 18,
it can be stated that discrimination and inequality occur when a
distinction, exclusion, restriction or preference based on any
enumerated ground in the ICESCR ‑ race, colour
,
sex, language, religion, political or other opinion,
national or social origins, property, birth or other status - is
made which has the effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal
footing, of the rights contained in the ICESCR.
Discrimination and inequality can occur in
different ways. The most obvious form of discrimination that
results in inequality is when a law, policy or practice blatantly
excludes or restricts a protected group or prefers and
distinguishes between people based on an enumerated ground.
In the housing field one of the most notorious laws falling into
this category of discrimination was the Group Areas Act
(1950) of Apartheid South Africa. On its face this law
segregated communities based on race and relegated the black
population to a minor percentage of the nation's land. The
language of the Act as well as its purpose and effect was
discriminatory. But Discrimination is not always this
blatant. In particular, discriminatory effects are often
obscured by the ostensibly non-discriminatory language of a law,
policy or practise. For example, with respect to
homeownership in Canada, a federal government housing corporation
and the main banks adhere to a "gender neutral" policy whereby the
insurance required for a house mortgage (when less than 25% of the
cost of the house is provided as a deposit) will only be provided
if the buyer will spend less than 32% of their income on
debt-servicing. While this may appear to be a neutral policy
in the sense that the 32% rule applies to all people who put down a
deposit of less than 25% of the cost of the house, in effect it is
not neutral because women are generally poorer than men and thus
more likely to require loan insurance and more likely to be
spending more than 32% of their income on debt
servicing. In this way, a policy that is
non-discriminatory in its language can still be regarded as
discriminatory because of its effects.
In the example of the 32% rule, the
discrimination arises not because women are treated differently in
the language of the rule but because they are situated differently
in the world in which the rule operates. If the different
situation of women was not taken into account in defining
discrimination and equality then women, not to mention other
disadvantaged groups, would only enjoy what has been called formal
equality. That is, they would be equal only in the sense that
they would be treated in the same way that men are treated.
To the extent that women and men are identically situated in the
world, being treated equally is, of course, important.
However, to the extent that women are situated differently in the
world and, in particular, are often disadvantageously situated, a
merely formal conceptualization of equality - treating women in the
same way that men are treated on the basis that men and women are
the same
- is
insufficient. Rather, "in those circumstances where women and
men are not identically situated, which is most of the
time"
a substantive conceptualization of
equality is necessary. Substantive equality recognizes
that equality is not a matter of "superficial sameness and
difference"
rather it is about the "accommodation
of differences".
It understands that women
as a group are disadvantaged, and that equality must address the
economic, social, legal and political dimensions of that group
disadvantage.
Consequently, adopting a substantive
conceptualization of equality means not only that inequality
exists when gender-neutral laws, policies or practices have
differential negative effects on women, but also that inequality
exists when the differential disadvantage of women is not
addressed by laws, policies or practices.
As a
result, substantive equality may require positive obligations on
behalf of States to address needs related to
disadvantage.
For example, for women's equality with respect to
home ownership to be realized in the face of the 32% rule,
outside of eliminating the rule, the government would be
required to undertake positive steps. These might include
establishing other homeownership programmes for women who cannot
meet the 32% rule, or they would be obliged to subsidize women's
debt servicing such that she would not be paying more than 32%
of her income on her mortgage and insurance.
Therefore, for the non-discrimination and
equality rights included in the ICESCR to have real-world
significance for women, the concepts of discrimination and equality
need to be conceptualized substantively, rather than merely
formally. If this is done, and if the right to housing is
conceptualized to encompass the rights to non-discrimination and to
equality, then the right to housing can be defined in a way that
underscores its applicability to women. In combination, these
conceptualizations provide a framework which requires a focus on
women's lived experiences and a consideration of women's economic,
social, legal and political position in its application.
Using this framework we can better understand, for example, how
discriminatory laws, policies, customs and tradition that prevent
women from inheriting housing, land and property and deny women
access to credit and loans necessary to secure and maintain
housing,
deprive
women of the right to housing.
Apart from rendering the right to housing more
responsive to the situation of women with respect to housing,
adoption of this framework also has the potential to force
governments to be more responsive to that situation. This is
because, according to international law, the discrimination and
equality rights provisions of the ICESCR (articles 2(2) and 3) are
not subject to progressive realization but must be implemented
immediately.
This means, therefore, that States Parties to the ICESCR have
obligations under articles 2(2) and 3 to
immediately respect
and protect and fulfill women's right to equality. Because
the denial of women's economic, social and cultural rights is
inextricably linked with discrimination against women and women's
inequality, this provides the CESCR with a legal foothold to have
violations of women's economic, social and cultural rights put at
the forefront of any review of a State party. It also
provides NGOs with a legal foothold to demand of their government's
the immediate implementation of women's economic, social and
cultural rights.
Part II. Is There a Woman in the Human
Right to
Adequate Housing ?
The principal codification of the international
right to adequate housing is contained in article 11(1) of the
ICESCR which states:
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 …
Although the right to housing appears in other
treaties, this
articulation is particularly important. Not only is the
ICESCR one of the three legal instruments contained in the
International Bill of Rights, but also the bulk of the work at
the international level pertaining to the right to housing has
been based on this articulation of the right. For example,
the United Nations Committee on Economic, Social and
Cultural Rights (CESCR) - responsible for examining the degree
to which countries that have ratified the ICESCR have undertaken
the implementation of the rights found therein - is the only
treaty monitoring body that has devoted significant attention to
articulating the content of the right to housing in its General
Comments. General Comment 4 is now recognized as the most
authoritative legal interpretation of the right to adequate
housing at the international level. General Comment 7 focuses on the practice of
forced eviction as a gross violation of human rights,
particularly housing rights. Of all the treaty monitoring
bodies, the CESCR has also shown the most sustained and explicit
commitment to the right to housing in its review of State party
compliance with the Covenant. This is reflected in a
number of the Committee's Concluding Observations which often
refer to the status of housing rights.
Though due attention has been paid to the right
to housing in international law, considerably less attention has
been devoted to the meaning of the right to housing for
women. Perhaps this is due - at least in part - to the
male-specific language of article 11 (1) which in one fell swoop
assumes that all women cohabit with men, rendering women's housing
rights invisible.
In its General Comment 4, the CESCR has attempted to
address this:
The right to adequate housing applies to everyone. While
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 limitation 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.
This paragraph indicates that the Committee recognizes that a
male-specific approach to housing rights is inappropriate and that
the right to housing extends to everyone, even women (or at least
female-headed households). A commitment to extending the
right to housing to everyone without discrimination is essential if
women are ever to enjoy the right. The implementation of this
commitment will determine the extent to which women are actually
able to claim the right to housing. In particular, and as
should be evident from the preceding section, it is crucial that
this commitment incorporate a substantive conceptualization of
equality. Unfortunately, the CESCR has had some
difficulty with the full implementation of this commitment in some
of its own work and, more specifically, has yet to explicitly
express a commitment to substantive equality in its interpretation
of the right to housing. A closer examination of the
Committee's interpretations of the right to housing in its General
Comments reveals the weaknesses in its approach from women's
perspectives.
General Comment 4
Overview
General Comment 4 attempts to adopt a
"gender-neutral" and de-contextualized approach to housing
rights. Except for the reference in paragraph 6 to "female
headed households", at no time does the Comment actually mention
women. The General Comment begins with an articulation of
some of the fundamental principles underlying the right. The
Committee indicates that the right to housing must be understood in
a broad sense to include more than just the right to four walls and
a roof, and should be understood as the right to live somewhere in
security, peace, and dignity.
The Comment also notes that the right to
housing is integrally linked to other human rights such as the
right to participate in public decision-making and the right not to
be subjected to arbitrary interference with one's privacy, family,
home or correspondence.
In keeping with the "inherent dignity of the
human person", housing rights should be ensured to all persons
irrespective of income or access to economic resources.
The heart of the Comment is the discussion of the
constituent elements of "adequate" housing: (a) legal
security of tenure; (b) availability of services, materials,
facilities, and infrastructure; (c) affordable; (d) habitable; (e)
accessibility; (f) location; and (g) culturally
adequate.
The Comment then suggests several ways in which governments
might meet their obligations to achieve the full realization of
the right to adequate housing. For example, governments
should adopt a national housing strategy,
and should engage in effective
monitoring to ascertain the full extent of homelessness and
inadequate housing and to provide detailed information about the
most vulnerable and disadvantaged with respect to housing, 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".
The Comment draws to a close by identifying
component elements of the right to adequate housing which are
consistent with the provision of domestic legal remedies,
highlighting in particular legal actions related to forced
evictions, discrimination in housing, inadequate housing conditions
and increased levels of homelessness.
On the topic of forced evictions,
the Committee states that "instances of forced evictions 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".
Analysis
One of the most striking features of General
Comment 4 is that despite its stated commitment to
non-discrimination and the extension of the right to housing to
everyone including women, the Comment fails to reflect and
incorporate this commitment in the articulation of other aspects of
the content of the right. This is not to say that the
articulated principles in the General Comment discriminate against
women or explicitly exclude women.
Rather, perhaps as a result of its
efforts to be universally applicable - and hence gender neutral and
de-contextual - the Comment appears to ignore women. The
exclusion of any direct references to women in the General Comment
is particularly surprising when considered in light of what the
Comment does say. For example, at paragraph 13, given the
overwhelming number of obstacles that prevent women as a group and
class from accessing housing as well as from adequate
housing,
and which
violate women's housing rights, it is startling that the framers
fail to include women as an overarching group as well as the most
disadvantaged group in the list of disadvantaged groups in the area
of housing. Similarly, though the Comment explicitly
refers to legal complaints against racial discrimination in housing
it fails to explicitly mention sex discrimination in the same
context.
While the Comment rightly proposes that the right to housing is
inextricably linked with other human rights, it fails to link
housing rights with rights that might be regarded as particularly
relevant to women, such as those contained in CEDAW for
example. It also fails to provide any analysis of the
complexities of this proposition for women. For example, the
Committee asserts that privacy rights are a very important
dimension in defining the right to housing, and yet for women the
privacy and sanctity of the home under human rights law can be used
to obscure the violence that women so often suffer
therein.
Even in the more detailed and specific aspects of
the General Comment, for example in the paragraphs dealing with the
seven elements required of "adequate" housing, women fail to make
an appearance.
For example, in its discussion of housing
affordability, the Comment suggests that States parties should establish
housing subsidies for those unable to obtain affordable housing,
without ever mentioning that these subsidies will be particularly
relevant for women who constitute the poorest in society and that
these subsidies must be allocated in a manner that does not
discriminate against women (as so often subsidy allocations do
because they are provided to the head of household who is presumed
to be male) and that gives priority to particular groups of women
in acute need. In its discussion of the
habitability
of housing, the Comment refers to the necessity that housing
protect people from the elements and that it protect the physical
safety of inhabitants. It fails, however, to consider the
mental health of inhabitants and related dangers that might
threaten the physical safety of occupants, such as domestic
violence. The Comment does not fare better in its definition
of
accessibility. Women are excluded from the list of
disadvantaged groups requiring special housing needs, in particular
resources for adequate housing.
Moreover, the very particular barriers to
accommodation experienced by women, due among other things to
women's poverty, discrimination against women in laws, policies,
customs and traditions, are not addressed at all.
Of course, it could be argued that the broad
principles of General Comment 4, in its present form, can be
interpreted so as to include women's experiences. Indeed,
some support for this argument exists in the Committee's emerging
willingness to examine women's housing conditions in its review of
State party compliance with the Covenant. In fact, they have
already taken some steps in this direction. A review of the
Committee's Concluding Observations over the last 5 years reveals
that the Committee has periodically criticized State parties under
articles 2 and 3 for discrimination against women in the housing
sphere.
Beyond this, on at least one occasion, the Committee has
demonstrated a willingness to examine a State party's compliance
with the right to adequate housing from women's perspectives.
In its review of Canada in November 1998, the Committee considered
women's particular housing and living conditions in its assessment
of Canada's compliance with article 11(1) of the ICESCR. In
their Concluding Observations the Committee states:
28. The Committee is
concerned that the significant reductions in provincial social
assistance programmes, the unavailability of affordable and
appropriate housing and widespread discrimination with respect to
housing create obstacles to women escaping domestic violence. Many
women are forced, as a result of those obstacles, to choose between
returning to or staying in a violent situation, on the one hand, or
homelessness and inadequate food and clothing for themselves and
their children, on the other …
Though this type of analysis does not commonly
appear in the Committee's Concluding Observations - in this case it
was the result of Canadian non-governmental organizations' lobbying
efforts - the Committee demonstrates that it is open to an
interpretation of the right to adequate housing that incorporates
women's substantive experiences of inequality in the housing
sphere. This openness suggests that women can look to the
ICESCR, and particularly article 11(1), for protection and
promotion of substantive equality with respect to housing. In
turn, it supports the argument that the shortcomings with respect
to women's experiences in the text of the General Comment do not
preclude attention to those experiences in applying that
text.
While this may be true, as previous experiences
in the human rights realm and elsewhere indicate, unless women's
experiences are named and unless principles and rights are
articulated in a way that address women's specific experiences,
women will remain invisible, their human rights illusory. In
other words, laws and legal interpretations such as this General
Comment must be specific and explicit with respect to women's
experiences and needs if claiming the right to housing is to be an
effective recourse for women.
For the right to housing to take on real
relevance for women, however, it may be necessary to move beyond
the confines of General Comment 4 to a re-formulation of the
fundamental principles informing housing rights where women are at
its centre. Given the importance of housing in women's lives,
the distinctive relationship between women and housing,
and the fact that for many
women worldwide housing is the only sphere in which they interact,
placing women at the centre of an understanding of housing rights
makes good sense. The effect of doing so forces a shift in
the basic principles underlying the right to housing. This is
not to say that those principles articulated in the General Comment
4 would be rendered irrelevant, but rather they would have to be
further contextualized by women's lives. At the same time,
new principles would emerge. The division of labour and its
bearing on women's relationship to housing would have to be
acknowledged. Women's experiences of violence in the home
would undoubtedly inform the general principles as well as the
"adequacy" requirements of the Comment. The many barriers to
accessing and maintaining accommodation faced by women would be
challenged. The relationship between women's poverty and
women's housing would be acknowledged and a housing rights
principle would be developed to address it.
As it stands, there is only a remote chance that
in the near future the Committee on Economic, Social and Cultural
Rights will re-write General Comment 4 to better reflect women's
experiences and needs, especially since they have yet to adopt a
General Comment on Women and the ICESCR. And so, in the
immediate future we can encourage the CESCR to infuse their current
understanding of the right to adequate housing with an
understanding of substantive equality and thus women's actual
experiences. To assist in imagining how the General Comment
could be read if it were to be more relevant to women, the table in
Appendix A reformulates elements of adequacy using women's
experiences.
Forced Eviction: General Comment 7
Overview
The right to be free from forced eviction has
emerged as one of the central tenets of the right to housing.
Since the early 1990s the CESCR has devoted a substantial amount of
time and energy on this issue. General Comment 4 refers
extensively to the issue of forced evictions, identifying security
of tenure as the cornerstone of the right to adequate housing and
declaring that forced evictions are prima facie incompatible with
housing rights. On a number of occasions the CESCR has also
issued letters of concern urging State parties to re-consider
carrying out planned forced evictions
and the CESCR has consistently
investigated allegations of pending or past forced evictions in its
reviews of State parties.
In fact, on two occasions, the CESCR visited
countries where forced eviction was identified as an acute
problem, in an effort to encourage the State parties in question
to comply with the ICESCR.
In keeping with this commitment to
curtailing the practice of forced evictions, in June 1997, the
CESCR adopted General Comment 7 on forced evictions.
In international law, the practice of forced
eviction has been defined to refer most commonly to instances where
masses of people are involuntarily removed from their homes or
lands as a result of: development projects, city beautification
projects, occupation, and armed conflicts, internal strife or
war. For example, in the slums of Bangkok, Thailand, an
average of 5 demolitions occur each month, as a means of "cleaning"
the streets. In a number of countries such as Turkey, Burma
and Palestine, homes of minority populations are regularly
demolished by occupying powers as a means of controlling land and
power. And across parts of Africa and
south Asia, large-scale hydro-electrical and other dam projects
continue to result in the forcible eviction of hundreds of
thousands of dwellers, commonly indigenous peoples. With
these types of evictions in mind, the CESCR's General Comment 7
defines forced evictions as follows:
[T]he 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
prohibition on forced evictions does not, however, apply to
evictions carried out by force in accordance with the law and in
conformity with the provisions of the International Human Rights
Covenants.
As in the case of General Comment 4 on housing rights, General
Comment 7 notes that forced evictions frequently violate other
human rights, such as the right to life, the right to security of
the person, the right to non-interference with privacy and family
and home and the right to the peaceful enjoyment of
possessions.
Much of the work on forced evictions at the
international level has focused on a determination of the
procedures and measures that should be required by human rights law
at all stages of the forced eviction process, an issue discussed in
General Comment 7. As a starting point, the CESCR asserts that the
State must refrain from forced evictions and ensure that the law is
enforced against its agents or third parties who carry out forced
evictions.
To
this end, States must ensure they have enacted legislation against
forced evictions. This legislation should include measures
providing the greatest legal security of tenure to occupiers of
houses and land and should restrict and control the circumstances
under which evictions may be carried out.
General Comment 7 also outlines a number of
requirements that States must meet prior to an eviction, such as
exploring all feasible alternatives in consultation with those
potentially affected (especially in the case of large scale
evictions).
In the event that forced eviction is deemed absolutely necessary,
the CESCR calls on State parties to ensure appropriate procedural
protection and due process for those affected. The CESCR also
stipulates that forced eviction should never result in rendering
people homeless or vulnerable to violations of other human
rights. Where those affected cannot provide for themselves,
State parties must take all appropriate measures to ensure that
adequate alternative housing or resettlement is
available.
And then, to ensure that State parties are meeting their
obligations regarding forced evictions under the ICESCR, the
CESCR asks State parties when reporting to the Committee to
provide them with information pertaining directly to the
practice of forced evictions, such as the number of persons
evicted within the last five years and the number of persons
currently lacking legal protection against arbitrary eviction or
any other kind of eviction and any legislation relating to
forced evictions.
Analysis
In documents pertaining to forced eviction, it is
not uncommon to read that women are the most affected by this
practice. For example, General Comment 7 states, "[w]omen,
children, youth, older persons, indigenous people, ethnic and other
minorities, and other vulnerable individuals and groups all suffer
disproportionately from the practice of forced eviction
…".
Despite this admission, the right to be protected against forced
eviction has evolved at the international level with little
attention to women's experiences and roles in resisting and coping
with this practice.
Insight into this exclusion was first gleaned in
exploratory discussions with colleagues about the idea that
domestic violence could be understood as a form of forced
eviction. This idea was repeatedly met with hostility.
Some argued that the coercion to leave the home experienced by
women in situations domestic violence is not sufficient to
constitute forced eviction, and others relied on traditional
(and outdated) legal arguments that international human rights law
cannot reach into the private realm of the home.
The male‑centric view of the right to be
free from forced evictions has meant that causes of eviction that
are unique to women - domestic violence, discriminatory ownership
and inheritance laws, customs and traditions, and cutbacks to
social assistance entitlements all of which can result in women
involuntarily leaving their homes - have yet to be explicitly
identified as falling within the ambit of forced eviction under
international human rights law. General Comment 7 takes a
step in this direction. At paragraph 10 it
states:
… Women in all groups are especially vulnerable given the
extent of statutory and other forms of discrimination which often
apply in relation to property rights (including home ownership) or
rights of access to property or accommodation, and their particular
vulnerability to acts of violence and sexual abuse when they are
rendered homeless. The non-discrimination provisions of articles
2.2 and 3 of the Covenant impose an additional obligation upon
Governments to ensure that, where evictions do occur, appropriate
measures are taken to ensure that no form of discrimination is
involved.
This reference to ownership laws, customs and traditions
pertaining to inheritance, however, is mentioned almost in passing
and coupled with a comment on the violence women are exposed to in
the post eviction context, failing to mention the violence within
the home that forces the eviction of so many women.
- The recognition that women suffer disproportionately from the
practice of forced eviction is not translated or reflected in any
other part of the General Comment. For example, in its
discussion of those instances where eviction is considered to be
justified, the Committee draws on Article 17 of the International
Covenant on Civil and Political Rights (ICCPR) and its General
Comment 16 which states that interference with a person's home can
only take place "in cases envisaged by the law". The protection of the home
from outside forces or agents is a complicated issue from women's
perspectives. On the one hand, such protection is important
to women, especially during situations of armed conflict. At
the same time, as discussed previously, the protection of the home
or its insulation from public view, can create conditions that
allow household violence to flourish. Moreover, in many
instances those who might in other circumstances "protect" the home
are the very persons who pose a threat to women's physical security
and bodily integrity, particularly during armed conflict.
- Of course, these critiques of the development of the law on
forced eviction are limited because they merely insert women into
an existing framework. What happens to our understanding of
forced eviction if we move away from women's particularity and
place women at the very centre of a discussion on forced
eviction? In a list-serve discussion on women and forced
eviction one subscriber suggested that if we focus on what is
distinct or particular to women, there is a presupposition
that
forced eviction is an attack on "the community", and usually a
fight between men, with the home and often the woman herself seen
as male property to be destroyed. In this scenario, the woman
is at best an adjunct to men or else something that just happens to
be in the way in a struggle between men and their categories of
importance eg. Wealth, status, ethnicity, religion. In this
view, forced eviction is just one more area of struggle and
violation that affects "all people" (for which we can read "the
community with a male political face"), and gender is relegated to
something "particular", a subset of experience within a greater and
somehow "neutral" whole.
Of course, one might ask, why should the group
"women" be at the centre of an analysis or discussion of the
practice of forced eviction, rather than all those affected
including children, older persons and men? The answer lies in an
understanding of the practice itself. To begin, forced
eviction does not happen on a whim; it is a strategic practice, one
that likely has women as its aim and as a focus. As is
obvious, forced eviction most often targets the home which, as
discussed earlier, for many women is the primary site of their
existence. Is it by mere chance that a violent practice aimed
squarely at the home has emerged as a weapon in war and development
or has the fact that the home is such a vulnerable site - because
it is women's site - informed the evolution of this practice?
Similarly, what can be made of the fact that in many regions forced
evictions are carried out in the middle of the day when most men
are at work and women are alone at home with their
children?
The subscriber to the Eviction Women list serve provides an
eloquent synthesis of these thoughts:
… what happens when you stop looking at forced eviction as
an outrage or merely happenstance and instead consider that in
forced eviction everything is going perfectly right, as planned and
desired by someone. From this perspective, gender becomes
entirely central, and even generative. That is, gender
actually produces an impetus for forced eviction.
As I read [the] piece about Burma, my mind kept coming back to
the image of the woman cowering in her home, waiting alone or with
her children for "her turn". Why, I asked myself, are the men
not there too; where are they able to go that the women are
not? And why, I asked myself, are the women unarmed?
Yes, I am taking the radical step of suggesting that women are
the focus of forced eviction, and that traditional gender
organization makes forced eviction more likely as a strategy of
aggression. Gender organization, in other words, shapes and
determines the manifestations of power. It is difficult for
us to see this because imbalanced gender relations are so universal
and long-standing that we overlook how productive and active they
continue to be: instead, we see women as the (mere) victims of the
aggression.
If the enemy conceives of you as the man's property, and, if a
single woman, then as of no importance, this does not mean his
fight is with the man only. Instead, what it means is that he
is aware of, understands, and reinforces your gender status.
His strategy is entirely cognizant of your gender status and/or the
way in which your violation will humiliate your male "owner".
This fact does not make you peripheral; rather, it makes you, to
repeat, absolutely central.
The same analysis applies if the violation is to the physical
structure of the home; by depriving the man of the physical
structure for the institutionalization of his marriage and thereby
his relation to you, you are not peripheral or particular to this
drama, but central.
Similarly, if you are a woman bringing up your children on your
own, your status as such draws the enemy to you and encourages the
phenomenon of forced eviction.
Some may argue that this emphasis on women seems paranoid and
self-important. However, it is only paranoid and
self-important if you accept the idea of women's "particularity"
and therefore relative unimportance. I am suggesting that
women only function as particularity, as a subset, but that that
function is, however, crucial to the social dis/order and to all
manifestations of power.
I am attempting in this analysis to reinforce gender as a
primary structure underlying oppression and social phenomena and
determining their shape and form. It is disturbing to me that
we have to find what is "particular" and "distinct" to women in a
strategy so rooted in familial and gender organization.
Conclusion
This excerpt is an appropriate place to close as
it is raises both provocative and essential issues that must be
considered in any effort to engender human rights. It
suggests that in order for the right to housing and other economic,
social and cultural rights to be meaningful to women, in the long
run, we cannot simply return to existing international
jurisprudence and insert women or women's experiences because the
very premises upon which most of these documents are based ignore
the broader social organization and order
, and women's
position within that organization/order. And so, ours is an
uphill struggle: to re-conceive housing rights and other economic,
social and cultural rights in a way that both recognizes and
challenges
dominant social orders and gender roles. This task is that
much more difficult in light of the fact that this work needs to be
done in the here and now, when the social order and gender roles we
aim to challenge remain in tact, all around us, everywhere.
Using substantive equality to understand the right to housing as it
pertains to women, would go some distance in ensuring that women's
structural and systemic disadvantage with respect to housing is
both recognized and
addressed .
Notes
As found in: Human Rights: A Compilation of
International Instruments, Vol. I, First Part, (New York and
Geneva: United Nations, 1994) at 8. Adopted and opened for
signature, ratification and accession by General Assembly
resolution 2200 A (XXI) of 16 December 1966, Entry Into Force: 3
January 1976, in accordance with article 27.
See: David Hulchanski and Scott Leckie, Chronology of
Housing Rights (Netherlands: Centre On Housing Rights and
Evictions, 2000).
The CESCR is responsible for monitoring State Party
compliance with the ICESCR. The Committee also adopts legal
interpretations of the provisions of the ICESCR in the form of
"General Comments".
For example, Resolution 1995/27, "Promoting the
realization of the human right to adequate housing" (August,
1995), Resolution 1994/8, "Children and the right to adequate
housing" (August, 1994), Resolution 1993/36, "The Right to
Adequate Housing" (August 1993), Resolution 1992/26,
"Promoting the Realization of the Right to Adequate Housing"
(August 1992).
Resolution 1988/24, "The Realization of the Right to
Adequate Housing" (March 1988).
Resolution 16/7, "The realization of the human right
to adequate housing" (May 1997), Resolution 14/6, "The Human Right
to Adequate Housing" (May 1993); Resolution 1988/24, "The
Realization of the Right to Adequate Housing" (March
1988).
The first Special Rapporteur on housing rights was
appointed in 1992 by the Sub-Commission and the Promotion and
Protection of Human Rights (Resolution 1992/26) and endorsed by the
Commission on Human Rights in 1993 (Resolution 1993/103). His
mandate extended until 1995. The Commission on Human
Rights recently appointed a Special Rapporteur on Housing Rights as
well, see: Resolution 2000/9, "Question of the realization in
all countries of the economic, social and cultural rights contained
in the Universal Declaration of Human Rights and in the
International Covenant on Economic, Social and Cultural Rights, and
study of special problems which the developing countries face in
their efforts to achieve these human rights".
For a list of publications on the right to adequate
housing see: Centre on Housing Rights and Evictions, Sources 2:
Bibliography on Housing Rights and Forced Evictions, 2d ed.
(Netherlands: Centre on Housing Rights and Evictions,
2001).
The number of women on the Committee now stands at two,
representing 11% of the only international body charged with
monitoring State implementation of economic, social and cultural
rights. In its Concluding Observations on State Parties'
compliance with the ICESCR, the Committee has attempted to address
women's experiences, but this appears to occur in more of an ad hoc
rather than systematic fashion. See: Marsha Freeman,
Equality and Rights: The International Covenant on Economic,
Social and Cultural Rights, Article 3, Background Paper for the
Proposed General Comment on ICESCR Article 3 (unpublished, on
file with author, 2001).
The CESCR meets twice or three times annually (April,
November and sometimes in August) to review State Party compliance
with the ICESCR, to adopt General Comments and to discuss
particular issues of relevance to the Committee.
The ICESCR codifies the rights to: work and associated
trade union rights, social security, family protection, adequate
standard of living, housing, food, health, education and
culture.
Article 2(2) states:
The States Parties to the present Covenant undertake to
guarantee that the rights enunciated in the present Covenant will
be exercised without discrimination of any kind as to race, colour,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Article 3 states:
The States Parties to the present Covenant undertake to ensure
the equal right of men and women to the enjoyment of all economic,
social and cultural rights set forth in the present Covenant.
The interrelatedness of Articles 2(2) and 3 of the Covenant is
derived from the fact that to discriminate is to treat people
unequally. That these concepts are two-sides of the same coin
is reflected in national constitutions and jurisprudence. For
example, under the heading "Equality Rights", the Canadian
Charter of Rights and Freedoms states at section 15 (1):
Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
Human Rights Committee, General Comment 18 (1989),
Non-Discrimination, HRI/GEN/1/Rev.3 (1997) at par.
29.
Formal equality is understood to work in situations where
women want to be treated "the same" as men, such as with respect to
the right to hold title to land and property, or the right to
vote.
Shelagh
Day and Gwen Brodsky, Women and the Equality Deficit: The Impact
of Restructuring Canada's Social Programs, (Ottawa: Status of
Women Canada, 1998) at 43.
Gwen Brodsky and Shelagh Day, "Women's Economic
Inequality and the Canadian Human Rights Act" in Women and the
Canadian Human Rights Act: A Collection of Policy Research
Reports (Ottawa: Status of Women Canada, 1999) 113 at
135.
Andrews v. Law Society of British Columbia,
[1989]1 S.C.R. 143 as cited in Martha Jackman and Bruce Porter,
"Women's Substantive Equality and the Protection of Social and
Economic Rights Under the Canadian Human Rights Act" in Women
and the Canadian Human Rights Act, supra note 18, 43 at
56.
Shelagh Day and Gwen Brodsky, Women and the Equality
Deficit, supra note 17 at 45.
Martha Jackman and Bruce Porter, supra note 19 at
56.
This may be because women, unlike men, are considered
minors and require a male relative's consent for loan approval or
it may because women's income is too low for a lending agent to be
willing to guarantee the loan.
Maastricht Guidelines on Violations of Economic,
Social and Cultural
Rights, 22-26 January, 1997 at 1 as at:
<www.laaw.uu.nl/english/sim/instr/maastricht.asp>
The right to housing is also codified in: The
International Convention on the Rights of the Child (art. 27 (3));
The International Convention on the Elimination of All Forms of
Discrimination Against Women (art. 14 (2) (h)); and The
International Convention on the Elimination of All Forms of Racial
Discrimination (Article 5 (e) (iii)).
Committee on Economic, Social and Cultural Rights,
General Comment 4, U.N. Doc. E/C.12/1991/4 (1991).
Committee on Economic, Social and Cultural Rights, Gen
Comment 7, U.N. Doc. E/C.12/1997/4 (1997). See, for
example, excerpts of the Committee on Economic, Social and Cultural
Rights' Concluding Observations on: Canada (1993 & 1998),
Panama (1991), Philippines (1995), Nigeria (1998), and Dominican
Republic (1994, 1996 & 1997) in Centre on Housing Rights and
Evictions, Sources 3: Forced Evictions and Human Rights, A
Manual for Action (Netherlands: Centre on Housing Rights and
Evictions, 2d ed., 1999) at 16.
Pamela Sayne, "Ideology as Law: Is There Room for
Difference in the Right to Housing?" in Hemalata Dandekar ed.,
Shelter Women and Development First and Third World
Perspectives (1992) 97, 99-100. See also, Pamela Sayne,
Housing Language, Housing Reality? 11(2) Canadian Women
Studies (1990).
General Comment 4, supra note 25 at par.
6.
Ibid., at par. 12. According to this paragraph, a
national housing 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 necessary measures. 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.
In fact, after an analysis of women's housing experiences
and needs it might be agreed that at least some of the principles
articulated in General Comment 4 are essential to women's housing
rights.
For an overview of some of these barriers see: Leilani
Farha, "Women and Housing" in Kelly Askin and D. Koenig, eds.,
Women and International Human Rights Law, Vol.1, (New York:
Transnational Publishers, 1999) 483.
See for example, General Comment 4, supra note 25
at par. 17(c).
See Appenidx for a chart listing the seven requirements
of "adequate housing", the definition as it appears in the General
Comment 4 and the elements omitted from women's
perspectives.
General Comment 4, supra note 25 at par. 8 (c)
states:
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 from unreasonable rent levels or rent
increases by appropriate means. 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.
Ibid. at par 8 (e) which states:
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.
See for example the Committee's Concluding Observations
on Cameroon, U.N. Doc. E/C.12/1/Add.40 (1999).
UN Doc. E/C.12/1/Add.31 (1998).
Jane Darke, "Women and the Meaning of Home" in Rose
Gilroy and Roberta Woods eds., Housing Women (London:
Routledge, 1994) 11 at 11.
For a reformulation of all of the elements of adequacy
see Appendix.
For example, such letters have been issued to: Israel,
Nigeria, Dominican Republic, and Philippines.
For example, Korea, Philippines, Dominican Republic,
Panama, and Israel.
The Committee has visited, for example, Panama and the
Dominican Republic.
Committee on Economic, Social and Cultural Rights,
General Comment 7, supra note 26.
Ibid., at par. 4. Other definitions of
forced eviction in international legal documents are not limited by
the phrase "without the provision of, and access to, appropriate
forms of legal or other protection". See for example, UN Fact
Sheet No. 25 on Forced Evictions which states: "The practice of
forced eviction involves the involuntary removal of persons from
their homes or land, directly or indirectly attributable to the
State" available on:
<www.unhchr.ch/html/menu6/2/fs25.htm>. Also, the
definition in the Comprehensive Human Rights Guidelines on
Development-Based Displacement, UN Doc. E/CN.4/Sub.2/1997/7,
provides the following definition:
[A]cts and/or omissions involving the coerced and involuntary
removal of individuals , groups and communities from their homes
and/or lands and common property resources they occupy or are
dependent upon, thus eliminating or limiting the possibility of an
individual, group or community residing or working in a particular
dwelling, residence or place.
Gen Comment 7, supra note 26 at par. 5.
Ibid., at par. 21, drawing on UN Doc.
E.C.12/1990/8, Annex IV, Committee on Economic, Social and Cultural
Rights Revised Reporting Guidelines for State Parties.
General Comment 7, supra note 26 at par. 10.
It is questionable whether it is appropriate to list women
alongside children, youth, older persons because, as discussed
below, there is reason to believe that women suffer more than any
other group and bear disproportionate responsibility for the
effects of forced eviction on family matters.
This General Comment was being negotiated when I first
started working on women's housing rights at the international
level, in 1997. I did speak with several members of the CESCR
about including a reference to domestic violence somewhere in the
Comment and even provided suggested text. This suggestion was
not taken-up.
As cited in General Comment 7, supra note 26 at
par. 16.
Darya Farha, Eviction Women List-Serve
correspondence (27 October 2000, on file with author). The
Eviction Women list serve was hosted for 8 weeks in 2000. It
was co-sponsored by the Women's Housing Rights Programme at the
Centre on Housing Rights and Evictions and the University of
Toronto, Faculty of Law, Women's Human Rights Resources.
SERAC, "Women and Forced Eviction in Nigeria"
(forthcoming, 2001, on file with author).
