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Aggarwal, Alison --- "UN Special Rapporteur on Adequate Housing: Emerging Gendered Norms For the Right to Adequate Housing" [2004] AUJlHRights 8; (2004) 10(1) Australian Journal of Human Rights 8

UN Special Rapporteur on Adequate Housing: strengthening gendered norms for the right to adequate housing

Alison G Aggarwal*

In recent years, the normative content of women’s right to adequate housing has been considerably advanced by the work of the United Nations Special Rapporteur on Adequate Housing (SRAH), Mr Miloon Kothari. This article follows the process undertaken by the SRAH in preparation for his reports on women and adequate housing. Through this process he has examined the specific nature of women’s right to adequate housing, the ways in which women are discriminated against and excluded from the right to adequate housing, the relationship between adequate housing and violence against women, and corresponding governmental obligations for the realisation of the right. The article illustrates how the SRAH has used the experiences of women as a critical starting point for reviewing human rights from a gender perspective and as a basis for contributing to a more rigorous normative content of women’s human rights.

Introduction

The human rights regime has been criticised by feminists internationally for being a gender-biased framework, as a result of being primarily developed by men and based on male perspectives and experiences (Charlesworth 1995). At the same time, feminists have also been strong supporters of human rights as universal standards that prohibit discrimination against women, a standpoint which has been articulated most clearly in the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), and related jurisprudence.[1] However, in supporting the human rights regime, a significant number of feminist writers have also called for a review of human rights to ensure they are relevant and applicable to women, and that rights specific to women are identified and incorporated within the framework (Charlesworth et al 1991; Orford 1999, 2002; Otto 1999). In this vein, the Special Rapporteur on Adequate Housing (SRAH), in specifically focusing on women’s rights to adequate housing, has attempted to review this right from a gender perspective. This article examines the SRAH’s work in identifying and elaborating the specific aspects of women’s right to adequate housing, and highlights the significant developments in this area resulting from the SRAH’s work.

The starting point for the SRAH’s examination of women and adequate housing has been the specific experiences of women, as shared through testimonies and case studies. The diversity of women’s experiences has led the SRAH to ensure that his analysis is attentive to the different experiences of diverse groups of women where their right to adequate housing has been violated. The vulnerable groups of women he has identified include indigenous and tribal women, women living with HIV/AIDS; women with disabilities; refugee and internally displaced women; women victims of domestic violence; widowed, divorced or separated women; single mothers; and women victims of forced evictions (Kothari 2003b). The analysis of women’s personal experiences of housing difficulties has led the SRAH to identify critical factors in his annual reports, and in his report on women and adequate housing in 2003 (Kothari 2003b), that are relevant to realising women’s right to adequate housing. From the examination of women’s experiences of violations, two critical issues have consistently emerged as factors that impact on women’s right to adequate housing. First, there is a common trend of violence against women occurring in conjunction with violations of women’s housing rights. Second, intersectional discrimination is an underlying factor in the exclusion of women from the enjoyment of adequate housing.

This article argues that this exploration of women’s specific experiences of housing violations and their causes is an important step towards advancing the normative content[2] of women’s right to adequate housing. It is also an important step towards developing corresponding state responsibilities for addressing the violations commonly experienced by women. The article commences with an overview of the existing articulation of women’s right to adequate housing under international human rights law. It then briefly outlines the role of the SRAH and the processes he has adopted to collect information for his reports on women and adequate housing, and examines his findings that draw on women’s common experiences of violations. The article then explores the role of two themes that have emerged from the information collected — namely, violence against women and intersectional discrimination — and how these underpin women’s exclusion from the enjoyment of the right to adequate housing. The article concludes that the work of the SRAH illustrates how women’s experiences can be an essential element for reviewing human rights from a gender perspective; for contributing to a more rigorous normative content of women’s right to adequate housing; and for the development of appropriate strategies for achieving women’s full enjoyment of human rights.

The existing normative content of women’s right to adequate housing

Estimates released by the United Nations Centre for Human Settlements on the extent of inadequate housing are widely known: ‘1 billion people live in inadequate housing, with in excess of 100 million people living in conditions classified as homelessness’ (United Nations Commission on Human Rights (UNCHR) Fact Sheet 21). According to figures released by the World Health Organization, ‘1.2 billion people in developing countries do not have access to drinking water and 1.8 billion people live without access to adequate sanitation’ (UNCHR Fact Sheet 21). However, relatively few gender disaggregated statistics are available, meaning that the extent to which women experience homelessness and inadequate housing is often unknown or unacknowledged.

While the general right to housing has been recognised in several UN conventions and declarations, with its clearest articulation in the International Covenant on Economic Social and Cultural Rights (ICESCR, art 11(1)), the only specific recognition of women’s right to adequate housing appears in CEDAW, art 14(2)(h),[3] although this is limited to women living in rural areas. Reference to women’s housing rights is also made in the Beijing Platform for Action adopted by the Fourth World Conference on Women (Beijing PFA)[4]. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention) also recognises the right of migrant women workers to adequate housing (art 43(1)).[5]

On occasion, the CEDAW Committee has referred to women’s right to adequate housing in its General Recommendations (authoritative interpretations of the CEDAW). In General Recommendation 21, the Committee refers to housing indirectly within its coverage of marital property and inheritance (CEDAW Committee 1994). The Committee comments on the discrimination women face, both legally and in practice, that prevents their rights to property and inheritance from being recognised, specifying in relation to art 15(2),[6] that ‘[a]ny such restriction [that] prevents her from holding property as the sole owner ... seriously limit[s] the woman’s ability to provide for herself and her dependents’ (CEDAW Committee 1994, para 7). The Committee further notes that the rights under arts 15(2) and 16(1)(h)[7] are connected, and that

[t]he right to own, manage, enjoy and dispose of property is central to a woman’s right to enjoy financial independence, and in many countries will be critical to her ability to earn a livelihood and to provide adequate housing and nutrition for herself and for her family ... (emphasis added) (CEDAW Committee 1994, para 26).

Further, the non-discrimination articles in CEDAW (art 2) and ICESCR (art 2(2)), by prohibiting discrimination against women across all areas of the relevant treaty, provide a strong foundation for both committees to address discrimination women face in any area, including housing.

The Committee on Economic Social and Cultural Rights (CESCR) has, in its General Comments and Concluding Observations (responses to state parties’ periodic reports), begun the process of developing the normative content of the right to adequate housing by identifying a range of elements, including legal security of tenure, availability of services, materials and infrastructure, affordability, habitability, accessibility, location and cultural adequacy, and the state obligations that arise from these. However, these elements and obligations are not always discussed within the specific context of women’s experiences of violations.[8] Leilani Farha has been an important and leading commentator on these issues, noting that UN officials and human rights advocates have, in the past, been reluctant to conceptualise housing rights in ways that incorporate women’s perspectives (Farha 2002: 120). She argues that, in an effort ‘to be universally applicable, and hence gender neutral and de-contextual, the comment [General Comment 4] appears to ignore women’ (Farha 2002: 127). In support of this, she cites examples from the General Comment where women are not recognised as one of the disadvantaged groups in relation to housing, where there is a lack of explicit mention of sex discrimination (in contrast to the explicit reference to race discrimination) and, finally, where there is a failure to discuss ‘women’s material conditions’ and the ‘particular barriers to accommodation that are experienced by women, due ... to women’s poverty and the discrimination against women that is implicit in laws, policies, customs and traditions’ (Farha 2002: 128).

Farha argues that the treatment of the element of habitability in General Comment 4 is based on male perceptions of threat originating from outside the home and fails to consider the very real and common threats women face from within the home — particularly in relation to domestic violence and marital rape. Applying a substantive equality definition to the element of habitability, she argues:

An adequate house must protect occupants from threats to [physical and mental] violence and safety that are external and internal to the house ... Women must be adequately protected against domestic violence and State parties have an obligation to ensure women’s safety within the home (Farha 2002: 139).[9]

However, Farha goes on to note that General Comment 4 does not preclude interpretations that are inclusive of women’s experiences, and therefore recommends that the CESCR Committee consider women’s material conditions when applying the principles of General Comment 4 in their examination of state parties’ periodic reports (Farha 2002: 131).

Farha concludes by calling for a general comment from the CESCR that outlines ‘how States should interpret and implement the right to non-discrimination based on sex and women’s right to equal enjoyment of covenant rights’ (Farha 2002: 136). Similarly, Dianne Otto notes that the CESCR’s General Comments have ‘fall[en] short of the full integration of women’s human rights, which requires closer attention to the structural impediments to women’s full enjoyment’ (Otto 2002: 34). Otto welcomes the CESCR’s general comment on women’s economic, social and cultural rights ‘as a means for bringing the indivisibility of women’s human rights closer to realization’ (Farha 2002: 34). While the CESCR is yet to finalise its comment on art 3 of the ICESCR, outlined below are some of the positive advances being made by the SRAH in parallel processes that are contributing to advancing the explicit recognition of women’s right to adequate housing.

The role of the Special Rapporteur on Adequate Housing

As at 2003, there were 24 Special Rapporteurs with reporting responsibilities to the UN High Commissioner for Human Rights (UNCHR), of which 17 covered thematic issues such as violence against women and the right to adequate housing (UNCHR Thematic Mandates) and six were country-specific (UNCHR Country Mandates). Special Rapporteurs are engaged to investigate, monitor, report and recommend courses of action for the full realisation of specific human rights or to address human rights violations in particular countries. While Special Rapporteurs cover a wide range of human rights issues under their different mandates, they share the common aim of strengthening the implementation of the norms set out in international human rights conventions (Pittaway 2000).

The work of Special Rapporteurs was described by the first High Commissioner for Human Rights, Mr José Ayala Lasso, as a ‘pillar of ... implementation of human rights at a practical level ... the most concrete and tangible in terms of both fact-finding, and the provision of advice and assistance’ (United Nations Economic and Social Council (ECOSOC) 1995, para 3). The High Commissioner saw the Special Rapporteurs as bearing the responsibility to ‘provide well-defined criticism as well as useful propositions for productive courses for action’ (ECOSOC 1995, para 3). In a joint meeting of Special Rapporteurs, they themselves reflected on their role being ‘not merely [as] chroniclers of events and violations ... [but being] catalysts in a broader process of change’ (Report on the Meeting of Special Rapporteurs 1994, referred to in Rodley 1995, para 12).

In September 2000, the UNCHR established the new mechanism of the Special Rapporteur on Adequate Housing in Resolution 2000/9. Mr Miloon Kothari from India was appointed to the position for a period of three years, which was renewed for a further three-year term in April 2003 (UNCHR Resolution 2003/27). The mandate of the SRAH is to ‘focus on adequate housing as a component of the right to an adequate standard of living, as reflected in international instruments’ (UNCHR Resolution 2000/9). The mandate includes:

(a) Reporting on the status of the realisation of rights relevant to his mandate;

(b) Promoting cooperation among and assistance to governments in their efforts to secure these rights;

(c) Applying a gender perspective;

(d) Developing a regular dialogue and discussing possible areas of cooperation with governments, relevant UN bodies, specialised agencies, international organisations in the field of housing rights, inter alia the UN Centre for Human Settlements (UNCHS-Habitat), non-governmental organisations and international financial institutions;

(e) Identifying possible types and sources of financing for relevant advisory services and technical cooperation;

(f) Facilitating the inclusion of issues relating to the mandate in relevant UN missions, field presences and national offices; and

(g) Reporting annually to the Commission on Human Rights (UNCHR Resolution 2000/9).

In speaking about his mandate before the UNCHR in 2003, the SRAH said:

In pursuing my mandate, I have followed a holistic approach, based on the reality that all human rights are interrelated and indivisible. The right to adequate housing cannot be fully realized if separated from other rights such as the rights to food, water, sanitation, electricity, health, work, property, security of the person, security of home, and protection against inhuman and degrading treatment ... Within this broad framework, my particular focus has been to develop a strong gender perspective, consistent with the right to non-discrimination ... (emphasis added) (UNCHR 2003, Statement of Mr Miloon Kothari).

In the same year that the SRAH was appointed, the UNCHR passed Resolution 2000/13, titled ‘Women’s Equal Ownership of, Access to and Control over Land and the Equal Rights to Own Property and Adequate Housing’. Resolution 2000/13 reflected efforts within the UN at the time to mainstream gender perspectives.[10] It encouraged ‘all human rights treaty bodies, special procedures and other human rights mechanisms, regularly and systematically to take a gender perspective into account in the implementation of their mandates’ (UNCHR Resolution 2000/13, para 12).

This Resolution was a critical breakthrough for incorporating a gender perspective in the work specifically undertaken by the UNCHR on the right to adequate housing.[11] The Resolution affirms that ‘discrimination in law against women with respect to acquiring and securing land, property and housing, as well as financing for land, property and housing, constitutes a violation of women’s human right to protection against discrimination’ (UNCHR Resolution 2000/13, para 1) and reaffirmed women’s right to an adequate standard of living, including adequate housing (UNCHR Resolution 2000/13, para 2). The Resolution advanced the work previously done by the Sub-Commission on Human Rights on women’s right to adequate housing,[12] by placing it squarely on the UNCHR’s agenda. The Resolution concluded by committing the UNCHR to ‘consider the issue of women’s equal ownership of, access to, and control over land and the equal rights to own property and to adequate housing’ at its 57th session (UNCHR Resolution 2000/13, para 14). This opened the door for the ongoing consideration of women’s right to adequate housing and the SRAH’s work in the years to come.

In 2001, the UNCHR urged governments to comply fully with their international and regional obligations and commitments concerning land tenure and the equal rights of women to own property and to an adequate standard of living, including adequate housing (UNCHR Resolution 2001/34, para 4) and requested that the Secretary-General review and report on state actions taken to implement women’s equal ownership of, access to and control over land and their equal rights to own property and to adequate housing (UNCHR Resolution 2001/34, para 14). The Secretary-General’s review was a preliminary step to deciding whether fuller studies on the issue were required. In 2002, the Secretary-General submitted his report (UNCHR Report E/CN.4/2002/53 2002), in which he called for constitutional recognition of the principle of equality and non-discrimination, and gender-sensitive legislation, as prerequisites for guaranteeing and protecting women’s rights to land, housing and property (UNCHR Report E/CN.4/2002/53 2002: 22). The Secretary-General also noted the need for more substantive research and suggested that the SRAH may be an appropriate mechanism for conducting such research, given his willingness to examine these issues within his mandate (22). Thereafter, in Resolution 2002/49, the UNCHR followed the Secretary-General’s recommendation and requested that the SRAH submit, at its 59th session, a study on women and adequate housing for its consideration in 2003. This would be the first full study undertaken on women’s right to adequate housing commissioned by the UNCHR.

The agenda for mainstreaming women’s human rights that emerged from the 1995 Fourth World Conference on Women provided the impetus for UN bodies, such as the UNCHR, to further their engagement with women’s rights. However, the push for the UNCHR to specifically consider gendered aspects of the right to adequate housing came about as a result of the strong lobbying by housing and women’s NGOs.[13] The consequent interest by the UNCHR in explicitly promoting women’s housing rights, combined with the opportunity provided by the SRAH to research the issues further, has created a strategic opportunity for advancing women’s right to adequate housing.

The processes undertaken by the SRAH in relation to women and adequate housing studies

The SRAH has used four key strategies to collect information for his reports on women and housing: developing and disseminating his Questionnaire on Women and Adequate Housing (2002);[14] undertaking regional consultations with civil society groups; generating dialogues with treaty bodies and UN agencies; and working with civil society in ways additional to the regional consultations.

The Questionnaire strategy was designed with a two-fold purpose: to collect information from states and civil society groups about women’s housing difficulties and, at the same time, to educate them about women’s right to adequate housing. Although based initially on the Tool Kit developed by the Housing and Land Rights Committee (HLRC) of Habitat International Coalition (HIC),[15] an important part of the process involved the construction of gender-sensitive questions aimed at eliciting information about the specific causes and effects of violations of women’s housing rights.

The Questionnaire was divided into two sections, to reflect the two main areas of information being sought. The first section focused on the general legal and policy framework, while the second identified specific elements of the right to adequate housing. The elements of the right to adequate housing were taken from CESCR General Comment and were expanded to include other elements,[16] with questions specific to women. For example, reporting on the existence of sex discrimination legislation and other legislation relevant to women; and reporting on whether the laws, policies and measures adopted to ensure equitable distribution of land had an emphasis on gender equality (Kothari 2002b). The Questionnaire was amended in 2003 to include the element of violence against women, requiring information on the existence of sex discrimination legislation, domestic violence legislation and other legislation relevant to women; assessing whether women’s equality provisions were consistent with the substantive equality model identified in CEDAW; identifying services commonly necessary for women, such as child care; and identifying violence against women as a distinct element of housing, separate from privacy and security (Kothari 2003c).

Australian housing rights advocates have actively responded to this opportunity to submit information to the SRAH on women and housing. In 2002, the Homeless Persons’ Legal Clinic of the Public Interest Law Clearinghouse (Victoria) submitted a report on women and housing, responding to selected, relevant elements of the Questionnaire (Otto and Lynch 2002). This was followed up in February 2004 with a national consultation on women and housing in Melbourne, conducted by housing groups from around Australia. Case studies from all states and territories, documenting women’s experiences of housing violations relating to the different elements of the right to adequate housing, were also collected. A report on the case studies and the common findings was submitted to the SRAH in July 2004 (Coalition of Non-Government Workers — Australia 2004).[17]

The second strategy of regional consultations had been used previously to great effect by the Special Rapporteur on Violence Against Women, Radhika Coomaraswamy. During her term she was invited annually by the Asia Pacific Forum on Women, Law and Development (APWLD) to meet with women’s groups from the Asia Pacific region. The regional consultations aimed to provide a forum where civil society could provide information on current and emerging issues and effective strategies for addressing violence against women to the Special Rapporteur, to be included in her annual report to the UNCHR (APWLD 2003b). Adopting a similar approach, the SRAH held civil society regional consultations in Asia, Central and Latin America and Africa. He adapted the strategy to allow maximum opportunities for grassroots women to testify on human rights violations, thereby gaining much of his information on the direct and specific experiences of women from diverse backgrounds. He also included a training component within his consultations, to assist in the further analysis of women’s housing rights by women’s groups and housing groups. One of the critical benefits of the consultations was facilitation of the greater interaction between these two groups, which have often worked on related issues but in separate sectors and, at times, with limited interaction (APWLD 2003a).

The SRAH’s third strategy — to generate dialogue with UN treaty bodies and agencies — aimed to promote the institutional change necessary for engaging with housing rights from women’s perspectives. In an effort to transcend the divide between the different treaty committees and UN agencies, arising from their different mandates and working methods, the SRAH has actively engaged with the CEDAW Committee,[18] CESCR Committee, UN-Habitat, UN Housing Rights Programme, UNESCO, UNIFEM and UNHCR, among others (Kothari 2003a). These dialogues have been instrumental in highlighting women’s rights to adequate housing across a range of treaty and Charter-based mechanisms within the UN.

Finally, the strategy of working with civil society included responding to urgent actions, working with civil society groups during country missions to access a wider range of groups and issues within the state, and requesting experts and academics working on women and housing to contribute background papers on key issues such as inheritance and other discriminatory cultural practices, the impact of globalisation on women, and violence against women. In particular, working with women’s groups has been of critical importance, in light of the limited information on women’s rights that is available through the periodic reports by member states to the human rights treaty committees, as well as the lack of data and research available from many national housing groups.

Utilising the information gathered through such processes, the SRAH has reported on aspects of women’s rights to adequate housing in his annual reports, as well as submitting his first report on women and adequate housing in 2003.

Contributing to the normative content of women’s right to adequate housing

Since 2000, the SRAH has gathered information for his annual reports and specific reports on women and adequate housing through a range of initiatives, as discussed above. His annual reports have identified a wide range of women’s housing violations and developed guidelines and recommendations for both the de jure and de facto realisation of women’s right to adequate housing, to promote formal protection as well as practical realisation. This section demonstrates some of the ways in which the SRAH has articulated different aspects of the right to adequate housing in his reports, as they pertain to women.

In his first annual report, the SRAH broadly defined the right to adequate housing as ‘the right of every woman, man, youth and child to gain and sustain a secure home and community in which to live in peace and dignity’, a choice of phrasing that clearly includes and highlights women (Kothari 2001, para 8). He also highlighted gender discrimination as a priority issue to be addressed by the international community (Kothari 2001, paras 66–68). In his second report, he developed an initial analytical framework for addressing issues of housing-related discrimination (Kothari 2002a, paras 37–47), in which he again called for specific attention to the discrimination women face in relation to land, property and housing rights. He focused particularly on women who face ‘double discrimination’: women who bear the impacts of gender discrimination in combination with other forms of discrimination based on grounds such as race, caste, class, disability, age and sexual orientation (Kothari 2002a, paras 46(g) and 47(c)).[19] He also highlighted women’s housing issues in his third report, noting the distinct relationships women have with the environment and land, the diversity in housing needs among women in differing contexts, and the related water and sanitation issues that arise for women (Kothari 2003a, paras 20–34). Finally, in his most recent report, he highlighted some of the particularities of women’s right to adequate housing arising in relation to forced evictions (Kothari 2004a, paras 41–57).

In addition to his annual reports, the SRAH submitted a report on women and adequate housing to the UNCHR in 2003 (Kothari 2003b) pursuant to the UNCHR’s resolution 2002/49. The study revealed that despite the formal promotion of gender equality and non-discrimination through national legislation and international conventions, in practice women face continuing discrimination in their access to housing, land and civic services. This discrimination is attributed to the perpetuation of discriminatory customs and traditions, lack of awareness, and the persistence of gender bias in the formulation and implementation of national polices (Kothari 2003b).

The response of the UNCHR to the SRAH’s findings on women and adequate housing was positive and supportive. The UNCHR reaffirmed that ‘discrimination in law against women with respect to having access to, acquiring and securing land, property and housing, as well as financing for land, property and housing, constitutes a violation of women’s human right to protection against discrimination’ (UNCHR Resolution 2003/22, para 3). The UNCHR encouraged governments to address issues of forced relocation and forced evictions, and their disproportionate impact on women. It further reaffirmed the obligation of states to ‘take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise, in particular by financial lending institutions’ (UNCHR Resolution 2003/22, para 6). By specifically referring to ‘person, organization or enterprise’, the UNCHR highlighted that the nature of states’ obligations in relation to women’s rights to housing extended beyond their direct responsibility for violations by state actors and agents, to also include an obligation of due diligence to regulate non-state actors, to prevent private actors from violating women’s rights and, where they are violated, to provide adequate redress.[20] Directly addressing non-state actors, the UNCHR also recommended that housing financing institutions and credit facilities address discrimination against women. The Resolution also encouraged UN agencies to provide human rights education on women’s rights to land, property and housing and invited all states to respond to the SRAH’s Questionnaire (UNCHR Resolution 2003/22, para 9). The UNCHR concluded by requesting the SRAH to submit a follow-up study on women and adequate housing at its 61st session (UNCHR Resolution 2003/22, para 14).

As official documents of the UNCHR, and supported by its subsequent resolutions, the SRAH’s reports are a critical means of contributing to the advancement of the ‘soft law’ content of the right to adequate housing. While not explicitly binding upon member states in the same way as ratified treaties, the reports nevertheless constitute an influential body of authoritative opinion on treaty and Charter-related laws. Thus the UNCHR’s conclusions, along with the SRAH’s reports, provide a strong foundation for furthering the recognition, protection and fulfilment of women’s rights to adequate housing.

Grounding the right to adequate housing in women’s experiences: violence and intersectional discrimination

Farha suggests that grounding an understanding of women’s rights in women’s experiences is essential to making human rights relevant for women and the kinds of exclusions they face:

Given the importance of housing in women’s lives, the distinctive relationship between women and housing and the fact that for many women worldwide, home is their primary sphere of activity, placing women at the centre of an understanding of housing rights makes good sense ... In order for the right to housing to take on real relevance for women and for it to respond to the demands of substantive equality, it may be necessary to move ... towards a reformulation of the fundamental principles informing housing rights, which puts women at its centre (Farha 2002: 131).

Taking a similar approach, the SRAH has found listening to women’s experiences to be integral to his exploration of a broad and inclusive approach to women’s right to adequate housing.

The Asia Regional Consultations, titled ‘Interlinkages between Violence Against Women and Women’s Right to Adequate Housing’, conducted 28–31 October 2003,[21] illustrate the benefits of using this approach. A wide range of testimonies was presented by women, including migrant domestic workers, victims of domestic violence, fisherfolk, Dalit women, refugees, nomads, indigenous hill tribe women, plantation workers, women working on evictions in urban slums, and representatives from women’s groups. In their testimonies, women discussed the specific forms of housing rights violations they faced, identifying the impacts on them, as women. The testimonies illustrated the differing experiences of women, as a non-homogenous group. In light of the lack of data available on housing violations experienced by women, primarily due to the lack of collation of such information by member states, national housing NGOs and UN agencies, the individual testimonies provided an essential source of information, particularly about how marginalised groups of women experienced housing rights violations. Emerging from the analysis of women’s experiences were two critical common themes relating to women’s right to adequate housing: namely, violence against women and intersectional discrimination. These themes are discussed in more detail in the following sections.

Violence against women

From women’s testimonies, the experiences of violence, albeit in its different forms and contexts, became a common entry point for understanding violations of women’s right to adequate housing and associated human rights.

Women continue to live in a culture of fear and insecurity, perpetuated by the impunity of violators and duty holders. Women’s identity and self-determination continues to be denigrated. The lack of a secure place to live aggravates this already serious situation and contributes to increasing violence against women ... (APWLD 2003a).

The testimonies highlighted several important points about the interconnection between violence and housing, as experienced by women. It was noted that although there is not always a direct link between gendered violence and housing rights violations, there is a discernable, albeit complex, correlation (APWLD 2003a).

[V]iolence against women ... and women’s RAH [right to adequate housing] are connected in the sense that a violation of one can be a cause and/or contributory factor for the violation of the other. A violation of women’s RAH or an act of violence against women can have a similar effect and impact on women, in terms of deprivation, disadvantage and discrimination against women. A violation of RAH can also be a form of violence against women. Similarly, violence against women can be a form of violation of RAH. The nature of violence commonly experienced by women, particularly in situations where their RAH is violated, creates an urgent need for the interlinkages to be addressed (APWLD 2003a: 8).

Most frequently the testimonies showed that violations of women’s right to adequate housing are carried out in conjunction with acts of violence against women. Examples shared during the consultations included:

• Widows being prevented from claiming family property or rights to the family home through acts of domestic violence;

• People resisting forced evictions in Indonesia being faced with violence perpetrated by state authorities, which targeted women. In the midst of evictions, women were subjected to verbal abuse, beatings, rape, killings, burning and destruction of property and homes;[22]

• Dalit or nomadic women in India being beaten and raped while accessing water from community sources;

• Shan women being systematically raped by the Burmese military as they forced the eviction of Shan communities;

• A domestic worker in Malaysia being imprisoned in a cage, with no facilities, and only let out to work for the hours she was needed in the house. Domestic workers were also faced with assault, sexual harassment and rape in the houses in which they lived and worked; and

• Women plantation workers in Sri Lanka living in line houses[23] facing domestic violence that was exacerbated by the density and lack of privacy they had in this type of housing (APWLD 2003a).

Once it was understood that women’s experiences of violence often threaten their housing rights, the need to broaden the concept of ‘housing’ was also identified. Women described several forms of accommodation, including shelters, detention centres, refugee camps, and factory dormitories, which for them were home and in which they had experienced violence (including sexual harassment).

The women’s testimonies also highlighted the prevalence of the use of sexual and gender-based violence as a tool for oppressing, controlling and silencing women in the context of housing. All forms of violence, including physical, mental, psychological and economic, have the potential to impact on women’s security in housing. What was further shown was how violence was often culturally condoned and how this created a climate of impunity. For example, where husbands who evict their wives from their homes go unpunished, the threat of similar action against other women is sufficient to create a climate of silence and fear. Within such a culture of impunity, acts of eviction do not even have to take place for women’s housing rights to be affected (APWLD 2003a).

The testimonies illustrated that housing violations and violence against women are also connected in the sense that lack of adequate housing can make women more vulnerable to various forms of violence. For example, after forced evictions, women are often more vulnerable to domestic violence (which can be exacerbated by the higher levels of stress in the family caused by the eviction), trafficking, or sexual assault in the community (APWLD 2003a).[24] In systemic or large-scale housing rights violations, such as in situations of land grabbing and armed conflict, women’s vulnerability to violence is even greater, particularly where rape is used as a tool of war or to intimidate whole communities (APWLD 2003a).

Thus, in identifying what factors would break the cycle of violence and housing violations, it is critical to be directly informed by women’s experiences. Furthermore, it is important to understand how housing factors such as space and density contribute to or prevent violence against women. For example, Bina Agarwal and Pradeep Panda (2003) reported that a survey of 502 married rural and urban women revealed that there was a lower percentage of physical and psychological violence among women who owned property. They concluded that ‘women’s ownership of immovable property clearly serves as a protection against all forms of spousal violence’.[25]

Their survey also showed the diverse ways in which the connection between violence and housing impacted on and shaped the subsequent strategies and forms of redress women sought. For example, the women from nomadic tribes in India were vulnerable to particular forms of violence, such as rape by higher caste members and child marriage, because they were not able to access or own secure housing. Thus their strategy was to advocate for a simple shelter with a door they could lock to protect themselves from violence. In a contrasting example, women working and living on plantations in Sri Lanka were vulnerable to domestic violence as a result of the lack of privacy and overcrowded conditions of the line houses in which they resided. Their strategy was to seek alternatives to the type of housing that made them more vulnerable to violence. They advocated for houses for each family that were independent structures, with separate rooms, because their experience was that the violence decreased once privacy and overcrowding issues were addressed (APWLD 2003a).[26]

Exploring women’s direct experiences of housing rights violations through testimonies has highlighted the critical connection between violence against women and women’s adequate housing in ways that have not been sufficiently articulated within the existing normative content of the right to adequate housing. Violence against women can play a critical role by making women more vulnerable to housing rights violations, which in turn can expose them to more violence. Strategies for addressing violence against women that is associated with or results from housing violations must address both issues. Arguably, given the frequent nexus between them, addressing violence against women should be identified as an additional element of ensuring the women’s enjoyment of the right to adequate housing.

To this end, following the consultations, the SRAH called for increased data collation on the short term and long term impacts of housing rights violations on different vulnerable groups of women, and for research on factors in housing, land, property and inheritance that could stem the cycles of violence women face (APWLD 2003a). He also called for states to include anti-violence provisions, which protect women’s right to housing, in housing and sex discrimination legislation, policies and provisions. Lastly, in addressing civil society, he called for increased joint action between women’s groups working on violence against women and groups working to protect rights to adequate housing (Kothari 2004b).

Intersectional discrimination

The Committee on Economic, Social and Cultural Rights has argued that ‘[n]on-discrimination and equality are integral elements of the international human rights normative framework’ (CESCR E/C.12/2001/10 (2001), para 11). Non-discrimination on the grounds of sex is specifically prohibited in the UN Charter and in human rights treaties (UN Charter, art 1.3; Universal Declaration of Human Rights, art 2; ICESCR, arts 2.2 and 3; ICCPR, arts 2.1 and 3; CEDAW, arts 1-3). Some human rights treaty committees have also issued General Comments or Recommendations specifically addressing discrimination against women within the scope of the rights enumerated by their treaties (see ICCPR General Comment 28 2000 and CEDAW General Recommendation 21 1994).

Emerging from the testimonies was the realisation that a common cause of violations of women’s right to adequate housing lies in the inferior status or subordinate role attributed to women in patriarchal societies and structures.[27] This was supported by examples of women who were denied access to public housing in Malaysia because they were not officially divorced; social welfare systems in Mongolia not recognising victims of domestic violence or their housing needs; women who faced harassment and violence during forced evictions in Indonesia;[28] and discriminatory laws and practices which limit the inheritances women can receive (APWLD 2003a: 41–6). Therefore, addressing discrimination against women is fundamental to the realisation of women’s right to adequate housing.

However, exploring violations of housing rights experienced by women in differing contexts, such as nomadic women, Dalit women, migrant women workers, and rural women, demonstrated that vulnerability to discrimination (and violence) on the grounds of sex can combine with other factors such as age, ethnicity, caste, ability and sexual orientation to produce new forms of discrimination against women. This has been referred to as ‘intersectional discrimination’ or ‘multiple forms of discrimination’, and has been explained by Graterol:

Intersectional oppression, marginalization and/or exclusion that arises out of the combination of various oppressions (ie sexism, racism, xenophobia, homophobia, etc) which, together, produce something unique and distinct from any one form of discrimination standing alone. The effect of multiple forms of discrimination experienced by one woman is compounded and therefore, leaves her in a situation of further disadvantage (Graterol 2004: 2).

An intersectional analysis requires ‘a shift from a single ground perspective to an analysis based on the assumption that an individual’s experiences are based on multiple identities that can be linked to more than one ground of discrimination’ (Graterol 2004: 2). Women’s groups from the Asia Pacific and other regions lobbied strongly for recognition of these principles at the World Conference Against Racism in 2001. Within that context it was argued that

[t]o assure the incorporation of a gendered approach in human rights analysis, there must be recognition of the concept of intersectionality of gender, class, racism and other forms of discrimination ... Using this framework, State and non-state actors can be held accountable for intersectional forms of discrimination against women and girls in both the public and private sphere. It binds States to actualise women’s civil, political, economic, social and cultural rights (APWLD 2002).

Sunila Abeyesekera, speaking on intersectional racism at the NGO Forum of the World Conference, explained further the advantages of applying an approach to gender discrimination that addressed intersectionality:

In unraveling the issue of privilege, an intersectional analysis allows us to examine our own positioning on the grids of power and to see how, in different moments, our different identities can place us in positions of superiority or inferiority in relation to others. It seeks to capture both the structural and dynamic consequences of the interaction between two or more forms of discrimination or systems of subordination ... It enables us to work on the processes of mainstreaming gender and women’s concerns into the human rights system by allowing us to focus on differences between men and women while at the same time also focusing on the differences between women. It enhances our capabilities in terms of working for the protection of women’s rights and especially for the protection of the rights of vulnerable groups of women, because it expands the scope of gender-based human rights protection by paying attention to the various ways in which gender intersects with various other identities (APWLD 2002).

The Committee on the Elimination of Racial Discrimination recognised the impact of the intersection of discrimination on the grounds of race and gender in its General Recommendation 25: Gender Related Dimensions of Race Discrimination (ICERD 2000 [NOT IN REF LIST?]).[29] The impact of multiple forms of discrimination on women has also been subsequently recognised in the agreed outcomes from the World Conference on Racism (UN General Assembly 2002 (Durban Declaration), Preamble, arts 2 and 69). Since the World Conference, the International Women’s Rights Action Watch Asia-Pacific has continued to advocate for an intersectional approach to women’s human rights. Following the General Recommendation, the group notes that, in its practical application, the intersectional approach can help to determine:

(1) the form multiple discrimination takes and its nature, (2) the circumstances in which it occurs, (3) the consequences of intersectional discrimination, and (4) the need for appropriate remedies, laws, policies and measures to be implemented at the national level (Graterol 2004).

The testimonies presented to the SRAH at the consultations in Asia highlighted the ways in which women experience intersectional discrimination. For example, women migrant workers in Hong Kong related that their status as migrant workers meant they had to live in uninhabitable conditions, and that their situation of work left them vulnerable to rape and other forms of sexual assault — both being forms of discrimination linked to their status as women. In another example, women from the hill tribe groups in Thailand described their limited access to and ownership of land as a result of a combination of the discrimination they face from the state on the grounds of their hill tribe status and the discrimination they face from within their community on the grounds of their status as women. Based on the common recognition of the impact of intersectional discrimination, testifiers at the consultation insisted that intersectional discrimination had to be understood as an underlying cause of violations of women’s housing rights, in order for those violations to be comprehensively addressed (APWLD 2003a).

Given the lack of explicit and formal recognition of women’s right to adequate housing, the principle of non-discrimination provides an important starting point. Yet in so doing, it is important to recognise women’s experiences of intersectional discrimination — its impacts and the need for strategies that address the multifaceted manifestations of discrimination.

Conclusion — implications for women’s rights to adequate housing

I have focused on the work of the SRAH, explaining his mandate and his approach to developing the normative content of the right to adequate housing. I have described in some detail the initiatives the SRAH has taken to collate information on the violations of adequate housing experienced by women, and how he has drawn from this to contribute to stronger standard-setting on women’s rights at the international level. In particular, the SRAH has identified specific elements of women’s right to adequate housing in his annual reports, which in itself has made an important contribution to mainstreaming women’s human rights.

Furthermore, the SRAH has also drawn on testimonies of women’s actual experiences of housing violations from around the world. Using the example of the Asia Regional Consultations, I have demonstrated the importance of these testimonies as a means of locating women at the centre of the SRAH’s efforts to develop the normative content of women’s rights to adequate housing. Two key themes have emerged from this approach: the need to understand and address the linkages between violence against women and inadequate housing, and the need to apply an intersectional approach in order to achieve a comprehensive analysis of the kinds of discrimination affecting women’s housing rights. Incorporating these two themes into the analysis of the right to adequate housing makes an important contribution to the development of the normative content of women’s right to adequate housing.

The further entrenchment of these themes could be advanced through their subsequent recognition as elements of women’s right to adequate housing by other sources of ‘soft’ law, including the findings of the 10-year review of the Beijing Platform for Action (scheduled for 2005); the adoption of general comments on women’s rights to adequate housing by treaty bodies (particularly by the CEDAW, CERD and CESCR Committees); reflection of these concerns in the monitoring of states’ obligations by human rights treaty bodies (in responding to state reports); and consolidation of these findings in the UNCHR’s resolutions. These findings could also make a significant contribution to strategies developed by states and NGOs to address housing rights violations by promoting greater integration of housing and violence issues in legislation and policy, development of comprehensive strategies that address multiple forms of discrimination, and improved research and education into women’s right to adequate housing. In sum, the work of the SRAH has made an important contribution by establishing a foundation for more fully understanding the content of women’s rights to adequate housing and what is required for their implementation.

References

International legal materials

Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) UN Doc. E/CN.4/Sub2/2003/38/Rev.2

Coomaraswamy R (1994) Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, Its Causes and Consequences: Ms Radhika Coomaraswamy, in Accordance with Commission on Human Rights Resolution 1994/45 UN Doc E/CN.4/1995/42 (22 November 1994)

Human Rights Committee (2000) General Comment 28 — Equality of Rights Between Men and Women (Article 3) UN Doc CCPR/C/21/Rev.1/Add.10 (29 March 2000)

International Covenant on Civil and Political Rights (ICCPR) 23 March 1976, 999 UNTS 171

International Covenant on Economic, Social and Cultural Rights (ICESCR) 3 January 1976, 993 UNTS 3

Istanbul Declaration and Habitat Agenda: Commitments to Housing Rights 1996 UN Doc A/CONF.147/18 [Online] Available: <www.unhabitat.org/declarations/Istanbul.asp> [2004, August 30]

Kothari M (2001) Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living UN Doc E/CN.4/2001/51 (25 January 2001)

Kothari M (2002a) Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living UN Doc E/CN.4/2002/59 (1 March 2002)

Kothari M (2002b) Questionnaire on Women and Adequate Housing [Online] Available: <www.unhchr.ch/housing> [2004, August 30]

Kothari M (2003a) Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living UN Doc E/CN.4/2003/5 (3 March 2003)

Kothari M (2003b) Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living and on the Right to Non-Discrimination UN Doc E/CN.4/2003/55 (26 March 2003)

Kothari M (2003c) Amended Questionnaire on Women and Housing (Including VAW)(unpublished)

Kothari M (2004a) Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living UN Doc E/CN.4/2004/48 (2 November 2004)

Kothari M (2004b) Special Rapporteur on Adequate Housing Statement for International Women’s Day 8 March 2004

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights Maastricht 22–26 January 1997 [Online] Available: <www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html> [2004, August 30]

Report on the Meeting of Special Rapporteurs/Representatives/Experts and Chairpersons of Working Groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme UN Doc E/CN.4/1995/5 (15 June 1994); referred to in S Rodley (1995) Report of the Special Rapporteur, Mr Nigel S Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1992/32 (E/CN.4/1995/34 para 12)

Rodley S (1995) Report of the Special Rapporteur, Mr Nigel S Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1992/32 UN Doc E/CN.4/1995/34

United Nations (1990) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families GA Res 4th Session, 18 December 1996, UN Doc A/RES/45/158 (1990)

United Nations (1995) Beijing Declaration and Platform for Action [Online] Available: <www.un.org/womenwatch/daw/beijing/platform/index.html> [2004, August 30]

United Nations Charter (26 June 1945) [Online] Available: <www.unhchr.ch/html/menu3/b/ch-cont.htm> [2004, August 30]

United Nations Commission on Human Rights Fact Sheet No 21: The Human Right to Adequate Housing [Online] Available: <www.unhchr.ch/html/menu6/2/fs21.htm> [2004, August 30]

United Nations Commission on Human Rights Special Procedures of the Commission on Human Rights — Country Mandates [Online] Available: <www.unhchr.ch/html/menu2/7/a/cm.htm> [2004, August 30]

United Nations Commission on Human Rights Special Procedures of the Commission on Human Rights — Thematic Mandates [Online] Available: <www.unhchr.ch/html/menu2/7/b/tm.htm> [2004, August 30]

United Nations Commission on Human Rights (2002) Economic, Social and Cultural Rights: Women’s Equal Ownership of, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing — Report of the Secretary-General Submitted in Accordance with Commission Resolution 2001/34 UN Doc E/CN.4/2002/53 (15 January 2002)

United Nations Commission on Human Rights (2003) Statement of Mr Miloon Kothari, SRAH (4 April 2003)

United Nations Commission on Status of Women (1998) ‘Resolution 42/1’ in Commission on the Status of Women Report on the 42nd session (2–13 March 1998) Economic and Social Council Official Records 1998, Supp No 7, UN Doc E/CN.6/1998/12–E/1998/27 (2–13 March 1998)

United Nations Committee on Economic, Social and Cultural Rights (2001) Poverty and the International Covenant on Economic, Social and Cultural Rights: Statement UN Doc E/C.12/2001/10 (4 May 2001)

United Nations Committee on the Elimination of Racial Discrimination (2000) General Recommendation 25: Gender Related Dimensions of Racial Discrimination 20/03/2000

United Nations Economic and Social Council (1995) Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme of Methods of Work of the Commission: Follow-Up to the World Conference on Human Rights: Note by the High Commissioner of Human Rights: Addendum UN Doc E/CN.4/1996/50/Add.1 (24 October 1995)

United Nations General Assembly (2002) Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban Declaration) UN Doc A/CONF.189/12 (31 August–8 September 2001)

United Nations High Commissioner for Human Rights (1997a) Resolution 1997/9: Implementation of the Human Rights of Women and the Girl Child UN Doc E/CN.4/Sub.2/RES/1997/9 (22 August 1997)

United Nations High Commissioner for Human Rights (1997b) Resolution 1997/19: Women and the Right to Adequate Housing and to Land and Property UN Doc E/CN.4/SUB.2/RES/1997/19 (27 August 1997)

United Nations High Commissioner for Human Rights (1998a) Resolution 1998/15: Women and the Right to Land, Property and Adequate Housing UN Doc E/CN.4/SUB.2/RES/1998/15 (21 August 1998)

United Nations High Commissioner for Human Rights (1998b) Resolution 1998/51: Integrating the Human Rights of Women Throughout the United Nations System UN Doc E/CN.4/RES/1998/51 (17 April 1998)

United Nations High Commissioner for Human Rights (2000a) 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 UN Doc E/CN.4/RES/2000/9 (17 April 2000)

United Nations High Commissioner for Human Rights (2000b) Resolution 2000/13: Women’s Equal Ownership of, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing UN Doc E/CN.4/RES/2000/13 (17 April 2000)

United Nations High Commissioner for Human Rights (2001) Resolution 2001/34: Women’s Equal Ownership of, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing UN Doc E/CN.4/RES/2001/34 (20 April 2001)

United Nations High Commissioner for Human Rights (2002) Resolution 2002/49: Women’s Equal Ownership, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing UN Doc E/CN.4/RES/2002/49 (23 April 2002)

United Nations High Commissioner for Human Rights (2003a) Resolution 2003/22: Women’s Equal Ownership, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing UN Doc E/CN.4/RES/2003/22 (22 April 2003)

United Nations High Commissioner for Human Rights (2003b) Resolution 2003/27: Adequate Housing as a Component of the Right to an Adequate Standard of Living UN Doc E/CN.4/RES/2003/27 (22 April 2003)

United Nations Sub-Commission on the Promotion and Protection of Human Rights (2003) Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights UN Doc E/CN.4/SUB.2/2003/38/Rev.2

Universal Declaration of Human Rights GA Res 217A (III), UN Doc A/810 (1948)

Books, articles and reports

Agarwal B and Panda P (2003) ‘Home and the world: revisiting violence’ Indian Express 7 August 2003 p 9

Aggarwal A (2003) ‘Women’s right to adequate housing: overview of reports of the Special Rapporteur on adequate housing, of the United Nations Commission on Human Rights’ prepared for the Regional Consultation on the ‘Interlinkages between Violence Against Women and Women’s Right to Adequate Housing’ in cooperation with the UN Special Rapporteur on Right to Adequate Housing, 28–31 October 2003, New Delhi (unpublished)

Aggarwal A (2004a) ‘Homelessness and the UN: role of the Special Rapporteur on Adequate Housing’ 17(1) Parity pp 58–60

Aggarwal A (2004b) ‘The interlinkages between violence against women and women’s right to adequate housing’ January 2004 OMCT Seminar on ‘Violence and Exclusion’ World Social Forum, Bombay

Asia Pacific Forum on Women, Law and Development (2002) Collation of Papers on Intersectionality of Women’s Human Rights APWLD, Chiangmai

Asia Pacific Forum on Women, Law and Development (2003a) Draft Report of the Regional Consultation on the ‘Interlinkages between Violence Against Women and Women’s Right to Adequate Housing’ in Cooperation with the UN Special Rapporteur on Right to Adequate Housing APWLD, Chiangmai

Asia Pacific Forum on Women, Law and Development (2003b) Standpoint Viewpoint: Guidelines for Regional Consultations with the United Nations Special Rapporteur on Violence Against Women APWLD, Chiangmai

Charlesworth H (1995) ‘What are ‘women’s international human rights’?’ in R Cook (ed) Human Rights of Women: National and International Perspective University of Pennsylvania Press, Philadelphia pp 58–84

Charlesworth H, Chinkin C and Wright S (1991) ‘Feminist approaches to international law’ 85 American Journal of International Law pp 613–45

Coalition of Non-Government Workers — Australia (2004) Report to the UN Special Rapporteur on Housing Women and the Right to Adequate Housing in Australia, Sydney

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Farha L (1998) ‘Home is where the hurt is: an economic and social rights perspective on violence against women’ [Online] Available: <www.cohre.org/downloads/BKSPRAPP2.doc> [2004, August 30]

Farha L (2002) ‘Is there a woman in the house? re/conceiving the human right to housing’ 14(1) Canadian Journal of Women and the Law pp 118–41

Forster C, Jalal I, Jivan V and Mehra M (eds) (2003) A Digest of Case Law on the Human Rights of Women (Asia Pacific) APWLD, Chiangmai

Graterol M H (2004) Guidelines for Addressing Intersectional Discrimination International Women’s Rights Action Watch — Asia Pacific [Online] Available: <www.iwraw-ap.org/aboutus/paper11.htm> [2004, August 30]

Kothari M (2003d) ‘Special Rapporteur on Adequate Housing’ presented at the Regional Consultation on the ‘Interlinkages between Violence Against Women and Women’s Right to Adequate Housing’ in cooperation with the UN Special Rapporteur on Right to Adequate Housing 28–31 October 2003, New Delhi (unpublished)

Leckie S (1999) Forced Evictions and Human Rights: A Manual for Action Centre of Housing Rights and Evictions, Geneva

Orford A (1999) ‘Contesting globalisation: a feminist perspective on the future of human rights’ in B H Weston and S P Marks (eds) The Future of Human Rights Transnational Publishers Inc, New York pp 157–85

Orford A (2002) ‘Feminism, imperialism and the mission of international law’ 71 Nordic Journal of International Law pp 275–96

Otto D (1999) ‘A post-Beijing reflection on the limitations and potential of human rights discourse for women’ in K Askin and D M Koenig (eds) Women and International Human Rights Law (vol I) Transnational Publishers, New York pp 115–35

Otto D (2002) ‘“Gender Comment”: why does the UN Committee on Economic Social and Cultural Rights need a general comment on women?’ 14(1) Canadian Journal of Women and the Law, Women and Poverty: The Challenge for Social and Economic Rights pp 1–52

Otto D and Lynch P (2002) UN Special Rapporteur on Adequate Housing: Questionnaire on Women and Adequate Housing: An Australian Submission Homeless Persons’ Legal Clinic — Public Interest Law Clearing House (Vic), Melbourne

Pittaway E (2000) ‘Hidden treasure: an overview of the function of the Special Rapporteur on Violence Against Women — role, responsibilities, and highlights of the term’ presented at the APWLD Consultations with the United Nations Special Rapporteur on Violence Against Women, 18–20 August 2000, Colombo, Sri Lanka (unpublished)

Weissbrodt D and Kruger M (2003) ‘Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’ 97 American Journal of International Law pp 901–23

- Research Associate to the Special Rapporteur on Adequate Housing, conducting research on women and adequate housing. I would like to thank Dianne Otto, who contributed substantially with comments and editing, and Beth Midgley and Emily Chew, who were responsible for the final editing of the article. I am grateful and indebted to them.

[1] For examples of national case law that has applied CEDAW, see Forster et al (2003).

2The right to adequate housing has been identified in the Universal Declaration of Human Rights (art 25) and the Covenant on Economic, Social and Cultural Rights (art 11); everyone has the right to an adequate standard of living, including adequate housing. However, the content of the right to adequate housing, and what actions states are required to take to fulfil this right, are not articulated in the Declaration or Covenant. The term ‘normative content’ is used to refer to substantive development of the right (for example, General Comment 4 by the Committee on Economic, Social and Cultural Rights (CESCR), which elaborates on the normative content of the right to adequate housing).

[3] ‘States Parties shall take 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’ (art 14(2) (h)).

[4] Enable women to obtain affordable housing and access to land by, among other things, removing all obstacles to access, with special emphasis on meeting the needs of women, especially those living in poverty and female heads of household’ (para 58m); ‘Mobilize to protect women’s right to full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources and appropriate technologies’ (para 60f); ‘Undertake legislative and administrative reforms to give women full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources and appropriate technologies’ (para 61b); ‘Enhance, at the national and local levels, rural women’s income-generating potential by facilitating their equal access to and control over productive resources, land, credit, capital, property rights, development programmes and cooperative structures’ (para 166) (UN Beijing Declaration and Platform for Action 1995).

[5] ‘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’ (art 43(1)) (UN Migrant Workers Convention, 1990).

[6] CEDAW art 15 states that:

[1]. States parties shall accord to women equality with men before the law.

2.States parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
3.States parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.
4.States parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.

[7] CEDAW art 16(1)(h) requires state parties to ensure ‘[t]he same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration’.

[8] One exception is the CESCR’s General Comment 7, which notes that: ‘Women, children, youth, older persons, indigenous people, ethnic and other minorities and other vulnerable individuals and groups all suffer disproportionately from the practice of forced evictions. Women in all groups are especially vulnerable given the extent to which statutory and other forms of discrimination 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 forms of discrimination are involved’ (CESCR 1997). Also, the CESCR Committee’s General Comment 12 on the Right to Food refers to the question of women’s equal ownership to land and other property in the context of the right to food (CESCR 1999).

[9] The SRAH has also considered expanding the elements of housing identified in General Comment 4 to include violence against women as a specific element, which would identify issues such as: What forms of violence against women and what threats of violence against women occur as a result of housing violations? How do housing violations make women more vulnerable to violence against women? What kinds of housing violations do victims of violence against women face? Has realisation of the right to adequate housing reduced women’s vulnerability to violence? What strategies have been effective for addressing violence against women related to housing rights violations? (Kothari 2003c).

[10] UNCHR Resolution 1998/51 of 17 April 1998 called for the integration of the human rights of women throughout the United Nations system.

[11] The Commission on the Status of Women recognised women’s right to adequate housing in resolution 42/1 (1998), which ‘urged States to design and revise laws to ensure that women are accorded full and equal rights to own land and other property, and the right to adequate housing, including through the right to inheritance’ (recalled in the UNCHR Resolution 2000/13). But UNCHR Resolution 2000/13 was critical to the formal recognition of women’s right to adequate housing within the UNCHR.

[12] Sub-Commission resolution 1998/15; Sub-Commission resolutions 1997/19 of 27 August 1997, entitled ‘Women and the Right to Adequate Housing and to Land and Property’, and 1997/9 of 22 August 1997, entitled ‘Implementation of the Human Rights of Women and the Girl Child’.

[13] In particular, Leilani Farha, Centre on Housing Rights and Evictions (COHRE), and Habitat International Coalition efforts in this area should be recognised.

[14] Available from <www.unhcr.ch/housing>.

15The Tool Kit was developed by the Housing and Land Rights Committee (HLRC) of Habitat International Coalition (HIC), in conjunction with housing groups in countries all over the world, in order to provide a monitoring and reporting framework on housing rights. The Kit provides a systematic means of evaluating housing rights violations and assessing the impact, using a human rights based approach, that links the local and global analysis. It is intended to be used by community groups, NGOs, individuals, research institutes, human rights monitors etc.
16The elements identified in General Comment 4 are legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy. The additional elements identified by the SRAH are freedom from dispossession, access to information, participation, resettlement and compensation, privacy and security, access to remedies, and education and empowerment.

[17] It was not possible to get accurate statistics on the total number of responses received by the Special Rapporteur on Adequate Housing, to date, to his Questionnaire on Women and Adequate Housing.

[18] In August 2002, the Special Rapporteur had a dialogue with the CEDAW Committee to seek its members’ advice for preparation of this study and to explore cooperation in mutual areas of interest. The dialogue covered a wide range of issues, including the impacts of globalisation and privatisation of services on women’s access to housing and civic services, domestic violence, forced eviction, affirmative action and special measures for women. The Committee highlighted women’s inheritance rights and related customs and practices as requiring particular attention (Kothari 2003a, para 61).

[19] The notion of double discrimination is expanded upon further in this article within the discussion on ‘intersectional discrimination’.

[20] For discussions on the nature of state’s responsibilities for non-state actors and the related principle of due diligence, see Commentary on the Norms 2003; Weissbrodt and Kruger 2003; and Coomaraswamy 1994, paras 99–107.

[21] Organised by APWLD, International Women’s Rights Action Watch-Asia Pacific, Centre on Housing Rights and Evictions (COHRE), and Habitat International Coalition.

[22] See also Leckie 1999.

[23] Line houses are rows of single room accommodation units that are joined in a line. Each family lives in one unit.

[24] Farha (1998) has argued that violations of the right to adequate housing such as forced evictions may be a form of violence against women in themselves on the basis that forced evictions are gender specific (ie during an eviction the perpetrators are almost always men and they use sexual power/violence in committing acts of sexual and gender based violence), have gender specific effects (ie having a disproportionate effect on women as identified above) and are the assertion of the public (ie large scale development) over the private (ie subsistence).

[25] Forty-nine per cent of women who didn’t own their land or house suffered long term physical violence, compared to only 18 per cent of women who owned land, 10 per cent of women who owned their home, and 7 per cent of women who owned both their land and home (Agarwal and Panda 2003).

[26] It should be noted that in these examples specific factors of housing are highlighted in the strategies. But this is on the understanding that the underlying cause of violence is not the kind of housing that women live in, but the patriarchal systems and attitudes in society. Thus, while housing factors such as those mentioned in these examples can be contributing factors, the underlying causes need to be addressed by a range of other mechanisms, including legal, policy and education measures.

[27] The Special Rapporteur on Violence Against Women identified patriarchy as a root cause of violence against women in her 1995 report (para 49): ‘As is stated in the Preamble to the United Nations Declaration on the Elimination of Violence Against Women, violence against women is a manifestation of historically unequal power relations between men and women. Violence is part of a historical process and is not natural or born of biological determinism. The system of male dominance has historical roots and its functions and manifestations change over time’.

[28] It should be noted that the CEDAW Committee recognised violence against women as a form of discrimination in itself in General Recommendation 19.

[29] Para 2: ‘Certain forms of racial discrimination may be directed towards women specifically because of their gender ... Racial discrimination may have consequences that affect primarily or only women ... Women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender-related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life’; para 3: ‘Recognizing that some forms of racial discrimination have a unique and specific impact on women, the Committee will endeavour in its work to take into account gender factors or issues which may be interlinked with racial discrimination’.

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