Protection of the Human Right to Adequate Housing in International Law and Policy
The body of international human rights law, originating from the United Nations (UN), consists of several human rights treaties. The following are specific legal provisions in international law that guarantee the human right to adequate housing, and thereby provide protection against forced evictions:
Article 21:
As regards housing, the Contracting States, insofar as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.
Article 5:
(…) to prohibit and eliminate racial discrimination in all of its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of … (e) … (iii) the right to housing.
Article 11.1:
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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
Article 17:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Article 14.2:
States Parties shall undertake all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right … (h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.
Article 16.1:
No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
Article 27.3:
States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
Article 43 (1) (d):
Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to … (d) Access to housing, including social housing schemes, and protection against exploitation in respect of rents.
Article 5.3:
In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
Article 9.1 (a):
To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, (…). These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: … (a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces.
Article 19 (a):
States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.
Article 22.1:
No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.
Article 28.1:
States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.
Article 28.2 (d):
States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: … (d) To ensure access by persons with disabilities to public housing programmes.
Several UN conventions, declarations, guidelines, and outcome documents of international conferences also contain provisions that protect the human rights to adequate housing, land and property. These include:
- International Labour Organization (ILO) Convention No. 110 Concerning Conditions of Employment of Plantation Workers (1958);
- Declaration of the Rights of the Child (1959);
- International Labour Organization (ILO) Recommendation No. 115 on Worker's Housing (1961);
- International Labour Organization (ILO) Convention No. 117 Concerning Basic Aims and Standards of Social Policy (1962);
- Declaration on Social Progress and Development (1969);
- Vancouver Declaration on Human Settlements (1976);
- International Labour Organization (ILO) Convention No. 161 Concerning Occupational Health Services (1985);
- Declaration on the Right to Development (1986);
- International Labour Organization (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples In Independent Countries (1989);
- Rio Declaration on Environment and Development, and Agenda 21 (1992);
- Vienna Declaration and Programme of Action (1993);
- Beijing Declaration and Platform for Action (1995);
- Istanbul Declaration on Human Settlements (1996);
- Guiding Principles on Internal Displacement (1998);
- Johannesburg Declaration and Plan of Implementation of the World Summit on Sustainable Development (2002);
- Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005);
- Basic Principles and Guidelines on Development-based Evictions and Displacement (2007);
- Declaration on the Rights of Indigenous Peoples (2007); and,
- The Future We Want - Outcome Document of the UN Conference on Sustainable Development (2012).
The following is a list of international human rights treaties ratified by India:
- International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ratified by India on 3 December 1968);
- International Covenant on Economic, Social and Cultural Rights 1966 (ratified by India on 10 April 1979);
- International Covenant on Civil and Political Rights 1966 (ratified by India on 10 April 1979);
- Convention on the Rights of the Child 1989 (ratified by India on 11 December 1992);
- Convention on the Elimination of All Forms of Discrimination against Women 1979 (ratified by India on 9 July 1993); and,
- Convention on the Rights of Persons with Disabilities 2007 (ratified by India on 1 October 2007).
By ratifying an international treaty, the Government of India is legally bound by the provisions of the treaty, including the obligation to implement it in its entirety within the country. Ratification also creates a commitment of the Indian government to report regularly to the UN treaty body responsible for monitoring the implementation of the treaty.
Article 51 (c) of the Constitution of India calls for the state to:
Foster respect for international law and treaty obligations in the dealings of organized people with one another.
Several judgements of the Supreme Court of India have reiterated the government's international legal obligations and reaffirmed the importance of the applicability of international law in India, especially for the protection and realisation of human rights.
In the case, Kapila Hingorani vs. State of Bihar, the Supreme Court highlighted the importance of respecting international law while interpreting the Constitution and domestic law:
24. The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those rights. The applicability of the Universal Declaration of Human Rights and the principles there of may have to be read, if need be, into the domestic jurisprudence.
The Government of India, in its pledge related to India's membership at the UN Human Rights Council (sent to the President of the UN General Assembly in February 2011), also affirmed that:
4. (…) the Supreme Court's far-reaching judgment in the Vishakha v. State of Rajasthan (1997) case, in which the Court ruled that the provisions of international human rights instruments to which India is a Party may be read into the fundamental rights guaranteed in the Indian Constitution, even in the absence of relevant enabling domestic legislation.
The Government of India is thus legally bound by provisions of international human rights treaties that it has ratified.