Seminar "Living on Wheels"
organized by UNIA and Minderheden Forum at the Flemish Parliament
Brussels, 4 November 2019
"Travellers and the right to housing from an international human rights perspective"
Statement by Birgit Van Hout
Regional Representative for Europe
UN Human Rights Office (OHCHR)
Distinguished Members of Parliament, Ladies and gentlemen,
I thank you for the invitation to present the right to housing from an international human rights perspective. I am very pleased that today’s meeting takes place in the Flemish Parliament, since the Flemish community holds the competence for most economic and social rights.
Our office offers its constructive support to the Flemish Parliament, the executive and the administration for the implementation of these rights in a manner that is compliant with international human rights law, because, as you know, even though the international treaties are signed and ratified at the federal level, the legal obligations deriving there from bind authorities at sub-national and even local level.
First enunciated in article 25 of the Universal Declaration of Human Rights 71 years ago, the right to adequate housing was further codified in international human rights treaties, in particular article 11 of the International Covenant on Economic, Social, and Cultural Rights, but also article 14 of the Convention for the Elimination of All Forms of Discrimination against Women, 27 of the Convention on the Rights of the Child, and article 5 of the Convention for the Elimination of All Forms of Racial Discrimination.
Belgium is a party to all these treaties, and should be commended for reporting periodically, in a timely manner, to the UN treaty monitoring bodies on progress in the implementation of these treaties. The treaty bodies have interpreted the right to housing broadly as the right to live somewhere in security, peace and dignity.
For the State, which we call the "duty-bearer" under international law, human rights create both positive obligations -- to do something -- and negative obligations -- to refrain from actions that may hamper the realisation of this human right. Because Belgium has ratified the above-mentioned treaties, the authorities have committed to respect, protect and fulfil the right to adequate housing.
What this means has been explained by the UN Committee on Economic, Social and Cultural Rights in its general comments four (1991) and seven (1997).
The "obligation to respect" means that States must refrain from interfering with or curtailing the enjoyment of human rights. Specifically, for the right to housing, it means that
- A person has the right to choose her or his own residence, to determine where to live and enjoy freedom of movement
- There should be no arbitrary interference with one’s home, privacy and family, and
- Every person must be protected against forced evictions and the arbitrary destruction and demolition of one’s home.
The "obligation to protect" requires the State to protect individuals and groups against human rights abuses by third parties.
The "obligation to fulfil" means that States must make efforts to facilitate the enjoyment of the right to housing by all. When it comes to the realization of economic and social rights, the State may not be able to realize these rights overnight, as some economic and social rights may carry a financial cost for the State, but the duty-bearer must demonstrate a good-faith effort to dedicate the maximum available resources to enable people to realize their rights.
The State must also demonstrate the absence of discrimination in accessing these rights. The treaty bodies have developed the AAAQ framework, which allows us to measure to what extent people are able to enjoy their economic, social and cultural rights - AAAQ stands for Availability, Accessibility, Acceptability and Quality of the right. In case of social housing, for example, this housing must be of good quality, accessible, available, acceptable and allocated without discrimination.
For the right to housing, the Committee on economic, social and cultural rights further requires security of tenure and the possibility for people to participate in housing-related decision-making at national and local level.
The Committee also considers protection against forced evictions a key element of the right to adequate housing, and this is closely linked to security of tenure. In fact, States have an obligation to provide all persons, regardless of their type of tenure, a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.
There is no absolute prohibition of forced eviction under international law. But, since forced evictions limit the established right to housing, the general principle requires that limitations or exceptions to the right are interpreted strictly. Thus, a forced eviction should be an exceptional measure of last resort carried out in exceptional circumstances, after all feasible alternatives have been explored.
Concretely, forced evictions require procedural guarantees and certain safeguards to be put in place. The procedural guarantees required include:
- Genuine consultation with the persons who are going to be evicted
- Adequate information on the justification of the forced eviction
- Reasonable notice of the proposed eviction
- The presence of Government officials or their representatives and monitoring of the eviction
- The proper identification of persons carrying out the eviction
- The prohibition of carrying out evictions in bad weather or at night
- Availability of legal remedies
- Availability of legal aid to the evicted.
In terms of safeguards required, international law requires that evictions can only be carried out if alternative adequate housing is provided and resettlement sites are ready.
Conversely, therefore, if a forced eviction leads to homelessness or compounds an already existing situation of vulnerability, it is likely that the Committee on Economic, Social and Cultural Rights would consider a forced eviction a violation of human rights, as we have seen in the case MBD v Spain (CESCR Communication No. 5/2015).
In this context, I would like to highlight the particular vulnerability of children. In the Convention on the Rights of the Child, States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. For children, a lack of adequate housing, as well as the fear of eviction or having experienced a forced eviction not only affects their right to housing, but a whole range of other human rights, like the right to health and personal security and the right to education. So, let's say that a forced eviction takes place and alternative housing is being provided, but far away from school or difficult to get to school, the UN Committee on the Rights of the Child might deem that the rights of the child have been violated even if alternative housing has been provided.
The marginalization of Traveller communities in Europe is well documented and was acknowledged by States themselves at the 2001 World Conference against Racism in Durban, South Africa. Because of their itinerant lifestyle, a lack of adequate accommodation and authorized transit, Traveller communities have been vulnerable to forced evictions which have in many instances aggravated their already precarious situation.
In 2016, the UN Committee on the Elimination of Racial Discrimination, in its concluding observations on Belgium, expressed concern over discrimination against Travellers in Belgium with regard to access to housing due, inter alia, to their intermittent residence, and their difficulties in registering as residents of municipalities, which in turn prevents them from having valid identification papers and accessing social services and benefits as Belgian nationals.
Following operation Strike of 7 May 2019 in Belgium, which also concerned a group of Travellers, the UN Special Rapporteurs on the right of housing, the right to health, minority issues, and contemporary forms of racism, racial discrimination, xenophobia and related intolerance, expressed concern over the possibility of a human rights violation.
I would like to end with the general principle of the interdependence, indivisibility and interrelatedness of all human rights, whether civil and political, or economic, social and cultural rights. When a person is not able to access or enjoy the right the right to adequate housing, this usually affects a whole range of other human rights and vice versa, like the right to water and sanitation, to work, health, social security, etcetera. In 2015, States pledged in the Sustainable Development Agenda to "leave no one behind" and to start with facilitate the development of those groups who are most behind first.
This leads us to the question of inclusion. More and more often, we hear people questioning "why do certain groups, like the Travellers, need special treatment?" I think it is important to clarify that we are not talking about creating special rights for certain groups or any privileged treatment. This is merely about creating an enabling environment for all persons to access and enjoy their human rights in an equal manner. This is not only in the interest of those who are "behind"; we believe it is in the interest of society as a whole that everyone feels included and feels they can belong.
But achieving human rights does not necessarily mean applying the same measures to everybody as we may have different starting points. Equality does not mean treating everybody in a identical manner. In fact, sometimes good faith measures that treat people who are not in the same situation in the same manner can unwittingly amount to discrimination. A differential treatment may be necessary to create a level playing field. As the UN mechanisms have shown, such special measures do not constitute a human rights violation, but rather a means to accelerate the realization of the promise that the Universal Declaration of Human Rights holds. And this is the power that the Flemish authorities hold.