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IV. The Right to Adequate Housing

 [E]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.52
—Universal Declaration of Human Rights (UDHR)

International human rights law acknowledges the right to housing as an integral component to the right to an adequate standard of living.  The United States has been reluctant to fully embrace the idea of the right to housing and has been inconsistent in its position on this point in international fora.  United States officials have been clear, however, that they do not view public housing as a right.  And there is little sign that officials have acknowledged the fact that access to public housing may be the only realistic way of realizing the right to adequate housing.53 

The UDHR, ratified in the General Assembly of the United Nations in 1948, was the first international document acknowledging the importance of housing to human dignity.54  Numerous international treaties and documents have subsequently acknowledged the right to housing.55  The most important is the International Covenant on Economic, Social and Cultural Rights (ICESCR), entered into force in 1976 and signed by 156 countries to date.56  The ICESCR codifies the right and requires ratifying states to strive to ensure that all their residents have adequate housing.57

Article 11(1) of the ICESCR provides: “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.”58  States parties are required to take “appropriate steps to ensure the realization of this right.”59 

The United States has not ratified the ICESCR.  Nevertheless, as a signatory it is bound not to undertake policies or practices that would defeat the covenant’s object and purpose.60 

The most comprehensive recent international affirmation of housing rights and state housing responsibilities is the 1996 Istanbul Declaration, and the accompanying “Habitat Agenda.”61  The Habitat Agenda contains over one hundred commitments and six hundred recommendations on human settlements and housing concerns.62  The preamble to the Agenda reaffirms signatories’ commitment “to the full and progressive realization of the right to adequate housing”63 and pledges to “work to expand the supply of affordable housing . . . and assisting those who are unable to participate in housing markets.”64

The Declaration, though not a binding treaty, was signed by 171 countries, including the United States.  But some who observed the proceedings described a considerable amount of resistance on the part of U.S. delegates to the notion of housing as a right.  Indeed, as Philip Alston describes, during preparatory meetings leading up to the conference:

The United States delegation insisted that there is no human right to adequate housing, that this right is not recognised in international human rights law and that the right has never been recognised in international treaties. The delegation indicated that it attached great importance to this issue, that it would call for a vote upon any paragraph which included a reference of any type to the right to housing, and that the United States would vote against the inclusion of any such reference.65

The U.S. had changed its position by the time of the conference and signed the Declaration despite the inclusion of language specifically noting a right to housing.66  But, as Alston notes, “[i]n place of outright opposition came a statement with enough nuances, convolution, and circumlocution as to enable both supporters and opponents of the right to housing to claim victory on the basis of the same text.”67 

In 2001, however, the Bush administration reaffirmed its promise to fulfill the Agenda’s mandate,68 and submitted a seventy-page report69 to UN-Habitat, the U.N. agency that monitors compliance with the Agenda.70  While the report acknowledges homelessness and the shortage of affordable housing in the U.S., it does not refer in any way to public housing exclusionary policies or their impact. 

Experts charged with interpreting the right to housing have attempted to clarify what adequate housing means in the context of disparate national resources.  There is a general recognition, however, that the right to housing means the “right to live somewhere in security, peace and dignity.”  The Committee on Economic, Social, and Cultural Rights (CESCR) noted that:

[T]he right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. . . . Adequate shelter means adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities—all at a reasonable cost.71

We have not attempted in this report to assess whether life in single room occupancies (SROs), transient motels, or shelters satisfies the minimum standards of decent housing.72  What is clear is that people who are forced to move day to day, or even month to month, from motel to shelter to the couch of a relative do not have access to the stability that is inherent in the right to housing. 

If the right to housing means anything, it means that one should not have to be homeless.  It also means, at a minimum, that governments should avoid policies that predictably increase homelessness or that reduce affordable housing opportunities that previously existed.73  Rajindar Sachar, the U.N. special rapporteur on the right to adequate housing, has noted that governments infringe that right if they adopt policies that “result in homelessness, greater levels of inadequate housing, [or] the inability of persons to pay for housing  . . . [.]”74  Yet between 1988 and 1998, with its public housing exclusionary policies, the United States deliberately removed affordable housing options that had previously been available to low-income people with criminal records. 

The extent of homelessness in the United States, estimated at 2.5 to 3.5 million a year, certainly raises serious questions about the meaning of a right to housing in the United States.75  The causes of homelessness are many, and not all can be placed at the feet of the federal government.  But an estimated half of those who are homeless on any given night have criminal records.76  And with regard to them, the government’s exclusionary policies have clearly played a devastating role that directly undermines their right to housing.

Human rights law does not preclude public housing authorities from establishing criteria for admission.  But those criteria should not be unreasonable or discriminatory.77  Moreover, given the nature of the existing housing market and the high cost of private housing, public housing admissions policies should not have the effect of denying people any realistic opportunity of finding safe and stable housing.  They should not undermine, much less negate, the right to adequate housing.



[52] UDHR, G.A. Res. 217, U.N. GAOR, 3rd Sess., pt. 1, art. 25(1), U.N. Doc A/810 (1948).

[53] “Public housing has never been a right, it has always been a privilege.” President Bill Clinton, “Remarks by the President at One Strike Symposium.” See also, The White House, Office of the Press Secretary, “Press Briefing by Secretary of Housing and Urban Development Henry Cisneros,” March 27, 2003, available online at:  http://clinton6.nara.gov/1996/03/1996-03-28-cisneros-briefing-on-public-housing-policy.html, accessed on February 4, 2003.  Then-Missouri Senator John Ashcroft, now the U.S. attorney general, stated on the floor of Congress that exclusionary provisions were not only designed to ensure public safety, but also to “emphasize that federal housing assistance is a privilege, not a right.” Senator John Ashcroft, 144 Cong. Rec. S. 8330, 8367, 105th Congress, 2nd Sess. (July 16, 1998).  Consequently, the U.S. does not acknowledge that laws or policies that restrict access to housing must be justifiably reasonable in light of legitimate state goals, and it does not hold itself to the proscriptions against discriminatory effect embodied in international law.

[54] UDHR, G.A. Res.217A (III) art. 25(1), U.N. Doc. A/810 (adopted December 10, 1948).

[55] See also, article 5 (e) (iii) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 660 U.N.T.S. 195, U.N. Doc. A/32/18 (entered into force January 4, 1969); article 14(2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1249 U.N.T.S. 13, U.N. Doc. A/34/46 (entered into force September 3, 1981); article 27 (3) of the Convention on the Rights of the Child (CRC), G.A. Res. 44/25, U.N. Doc. A/44/49, (entered into force September 2, 1990).  See, e.g., Declaration on Social Progress and Development  G.A.R. 2542 (XXIV), U.N. Doc. A/RES/41/146 (December 11, 1969), Part II, Art. 10(f); Resolutions on the realization of the right to adequate housing: G.A. Res. 41/146, U.N. Doc. A/RES/41/146 (December 4, 1986); G.A. Res. 42/146, U.N. Doc. A/RES/42/146 (December 7, 1987); Economic and Social Council Res. 1987/62 (May 29, 1987); Commission on Human Rights Res. 1986/36 (March 12, 1986); Commission on Human Rights Res. 1987/22 (March 10, 1987); Commission on Human Rights Res. 1988/24 (March 7, 1988); Resolutions on Forced Evictions: Commission on Human Rights Res. 1993/77 (March 10, 1993); Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1991/12 (August 26, 1991); Resolution on the human right to adequate housing: Commission on Human Settlements Res. 14/6 (May 5, 1993); Resolution on promoting the realization of the right to adequate housing: Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1991/26 (August 29, 1991).

[56] As of June 9, 2004, 149 countries of the 156 that had signed, ratified the Covenant.

[57] International Covenant on Economic, Social and Cultural Rights (ICESCR), 993 U.N.T.S. 3, art. 11(1), U.N. Doc. A/6316 (entered into force January 3, 1976).

[58] Ibid.

[59] Ibid.

[60] See Vienna Convention on the Law of Treaties, art. 18, concluded May 23, 1969, 1155 U.N.T.S. 331 (entered into force January 27, 1980).  Although the United States has signed but not ratified the Vienna Convention on the Law of Treaties, it regards this convention as "the authoritative guide to current treaty law and practice."  S. Exec. Doc. L., 92nd Cong., 1st Sess. (1971), p. 1; Theodor Meron, “The Meaning and Reach of the International Convention On The Elimination Of All Forms Of Racial Discrimination,” 79 Am. J. Int’l Law 283, 285 (1985).

[61] These documents emerged from the U.N. Conference on Human Settlements in Istanbul, known as Habitat II, an international conference on housing and human settlements in 1996 in Istanbul, Turkey.  Habitat II followed an earlier conference, Habitat I, held in Vancouver in 1979. For more information and discussion on the various international conferences discussing housing rights see Habitat II and U.S. Implementation: Background and Overview, National Law Center on Homelessness & Poverty, available online at: http://www.nlihc.org/mahn/habitat.htm, accessed on June 12, 2004.

[62] The Habitat Agenda is the official document of the 1996 United Nations Conference on Human Settlements in Istanbul, Turkey.  The document is available online at: www.unhabitat.org/unchs/english/hagenda/ist-dec.htm, accessed on August 6, 2004.

[63] Ibid., para. 8.

[64] Ibid., para. 9.

[65] Phillip Alston, “The U.S. and the Right to Housing: A Funny Thing Happened on the Way to the Forum,” European Human Rights Law Review , vol. 1, no. 2 (London: Sweet & Maxwell, 1996).  Alston wrote extensively on the efforts of the U.S. to limit the language of rights in the Habitat Agenda.  He noted that:

At the Nairobi [Preparatory Committee] it succeeded, not quite but almost singlehandedly, in having every provision in the draft Habitat II documents which had referred to the right to housing either deleted or placed in square brackets (used in such international diplomatic negotiations to denote a strong objection and to underline the lack—be it temporary or permanent—of the consensus assumed to be necessary in order to secure inclusion of the relevant provision in the final text).

Ibid. p. 127

[66] The U.S. delegate thus addressed the opening session of the conference: “[M]y delegation comes to this historic Conference to reaffirm the existence of the right to adequate housing as a component of existing human rights.”  Honorable Michael A. Stegman, alternate head of the U.S. Delegation, “Statement at the Opening Plenary of the United Nations Conference on Human Settlements” (HABITAT II) (June 3, 1996).

[67] Alston writes:

[I]n essence, the new position [of the United States] consists of three elements: (a) acceptance that the right to an adequate standard of living is "universally accepted"; (b) a belief that "the issue of housing rights is best pursued" in the context of that broader formulation; and (c) insistence that the "basic components of the shelter aspect of the right to an adequate standard of living" conveniently mirror existing United States domestic policies with their twin anti-discrimination and free market emphases.

Alston, “The U.S. and the Right to Housing,” p.121.

[68] “Statement of Mel Martinez, Secretary, United States Department of Housing and Urban Development,” Special Session of the General Assembly for an Overall Review and Appraisal of the Implementation of the Habitat Agenda, June 7, 2001, available online at: http://www.un.int/usa/01_080.htm, accessed on July 10, 2003.  Secretary Martinez deftly avoided mention of a right to housing, stating instead: “[m]y country shares with you a commitment to the ‘fair idea’ of secure, safe, and adequate housing for all.” 

[69] U.S. Department of Housing and Urban Development,Office of Policy Development and Research, United States-Habitat II: Progress Report, June 2001, available online at: http://www.huduser.org/Publications/pdf/habitat.pdf, accessed on July 14, 2003. 

[70] For more information on UN-HABITAT’s mandate see: http://www.unchs.org/unchs/english/whdbro.htm.

[71] Committee on Economic, Social and Cultural Rights, General Comment No. 4, para. 7.

[72] Ibid., para. 8 sets forth seven core principles embodied in the right to housing, including legal security of tenure, availability of services, resources and infrastructure, affordability, habitability, accessibility, location, and cultural adequacy.

[73] The Committee on Economic, Social and Cultural Rights, the U.N. body that is the authoritative interpreter of the Covenant, has elaborated the article 2 requirement that states parties take steps “to the maximum of its available resources” with a view towards “achieving “progressively” the Covenant’s rights.  In explaining what “progressive realization” entails, the Committee has said, “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.” Committee on Economic, Social and Cultural Rights, General Comment No. 3, para. 10 (emphasis added). “Progressive realization” also means, at minimum that “any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” Ibid., para. 9.

[74] Rajindar Sachar,1993 Special Rapporteur’s Report, UN Doc. E/CN.4/Sub.2/1993/15, para. 144.

[75] “The plea of lack of resources sounds hollow,” said Mr. Sachar in a 1995 report, “in view of the finding of the United Nations Development Programme in 1992 that only a 3 percent reduction in worldwide arms expenditure per year during the 1990s would make available by the year 2000 an amount of US $1.2 trillion for the industrialized countries and an amount of $279 billion for the developing countries.”  United Nations Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, The Realization of Economic, Social and Cultural Rights: The Right to Adequate Housing, Final Report Submitted by Mr. Rajindar Sachar, E/CN.4/Sub.2/1995/12, p. 6, para. 16 (July 12, 1995).

[76] According to one HUD estimate, 54 percent of the homeless have criminal records.  HUD, Homelessness: Programs and the People they Serve, Interagency Council on the Homeless, ed. (December 1999), table 3.6, available online at:  http://www.huduser.org/publications/homeless/homelessness/ch_3c.html#table3.6, accessed on August 6, 2004. While these numbers have been used to provoke fear of the criminal homeless population, HUD estimates that only 18 percent of the homeless have ever spent time in state or federal prison for a serious offense.  Comprehensive statistics on those released from prisons and jails without adequate housing do not exist, but it is estimated that 15 to 27 percent of all prisoners go to homeless shelters upon release.  H.R. 4676, the Second Chance Act of 2004, Section 2(15). 

[77] The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), UN Doc. E/CN.4/1987/17, were written by a group of distinguished international law experts and serve as guidance to nations interpreting the ICESCR.  Article 4 of the Limburg Principles states: “Laws imposing limitations on the exercise of economic, social and cultural rights shall not be arbitrary or unreasonable or discriminatory.” 


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