A tiny step closer to an enforceable right to housing
With Uruguay ratifying the Optional Protocol of the International Covenant of Economic, Social and Cultural Rights (ICESCR), the residents of ten countries will soon have a right to adequate housing somewhat enforceable under international law.
Kerwin Datu
Last week we moved a tiny step closer to an enforceable right to housing, though we've still got a mile to go. In the eloquent prose of the United Nations, the step we took was this: "After crossing the required threshold of state ratifications on Tuesday, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights will enter into force on 5 May."
UN High Commissioner for Human Rights Navi Pillay tried to explain what this means: "the Protocol will provide an important platform to expose abuses linked to poverty, discrimination and neglect, which up until now victims have had to endure without any possible recourse at the international level. It will provide a way for individuals, who may otherwise be isolated and powerless, to make the international community aware of their situation."
Allow me to explain a bit further. The right to adequate housing (as well as rights to health, education and many other life necessities) became part of international law through a treaty called the International Covenant on Economic, Social and Cultural Rights (ICESCR), which entered into force in 1966 and currently applies to the 160 countries that have ratified or acceded to the treaty. Notable exceptions are Saudi Arabia, Myanmar, Malaysia, Botswana and Mozambique; the United States, Cuba and South Africa and a few others have signed but not ratified the convention. As I explained when Lagos breached the covenant in Makoko last year, "instances of forced eviction are prima facie incompatible with the requirements of the Covenant" according to the Committee on Economic, Social and Cultural Rights (CESCR) that supervises the treaty.
The Protocol will provide an important platform to expose abuses linked to poverty, discrimination and neglect, which up until now victims have had to endure without any possible recourse at the international level. It will provide a way for individuals, who may otherwise be isolated and powerless, to make the international community aware of their situation.
But for nearly fifty years there has been no way to legally enforce the rights laid down in the ICESCR. So, since 1990, the CESCR began developing an optional protocol that set out an enforcement mechanism, which was adopted by the UN General Assembly in 2008 and began accepting signatures the following year. The protocol empowers the committee to receive "communications" from "individuals or groups of individuals … claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant". On the basis of those individual communications the committee may launch an inquiry into the relevant national government, hold hearings, report its findings (known as "views") as to whether the government has breached its obligations, and make comments and recommendations on how to bring itself back into compliance. National governments may also raise complaints about other national governments to the committee.
This brings the CESCR closer in line with the UN Human Rights Committee, which oversees the International Covenant on Civil and Political Rights (ICCPR), containing such rights as the right to a fair trial and freedom from arbitrary arrest. While the views of such committees are not legally binding, they are vital sources of soft power, used by civil society organisations and the media at national and international levels to force governments to respond in various ways, including providing compensation to victims or enacting legislative amendments to prevent future breaches.
This means that communities threatened with forced eviction or lacking basic urban services can now put their case to the CESCR and reasonably hope to elicit a constructive response from their national governments.
But how many can do so?
From a global perspective however, very little will change soon. No complaint will be accepted unless "all available domestic remedies have been exhausted", unless the committee believes those domestic processes have been "unreasonably prolonged". For most communities under threat, the damage will have been done, livelihoods destroyed, etc., long before a case will come before the committee. But also, the protocol is coming into force in May only because the barest legal minimum of 10 countries have now ratified the protocol: Ecuador, Mongolia, Spain, El Salvador, Argentina, Bolivia, Bosnia and Herzegovina, Slovakia, Portugal and now Uruguay. Only these countries' citizens will have access to the committee. There is still no enforcement mechanism for the citizens of the other 32 countries whose leaders have signed but not ratified the protocol, nor indeed of the 128 countries that have ratified the covenant but failed even to sign the protocol. Not to mention Myanmar, the United States, South Africa and their fellows.
While the views of such committees are not legally binding, they are vital sources of soft power, used by civil society organisations and the media at national and international levels to force governments to respond in various ways, including providing compensation to victims or enacting legislative amendments to prevent future breaches.
This means that for the overwhelming majority of the world's residents who live without adequate housing, nor indeed adequate health, education and other services, last week's events were largely symbolic. But there is power in symbolism, and civil society organisations in other countries can now point to the real opportunities for justice to which the citizens of the 10 ratifying countries will soon have access to pressure their governments to sign and ratify the protocol, and to plead for their local judiciaries to take their governments' international obligations into account in domestic hearings. It's now up to civil society and the broader media to start mounting that pressure.
