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Violation of Right to Shelter and Homeless People in Chattogram City

Akademische Arbeit 2018 27 Seiten

Politik - Internationale Politik - Thema: Völkerrecht und Menschenrechte

Leseprobe

Contents

Introduction

Objectives of the Paper

Definition and Discussion

Minimum Core Obligations

Domestic Laws of Bangladesh on Right to Shelter

International and Foreign Laws on Right to Shelter

Right to Shelter in Chattogram

Present Scenario in Bangladesh and Abroad

Reasons for Homelessness

Problems Arising from Homelessness in Chattogram

Findings from the Research

Recommendations

Conclusion

Introduction

The government of Bangladesh has changed the English name of its second largest city from Chittagong to Chattogram, in line with how locals pronounce and write the name in Bengali.[1] The city has a population of more than 2.5 million while the metropolitan area has a population of 4,009,423 at the 2011 Census, making it the second largest city in the country.[2]

The continuous migration of rural people in Chattogram city has added significant pressure to its already overstretched infrastructure. As migrants pour into the city, they often settle in illegal settlements on marginal pieces of land which pose significant environmental concerns. The difference between right to housing and right to shelter is that even a tent can be a shelter, not necessarily it has to be a house as a shelter, from which homeless people are deprived of.

UN-Habitat reports that around 2 million people, most of them slum-dwellers, are forcibly evicted every year. The effects of forced evictions on slum-dwellers are often disastrous, leaving them homeless and forcing them deeper into poverty.[3] The advancement of human and housing rights competes with pressures for profits, market competitiveness, efficiency and cost-effectiveness in the neo-liberal climate.[4] Protecting and promoting the rights of people who are homeless or at risk of homelessness is not just about providing adequate housing. It is also about understanding and addressing the complex range of factors that lead to homelessness and protecting the dignity of all people, including those who are homeless.

A National Housing Policy was formulated in 1993 in Bangladesh, and pro-poor agenda was included in it in 1999. The policy was further revised in 2004, but till 2007 remained to be approved due to various deadlocks arising out of the volatile political situation in Bangladesh (Islam, personal interview, 2007).There is a national housing policy which was approved in 2016, but it is not being implemented properly, said noted urban planning expert Prof Nazrul Islam. A vision is necessary for a coordinated and planned urbanization across the country, said Prof Nazrul, chairman of Centre for Urban Studies.[5] It is yet to be seen how much of the policy is translated into the ground and whether it can bring about any significant change for the urban homeless people in Chattogram city.

Objectives of the Paper

1) To identify shelter-related problems of homeless people in Chattogram city.
2) To highlight major governance issues for Right to Shelter for the homeless people in Chattogram city encompassing the involved institutions, actors, linkages and instruments so as to implement those policies.
3) To determine government responsibility to the homeless people of Chattogram city.
4) To find a feasible way for the realization of Right to Shelter of the homeless people in Chattogram city in the present economic condition of Bangladesh.
5) To determine whether the Right to Shelter is justiciable or not and whether the Government can be compelled to implement.

Definition and Discussion

The right to housing is the economic, social and cultural right to adequate housing and shelter. It is recognized in many national constitutions and in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights.

Under most constitutions, however, housing is classified under state policy and not as part of a bill of rights.[6] The right to housing is a basic human right. This has been established in a range of international human rights instruments and is regularly monitored at United Nations (UN) and Council of Europe level. Homelessness is about the absence or denial of housing rights. Aspects of the right to housing are regularly adjudicated upon in courts throughout the world. At a national level, at least 40% of the world’s Constitutions refer to housing or housing rights.[7]

For the United Nations Special Rapporteur on the Right to Adequate Housing, Miloon Kothari, “the human right to adequate housing is 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.”[8]

Article 25 of the Universal Declaration of Human Rights (UDHR) recognizes the right to housing as part of the right to an adequate standard of living. It states that:

“Everyone 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.”

Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) also guarantees the right to housing as part of the right to an adequate standard of living.[9]

The United Nations Committee on Economic, Social and Cultural rights has highlighted and elaborated on particular aspects of the right to adequate housing. These include: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.[10]

There are many other examples of the right to adequate housing in other international treaties, such as the Convention on the Rights of the Child (Article 16 and 27), the Convention on the Rights of Persons with Disabilities (Article 9 and 28), the Convention on the Elimination of All Forms of Discrimination against Women (Article 14 and 15), among others.[11] More than 50 national constitutions contain various formulations of housing rights and governmental obligations in the sphere of housing.[12]

The Special Rapporteur of UN on adequate housing has called homelessness “perhaps the most visible and most severe symptom of the lack of respect for the right to adequate housing.” There is no internationally agreed definition of homelessness. Definitions range from the narrow—equating homelessness with “rooflessness”—to the broad, based on the adequacy of the dwelling, the risk of becoming homeless, the time exposed to homelessness and responsibilities for taking alleviating action. For statistical purposes, the United Nations has defined homeless households as “households without a shelter that would fall within the scope of living quarters. They carry their few possessions with them, sleeping in the streets, in doorways or on piers, or in any other space, on a more or less random basis.” The Special Rapporteur on adequate housing has noted that narrow definitions are inadequate and that in developing countries the most common definitions recognize that an element of social exclusion is part of the experience of the homeless.[13] UN-Habitat underlines in this respect that homelessness implies belonging nowhere rather than simply having nowhere to sleep. Given the lack of a globally agreed definition of homelessness, limited data are available about the scale of this phenomenon, which in turn impedes the development of coherent strategies and policies to prevent and address it.[14]

Human rights are interdependent, indivisible and interrelated. In other words, the violation of the right to adequate housing may affect the enjoyment of a wide range of other human rights and vice versa. Thus, in their article, Philip Lynch and Jacqueline Cole assert: “homelessness is in itself a human rights violation. We argue that homelessness constitutes an infraction of such fundamental human rights and dignities as the right to security of the person, the right to be free from cruel, inhumane or degrading treatment or punishment, the right to freedom from discrimination, the right to privacy, the right to freedom of expression, the right to freedom of association, the right to vote, the right to social security, the right to health and, of course, the right to adequate housing.[15]

Successful litigation of the right to housing generally results in a heightened level of enjoyment, enforcement or realization of that right. This may occur through, amongst other things, changes in either the law or administrative/social policy, the way in which a particular law or policy is applied, or an increase in state provision (financial or otherwise) for housing rights. Litigation may also have indirect effects. For instance, where a decision is a ground-breaking legal precedent but is poorly implemented, it may serve as a useful foundation for subsequent cases which are more successful in terms of implementation.[16] The right to housing imposes both negative and positive obligations. The duties encompassed by the right are often expressed as the obligations to respect, protect and fulfill. The obligation to respect is generally negative, while the obligations to protect and fulfill are generally positive.The obligation to respect requires states to refrain from interfering with housing rights. Thus, states are prohibited from interfering with the enjoyment of the right to housing of an individual or groups by carrying out forced evictions. In addition, there have been challenges in relation to governmental failures to entrench the various substantive and procedural rights associated with the duty to respect housing rights in law and in practice.[17] Of course, decisions in which the courts uphold housing rights may also have negative indirect effects in terms of the enforcement of those rights. These could include the government being spurred on to enact a change in the law or to call a constitutional referendum so as to reverse or frustrate the court’s ruling. Alternatively, a decision could give rise to a backlash from politicians or more conservative societal factions. Finally, there may be incidences in which the courts themselves become less willing to adopt a positive approach towards the enforcement of housing rights in the face of, for example, a series of cases from a particular group or focusing on a particular housing rights-related issue.[18]

Adequate housing, as defined under international law, is “the right of every woman, man, youth and child to gain and sustain a safe and secure home and community in which to live in peace and dignity.” This right is so much more than simply four walls and a roof over your head. [19]

In several of his reports, the Special Rapporteur on the Right to Adequate Housing has also insisted on the prohibition of forced evictions and on the obligation to help the homeless.[20]

While acknowledging that social, economic, cultural, climatic, ecological and other factors, in part, determine adequacy, the CESCR identified the following as essential components of adequacy (para. 8):

- Legal security of tenure
- Availability of services, materials, facilities and infrastructure
- Affordability
- Habitability
- Accessibility
- Location
- Cultural adequacy

It stated that, regardless of their level of development, states must take certain steps immediately to guarantee the right. One such step is monitoring to ascertain the full extent of homelessness and inadequate housing within its jurisdiction (para. 10).[21]

The right to adequate housing is much more than the physical structure of the house. Adequacy is determined by social, economic, and cultural elements, as well as several specific factors:

- Security of tenure: Regardless of the type of tenure (lease; cooperative housing; emergency housing, etc.), everyone possesses a level of security of tenure which legally protects against forced eviction, harassment, or other intimidations.
- Availability of services, materials, facilities and infrastructure: Adequate housing must contain the means necessary for health, nutrition, security and comfort. This includes access to safe drinking water, heating and lighting, sanitation facilities, food storage, site drainage, energy for cooking and access to emergency services.
- Affordability: The financial cost of housing should not be so high that it threatens the attainability of other fundamental rights and needs. Everyone has the right to be protected by appropriate means against unreasonable rent prices or increases.
- Habitability: Housing must be livable in terms of protection from cold, damp, heat, rain, wind and other potential threats to health and wellbeing. It also must have sufficient space for living.
- Accessibility: housing must accommodate the special needs of disadvantaged groups such as the elderly, the terminally ill, people with physical or mental disabilities, and people with persistent medical problems.
- Location: Housing must be in a location which has access to healthcare services, schools, employment possibilities and other social services. Housing should not be built in polluted areas that threaten the health of inhabitants.
- Cultural adequacy: the construction of housing (including building materials and method) must take cultural identity and diversity into account.

In addition to the international treaties that highlight the importance of the right to adequate housing, there is an expert who is specially-appointed by the United Nations Human Rights Council known as the Special Rapporteur on Adequate Housing. The Special Rapporteur is responsible for globally monitoring the status of adequate housing, responding to complaints about alleged violations and representing the United Nations while visiting countries around the world.[22] There is a document on the right to adequate housing that was created by the Office of the United Nations High Commissioner for Human Rights to elaborate on the right, including the obligations on governments, the link between housing and other human rights, and accountability mechanisms.[23]

Minimum Core Obligations

It is important first to lay down the meaning of minimum core obligations under international law as provided in General Comment 3 of the CESCR. General comment 3 in detail elaborates the nature of state parties’ obligations that is provided in Article 2(1) of the ICESCR. The Committee stated that thorough extensive experience gained through the examination of state reports;

“...a minimum core obligation to ensure the satisfaction of, at the very least minimum essential levels of each of the rights is incumbent up on every state party. Thus, for example, a state party in which any significant number of individuals is deprived of essential food stuffs, 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.”

Minimum Core Obligations are initial, immediate obligations of a country, after which it must take steps to progressively realize all human rights for everyone. Accordingly, at the heart of the concept of minimum core obligations is the establishment of a prima facie violation of the covenants obligations by a state party who fails to fulfill the minimum core. It has a tremendous probative role in terms of putting enormous burden on the state to prove the failure of the state to fulfill its minimum core obligations. It thus shifts the burden of proof from the applicant who alleges the violation of his rights to that of the state. The significance of the minimum core obligations cannot be overemphasized. The minimum core is an essential element of any right without which the right risks losing its substantive significance as a right. It provides a minimum threshold below which standards should not fall. The ICESCR itself has interpreted the minimum core as a presumptive legal entitlement, a non-derogable obligation and an obligation of strict liability.[24]

One of the most difficult tasks of the articulation of the minimum core obligation has been determining their content. Although the CESCR has stated that the fulfillment of minimum core obligations of essential food stuffs, essential primary health care, basic shelter and housing or the most basic forms of education is incumbent on all states, it has not yet come up with sufficient standards to provide definitive benchmarks for the content of these rights. Most of the endeavor for establishing the minimum core, however, has been more theoretical than practical. Young’s approach encompassing international, regional and national jurisprudence and scholarly works demonstrates three approaches to understand the notion of the minimum core. The First approach- essence approach, tries to locate the minimum content of a right relating it with the protection of liberal values such as dignity, equality and freedom and the basic needs of survival. The consensus approach locates the minimum core in the minimum consensus reached with respect to socio-economic rights. Lastly, the obligations approach seeks to situate the minimum content of a right in terms of the obligations raised by the right rather than the right itself.[25]

Domestic Laws of Bangladesh on Right to Shelter

A notable judgment in a suit of 1999 by the High Court Division of the Supreme Court of Bangladesh decreed eviction as unlawful unless resettlement options were provided (Shafi, 2006; BURT, 2005a). This judgment has been a starting point for advocacy by pro-poor lobbyists and in some cases has allowed preventing evictions.[26] This suit was Ain o Salish Kendra (ASK) v Government and Bangladesh & Others 19 BLD (1999) in which Residents and public interest organizations challenged slum demolition by government authorities; court held that eviction deprives residents of means of livelihood and consequently right to life and there are obligations to provide natural justice before eviction. Although resettlement was recommended by the court but the court also held that it can’t be claimed as a right.[27]

The Constitution of the People’s Republic of Bangladesh states in Article 15 [a ] that: It shall be a fundamental responsibility of the state of attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens:

[A] The provision of the basic necessities of life, including food, clothing, shelter, education and medical care. It is expected that provisions are made to ensure that people, especially the poor and under able, those who are forcibly made to migrate to cities because to natural calamities or through the absence of economic opportunities in their village are able to build their own homes and have security of tenure.

The Constitution clearly states in Article 11 [Democracy and Human Rights ] that, “the republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed…”

The whole process of forced evictions violated this fundamental principle. The people were not treated with dignity and respect. They did not receive written legal notices, nor were they given proper explanations. When people challenged these orders they were met with abuse and beatings. In so doing, the Home Ministry, the police and other public servants have ignored and violated Article 21 [2] of the Constitution which states:

[2 ] Every person in the service of the republic has a duty to strive at all times to serve the people.Article 15 of the Constitution of Bangladesh states that the Government has a responsibility to provide access to basic necessities including shelter. Article 31 and 32, which protect the right to life, have been interpreted by the High Court to include and incorporate the right to livelihood and accordingly the right to shelter. While the Government does not have the responsibility to immediately provide shelter to all persons, it does have a responsibility to ensure that citizens are not arbitrarily or forcibly evicted.[28]

The National Housing Policy of Bangladesh 1993 states that:

Housing is one of the three basic primary needs of man [and women], and is as important as food and clothing. It provides shelter, safety and a sense of belonging to the owner. The government recognizes the distressing of the slum dwellers to urban economic growth. It also acknowledges the aggravation of health problems of residents and those in adjoining areas due to the poor environmental conditions in slums and squatter settlements.

The policy document also recognizes that the state should avoid forcible relocation for displacement of slum dwellers as far as possible. It reiterates protection against forced eviction in Paragraph 5.7.1 of the Policy which states:

“The government would take steps to avoid forcible relocations or displacement of slum dwellers as far as possible…..encourage in situ upgrading, slum renovation and progressive housing developments with conferment of occupancy rights, wherever possible and to undertake relocation with community involvement for clearance of priority sites in public interest.”

The 1999 National Housing Policy prepared by the Ministry of Land has further recommended:

1) To increase availability of roads and other basic infrastructure for populations of different income levels, particularly the poor;
2) To facilitate the purchase of land by the poor in locations which are near the place of work and where communication is easy and inexpensive.
3) To set up “urban land banks” on khas land, banks of dry rivers;
4) To set up a system for easy loans through family or community savings, to remove barriers for housing, mainly for poor thorough non-formal micro-credit schemes
5) To arrange housing credit programs though public and private sector. The Government will set up a housing fund and loans will be available to NGOs and credit agencies and financial institutions for distribution to cooperatives, community associations, registered companies, private development agencies for disbursement for low-cost housing through the local government
6) To develop housing for authorized urban settler in their present location, and if their land is needed for other purposes, to relocate them elsewhere;
7) To provide drinking water, sanitation, and welfare services;
8) To promote participation of residents in maintaining community facilities, social physical infrastructure;
9) To facilitate provision of sanitation, water and night shelters for pavement dwellers and the homeless.

It is evident that these schemes; implemented and proposed did not take into account of the huge number of people who were actually displaced or made shelterless through evictions.[29] It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.[30]

International and Foreign Laws on Right to Shelter

The international law definition of ‘ homelessness ’ developed by the United Nations Committee on Economic, Social and Cultural Rights (‘CESCR’) which provides, in effect, that a person is homeless unless he or she has adequate housing that affords the right to live in security, peace and dignity.[31]

Human rights approaches arising from internationally agreed instruments can influence the way in which States assist homeless people, in the face of other competing influences.[32] Consideration has been given to administrative approaches such as action plans, indicators and benchmarks within human rights approaches, and in terms of housing rights.[33]

The right to adequate housing is one of the economic, social and cultural rights to have gained increasing attention and promotion, not only from the human rights bodies but also from the United Nations Centre for Human Settlements (Habitat). This began with the implementation of the Vancouver Declaration on Human Settlements issued in 1976, followed by the proclamation of the International Year of Shelter for the Homeless (1987) and the adoption of the Global Strategy for Shelter to the Year 2000, by the United Nations General Assembly in 1988. The International Year of Shelter for the Homeless in 1987 facilitated the raising of public awareness about the housing and related problems still prevalent throughout the world. The follow-up to the Year, the Global Strategy for Shelter to the Year 2000 has propelled housing issues forward, and has resulted in housing rights being placed more prominently than ever before on the human rights agenda of the United Nations.[34]

A person who is homeless may be facing violations of the right to an adequate standard of living, the right to education, the right to liberty and security of the person, the right to privacy, the right to social security, the right to freedom from discrimination, the right to vote and many more. These human rights are protected by a number of international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC).[35]

The Right to Housing is protected in:

- Article 25 of the Universal Declaration of Human Rights
- Article 11 of the International Covenant on Economic, Social and Cultural Rights
- Article 27 of the Convention on the Rights of the Child
- Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination
- Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women
- Article XI (11) of the American Declaration on Rights and Duties of Man

There are also United Nations committees (“treaty bodies”) made up of experts that oversee the implementation of particular human rights treaties. These committees oversee the treaties by, among other things, receiving government reports on the implementation of the treaties, making comments to the government reports, and issuing general comments about the treaties or specific rights contained therein.[36] Under most constitutions, however, housing is classified under state policy and not as part of a bill of rights.[37]

As regards the international level, the minimum core content of housing rights should be fulfilled despite the reference of the state to the inadequacy of resources. However, this content of housing rights may differ depending on the circumstances and locations. Before the Council of Europe bodies, the variety of the case subject matters suggests the interaction of different human rights to secure the right to housing. The right is rather seen through the concept of home than property which attaches the right a human dimension. Within the EU the right to housing has never been among the legislators’ competences due to the ‘Subsidiarity Principle’. Only recently housing assistance principle had been acknowledged as a part of the EU founding treaties. Nevertheless, more clarification is extremely needed. Meanwhile, some countries have found their way to safeguard the right to adequate housing. The Dutch system has taken steps within its economic resources to ensure comprehensive implementation of the right; while South Africa delegates to the Constitutional Court to secure greater constitutional rights to adequate housing and protection against arbitrary evictions.[38]

The Supreme Court of India has declared that ‘the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter’.[39]

Some regional treaties also recognize the right to adequate housing per se: The European Social Charter.

The European Social Charter (1961, revised 1996)

The European Social Charter, revised in 1996, explicitly protects the right to adequate housing. Article 31 provides that:

“With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: 1. to promote access to housing of an adequate standard; 2. to prevent and reduce homelessness with a view to its gradual elimination; 3. to make the price of housing accessible to those without adequate resources.”

The European Social Charter (revised) is currently binding for the 24 states that have ratified it.[40]

The United Kingdom adopted a housing law in 1977 - the Housing Act - which applies to Scotland. This law obliges municipal authorities to loge the homeless who have a link with the municipality and who find themselves homeless independent of their own will. Wanting to expand on this, Scotland adopted its own housing law in 1987 and its own law on homelessness in 2001. The criterion of a link with the community was abandoned in the 2001 law, which obliges the municipalities to assist any person legally in the country who is in need. The Scottish legislation was considerably improved in 2003, when the Scottish parliament adopted the law on the inadequately housed or homeless and set out to program the eradication poor housing by 2012.[41]

In South Africa, section 26 of Chapter Two of the Constitution establishes that "everyone has the right to have access to adequate housing". The Department of Human Settlements is tasked with implementing this mandate.[42] The 1996 Constitution of the Republic of South Africa, which expressly guarantees the right to adequate housing and prohibits the practice of forced eviction. The Constitution provides that:

1. Everyone has the right to have access to adequate housing.

2. The state must take reasonable legislative and other means, within its available resources, to achieve the progressive realization of this right.

3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Cases have also been pursued in the courts of the United States, where public authorities have been obliged to guarantee decent shelter to all the homeless who request it. In one case before the New York Supreme Court in 1979, the Court recognized that the constitution and the social services law of the state of New York guaranteed decent shelter to everybody in need. The Court found that this right implied an obligation for the City of New York to provide these shelters in sufficient numbers.[43] Recent housing rights movements in the U.S. have awakened Americans' legal consciousness regarding the efficacy of an American constitutional right to housing. While these social moments inevitably face a backlash and counter-mobilizations, they have undeniably capitalized on the U.S. housing crisis to help Americans consider and embrace a broader range of housing tenures and entitlements for the homeless and the dispossessed. It is unclear if national and state decision-makers will embrace these movements' local property reformulations. It is also not clear if the local shifts in American popular understandings of how housing entitlements should be distributed consistent with constitutional norms will be sustained as the housing market slowly recovers. Yet, these movements' "bottom-up" approach to constitutional creation through local democratic instantiation, facilitated by the Internet, has implications for the evolution of American constitutional law and property law in the Internet age. These movements' successes foreshadow new ways social movements can increase Americans' acceptance of social and economic rights, such as education, health care, and work. Lastly, these developments also have implications for how scholars should understand the role of law in social movements. Private ordering and local law may come to play a greater role in multidimensional social movement advocacy. In the meantime, recent U.S. housing rights movements are occupying the legal meaning of an American constitutional right to housing by reformulating local property and housing entitlements to advance equity and other well-accepted constitutional norms.[44]

The case of Connors v. UK involved the eviction of gypsies from a halting site by a local authority in a situation in which the applicant was accorded no means of challenging allegations made against him as part of the eviction process. The European Court of Human Rights found that, “the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a ‘pressing social need’ or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention”. Litigation has also been brought where proceedings have been taken by the state seeking to evict people who would be left homeless if evicted. In these cases, the courts have had to consider the obligation on the state to respect the right to housing in deciding whether to order an eviction, and if so ordering, when and under what circumstances the eviction may take place.[45]

The obligation to protect requires states to take measures that prevent third parties from interfering with the enjoyment of such rights. One example of this duty is the obligation on states to prohibit and prevent discrimination in the private housing sector. Another is the duty of governments to prevent and provide legal remedies for the violation of any individual’s right to housing by any other individual or non-state actor, including landlords, property developers, and land owners. With regard to the duty to protect, government have been challenged for colluding with or failing to restrain non-state actors in violating housing rights. Such a situation arose to be considered by the Committee against Torture in Hijirizi et al v . Yugoslavia.[46] The communication alleged that a non-Roma mob set fire to a Roma settlement, destroying it completely. Police amongst the mob made no effort to halt the violence even thought they were forewarned by the victims. Investigations into the incident were discontinued due to “lack of evidence” and Yugoslavia failed to provide redress and compensation to the victims.[47] A majority of the Committee found, inter alia, that the failure of the state to provide protection violated Article 16(1) of the Convention Against Torture, which obliges States Parties to prevent acts of cruel, inhuman or degrading treatment that do not amount to torture and are committed by or at the instigation of or with the consent or acquiescence of a person acting in an official capacity. In a context of increasing globalization, the duty to protect is growing in importance. Government duties in the context of privatization to ensure access to and affordability of housing are likely to be the subject of increasing litigation and judicial attention.[48]

The Maastricht Guidelines , established some ten years after the Limburg Principles , set out a range of remedies for violations of socio-economic rights. The Guidelines point out that violation of economic, social and cultural rights can occur through the direct action of States or other entities insufficiently regulated by States. The Maastricht Guidelines emphasize that responsibility for these violations are in principle imputable to the State within whose jurisdiction they occur. As a consequence, the State responsible must establish mechanisms to correct such violations, including monitoring investigation, prosecution, and remedies for victims. There is an obligation in relation to acts by non-state entities.[49]

Housing rights have been litigated and adjudicated extensively at the national, regional and international levels. The right to housing, as well as aspects of that right, has been brought before, and been dealt with, by courts and other bodies in a wide variety of ways. The following are two of the primary ways in which this has occurred. First, the right to housing has been litigated directly before decision-making bodies, resulting in their making judgments and orders expressly on the basis of that right. Second, many ‘civil and political’ rights have socio-economic (including housing rights-related) aspects or implications. The acknowledged interdependence and interrelationship of both kinds of rights have led to housing rights (and elements thereof) being protected by means of the interpretation and application of provisions relating to civil and political rights such as the right to equality or the right to life.[50]

It is true that there is no consensus as regards the exact scope of this right, level of recognition and nature of state obligations. While some states clearly recognize housing rights as individual justiciable rights, others regard it as a principle, which states should strive to ensure. The UN Special Rapporteur on Adequate Housing has noted that housing rights should not be taken to imply that this right will manifest itself in precisely the same manner in all circumstances and locations.[51]

Since the end of the Cold War, there has been a trend in all regions of the world to reduce the role of the state and to rely on the market to resolve problems of human welfare, often in response to conditions generated by international and national financial markets and institutions and in an effort to attract investments from the multinational enterprises whose wealth and power exceed that of many states. It is no longer taken for granted that the realization of economic, social and cultural rights depends significantly on action by the state, although, as a matter of international law, the state remains ultimately responsible for guaranteeing the realization of these rights. While the challenge of addressing violations of economic, social and cultural rights is rendered more complicated by these trends, it is more urgent than ever to take these rights seriously and, therefore, to deal with the accountability of governments for failure to meet their obligations in this area.[52]

Right to Shelter in Chattogram

The situation in cities other than Dhaka is similar in terms of the quality of housing and tenure insecurity. Nonetheless, because of less land prices and demand compared to Dhaka, it has been possible in some cases to facilitate processes for acquiring land tenure by the urban poor in some of the smaller cities.[53]

Current trend of urban migration is driven by rural poverty, river erosion and natural calamities forcing them to migrate to Chattogram city in search of better livelihoods. These newcomers floating people in the city end up sleeping in public places such as street corners, railway and bus stations as well as other available places including abandoned buildings. The existing infrastructure facilities developed in Chattogram city cannot cope with the minimum living requirements of this poor working class floating popula­tion. Chattogram city is exposed to an array of urban problems.

The Social Welfare office does not take steps for all the homeless people. They take specific measures for rootless street children and vagabond homeless people. They arrest the vagabond people by the help of police and mobile court. Then those people are proclaimed as vagabond. Then they are sent to shelter homes. There are six shelter homes for vagabonds in Bangladesh. There are 85 government children home in Bangladesh, where 11,000 children are being provided with different kind of services. The number of children might seem not many considering the whole number of rootless children in Bangladesh. The Union Parishad make lists of homeless child, which is outside the Chattogram city. Though the project is running successfully, there are some corruptions and conflict of interests between the Social Welfare Directorate and Union Parishad. The Social Welfare office get financial and other technical helps from UNICEF as well as some partner NGOs like Aparajeyo Bangla. There is no active co-operation between the CCC and the Social Welfare office in this regard. On the other hand, the main project of the land office is for the homeless people who live in Upazilla and rural area. Chattogram City is not their first priority. Their steps are effective for the people who are recommended by the Chairman of Upazilla and Union Parishad. The land office does not get any help from any donor agency and there is no active co-operation between the City Corporation and them.

Present Scenario in Bangladesh and Abroad

Housing shortage in 1991 was estimated to be about 3.10 million units which now (2002) have exceeded the 5 million units mark projected for the year 2000. Bangladesh will have to build at least 300,000 housing units a year to keep pace with the population surge.[54] It is projected that by 2030 the level of urbanization will be more than 40 per cent (UNFPA, 2005).

The housing situation is worse in the urban areas as more and more rural poor escaping from abject poverty caused by unemployment, landlessness and natural calamities by coming to the cities in search of a livelihood. So far Government or the private sector has shown minimal initiatives to provide shelter for the lower income group. Private developers claim that they have built 20,000 housing units in the last 20 years (before 2002) and have sold 2000 units every year.[55]

An adequate shelter must at a minimum have security of tenure, protection from elements of nature, utility services such as safe drinking water, sanitation and other essential services; it needs to be affordable and accessible. Regrettably a large section of Bangladesh population has no access to adequate housing.[56]

In a Ministry of Housing survey (2002) on the housing need revealed that some six million housing units have to be built in Bangladesh to meet the deficit. The survey suggested that the government undertake a massive housing program.[57]

Data from the 2009 Multiple Indicator Cluster Survey (MICS) in Bangladesh make it clear that conditions in slum areas are much worse than those in most rural areas, even in regard to service delivery-type indicators such as secondary education attendance rates and skilled attendance at birth.

The Prime Minister Sheikh Hasina in her pre-election pledges promised house for every family. From time to time some pronouncements are made about providing housing for the lower income group. While inaugurating the World Habitat Day 2000, the Prime Minister said that housing arrangements for 50,000 families would be made in the next five years at a cost of 447 crore under the ongoing “Abashon Prokolpo” – a housing project for rootless rural people.[58]

However, the realization of such political announcements is illusive. The National Housing Policy was revised in 1999 with a view to making housing affordable for all and a law was made effective through formation of National Housing Authority (NHA). Again, very little has improved in terms of providing shelter for the poor especially for the evicted slum inhabitants in the cities.[59]

During the inauguration of World Children Day and Children's Rights Week in October, 2015, Prime Minister Sheikh Hasina had asked the ministries of women and children affairs and social welfare to take the necessary steps to ensure food, shelter and education for every street child of Bangladesh. "No children would live on the street as the government has the capacity to feed the reportedly 34 lakh street children” she added. The report from Bangladesh Institute of Development Studies (BIDS) projects the number of street children is 1.5 million in 2015 and it will reach to 1.56 million in 2024. The given situation clearly reveals that there are no comprehensive and reliable statistics available on the actual numbers, living conditions, needs and interests of children living on the streets. But the fact is street children constitute one of the most vulnerable and marginal groups in Bangladesh.[60]

Notwithstanding the existing constitutional guarantees against forced evictions and earlier High Court orders directing the government to provide for proper notice and rehabilitation measures before displacement, slums are demolished and their residents evicted virtually every year. In the last five years, the slum people saw bulldozers swoop on them in as many as seven eviction drives. On April 4, 2012, the Dhaka district administration removed around 2,000 illegal structures and reclaimed 170 acres of a public land in Mohakhali’s Korail slum, forcing hundreds of its inhabitants to live in the open without food, water and toilets.[61]

There is a national housing policy, but it is not being implemented properly, said noted urban planning expert Prof Nazrul Islam. He was speaking at the inaugural session of a two-day Urban Thinkers Campaign (UTC) at Bangladesh University of Engineering and Technology (BUET). The architecture department and urban and regional planning department of the university organized the “UTC-BUET 2017” under the theme, “Road Map for Implementation of New Urban Agenda (NUA): Involvement of Multi Stakeholders in Development Process”.

A vision is necessary for a coordinated and planned urbanization across the country, said Prof Nazrul, chairman of Centre for Urban Studies. “The national housing policy was approved in 2016,” he said stressing the importance of its proper implementation. A draft National Urban Sector Policy was prepared in 2013, but it is yet to get an approval, said Nazrul. He, however, said most of the major recommendations were incorporated in the government's Seventh Five-Year Plan. “For that we are very pleased.” Also, it is clearly mentioned in the National Urban Policy that urbanization across the country will have to be done in a decentralized way. He said around 30 percent areas of the country are urban, and its contribution to the GDP is 65 percent.[62]

Access to health, education, power, water supply, sanitation and waste management is very limited for the urban poor. Where those services do exist, quality is low. There is an urgent need of finding sustainable solutions to meet the basic needs of this vulnerable portion of the population.[63]

In spite of this right, the homeless, the inadequately housed, and the evicted are more and more numerous in the cities and the countryside across the planet. More than 4 million persons were evicted from their homes between 2003 and 2006. In today’s world, some 100 million persons are homeless and more than a billion are inadequately housed. According to the estimates of the United Nations, 3 billion persons will be living in slums in 2050. Most of these persons live in countries of the South, but no continent is, nor will be, spared.[64]

[...]


[1] https://scroll.in/latest/874200/chittagong-is-now-chattogram-as-bangladesh-revises-english-spellings-of-five-districts

[2] Population & Housing Census-2011: Union Statistics " (PDF). Bangladesh Bureau of Statistics. p. 39. Archived fromthe original(PDF) on 8 December 2015. Retrieved 15 December 2015.

[3] https://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf

[4] See Hertogh, M. & Halliday. (eds) (2004) Judicial Review and Bureaucratic Impact. Cambridge: CUP.

[5] https://www.dhakatribune.com/bangladesh/dhaka/2017/03/03/rehabilitation-slum-dwellers-taking-right-approach/

[6] http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module13.htm

[7] Leckie, S. (2000) Legal Resources for Housing Rights. Geneva: COHRE.

[8] Report of the Special Rapporteur on the Right to Adequate Housing to the 57th Commission on Human Rights, E/CN.4/2001/51, § 8, 25 January 2001.

[9] https://en.wikipedia.org/wiki/Right_to_housing

[10] See Committee on Economic, Social and Cultural Rights, General Comment 4 on the Right to Adequate Housing (Article 11(1)) for a more detailed account of these elements of the right to adequate housing.

[11] http://www.cwp-csp.ca/poverty/a-human-rights-violation/the-right-to-housing/

[12] S. Leckie, ‘The Human Right to Adequate Housing’ in A. Eide, C. Krause and A. Rosas (eds) , Economic, Social and Cultural Rights – A Textbook, Second Revised Edn (2001) 149 at 152.

[13] https://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf

[14] https://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf

[15] https://law.unimelb.edu.au/__data/assets/pdf_file/0005/1680341/Lynch-and-Cole.pdf

[16] Langford, supra n50 at 19. An example of this is the Rudolph case. In this case, the litigants obtained a structural interdict from the High Court arising out of the failure of the City of Cape Town to comply with the previous Grootboom judgment. In contrast to Grootboom, in this case, the state was approaching compliance after 18 months. Admittedly, it is likely that the fact that the Council are approaching compliance with its constitutional obligations in the Rudolph case is the nature of the order granted. A lawyer involved with the case has stated that, “it’s quite clear from the sequence of events that the fact that they are even approaching compliance is caused by the fact that they had to come back and tell the Court something because the actions get taken at the last moment.” (Interview with Geoff Budlender, Legal Resources Centre, in Cape Town, (21 Dec. 2005)). However, if the Grootboom precedent did not exist it seems highly unlikely that the Court would have granted such an order, bearing in mind the reluctance displayed by the South African courts generally towards granting structural interdicts.

[17] https://www.ihrec.ie/app/uploads/download/doc/aoifenolan.doc

[18] In speaking about cases taken by himself and colleagues on behalf of Roma and Travelling People, Luke Clements Co-Director of the Traveler Law Research Unit at Cardiff Law School, Cardiff, Wales, has observed that: “we were initially quite successful. But then the judges got ‘sympathy fatigue’: they felt they had made their contribution and that Gypsies were being too demanding. We started losing major cases.” (Interview with Luke Clements cited in Langford, supra n50at 130)

[19] https://ohchr.org/EN/Issues/Housing/toolkit/Pages/RighttoAdequateHousingToolkit.aspx

[20] E/CN.42004/48, Ibid.

[21] http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module13.htm

[22] http://www.cwp-csp.ca/poverty/a-human-rights-violation/the-right-to-housing/

[23] http://www.cwp-csp.ca/poverty/a-human-rights-violation/the-right-to-housing/

[24] Compare General Comment 3 para. 10 with General Comment 14 (2000) and the CESCR, substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: poverty and the International Covenant on Economic, Social and Cultural rights U.N.Doc.No.E/C.12/2001/10 may 10, 2001.

[25] Mekelle University Law Journal, Vol.1 No.1, 2010

[26] http://achr.net/upload/downloads/file_22122013020636.pdf

[27] https://www.escr-net.org/caselaw/2006/ain-o-salish-kendra-ask-v-government-and-bangladesh-ors-19-bld-1999-488

[28] https://www.blast.org.bd/issues/shelter

[29] http://www.urbancentre.utoronto.ca/pdfs/housingconference/Nawaz_Right_to_Shelter.pdf

[30] http://hrlibrary.umn.edu/instree/Maastrichtguidelines_.html

[31] CESCR, CESCR General Comment 4: The Right to Adequate Housing, [7], UN Doc E/1992/23 (1992).

[32] See Hertogh, M. & Halliday. (eds) (2004) Judicial Review and Bureaucratic Impact. Cambridge: CUP.

[33] See UNCHS (Habitat). (2001) Position Paper on Housing Rights; Report of the Expert Group Meeting on Housing Rights Monitoring, 26-28 Nov. 2003, UN-HABITAT and OHCHR.

[34] https://www.un.org/ruleoflaw/files/FactSheet21en.pdf

[35] https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/housing-homelessness-and-human-rights

[36] https://www.nesri.org/programs/what-is-the-human-right-to-housing

[37] http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module13.htm

[38] http://www.corteidh.or.cr/tablas/r26740.pdf

[39] Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 68 All India Reporter SC 746, [7].

[40] Albania, Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Georgia, Ireland, Italy, Lithuania, Malta, Moldavia, Netherlands, Norway, Portugal, Rumania, Slovenia, Sweden, Turkey and Ukraine: http://conventions.coe.int/Treaty/Commun/ChercheSig. asp?NT=163&CM=1&DF=10/5/2007&CL=ENG

[41] https://www.cetim.ch/legacy/en/documents/bro7-log-A4-an.pdf

[42] https://en.wikipedia.org/wiki/Right_to_housing

[43] New York Supreme Court, Callahan v. Carey, 1979.

[44] https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2821&context=nlr

[45] https://www.ihrec.ie/app/uploads/download/doc/aoifenolan.doc

[46] Communication No.161/2000, CAT/C/29/161/2000, (2002).

[47] Paraphrased from A. Nolan, M. Langford & Ors. ‘Leading Cases on Economic, Social and Cultural Rights: Summaries – Working Paper No.2’ (Geneva; COHRE, 2005).

[48] https://www.ihrec.ie/app/uploads/download/doc/aoifenolan.doc

[49] Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. 20 HRQ 20 691-704 (1998).

[50] https://www.ihrec.ie/app/uploads/download/doc/aoifenolan.doc

[51] Scott Leckie: The Right to Housing. Economic, Social and Cultural Rights, Martinus Nijhoff Publishers, Dordrecht-Boston-London, 2001, p. 150.

[52] Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. 20 Human Rights Quarterly 691-704. (1998) para. 2.

[53] http://achr.net/upload/downloads/file_22122013020636.pdf

[54] The Daily Star, February 01, 2002 quoting a World Bank report.

[55] The Financial Express, May 27, 2002

[56] The Daily Star, February 01, 2002 quoting a World Bank report.

[57] The Financial Express, May 27, 2002

[58] The Daily Star, October 8, 2002

[59] http://www.urbancentre.utoronto.ca/pdfs/housingconference/Nawaz_Right_to_Shelter.pdf

[60] http://achr.net/upload/downloads/file_22122013020636.pdf

[61] https://www.dhakatribune.com/bangladesh/dhaka/2017/03/03/rehabilitation-slum-dwellers-taking-right-approach/

[62] https://www.thedailystar.net/city/implement-national-housing-policy-1496176

[63] Ahmed, K. Iftekhar, May 2007

[64] https://www.cetim.ch/legacy/en/documents/bro7-log-A4-an.pdf

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2018
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9783668766723
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violation right shelter homeless people chattogram city

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Titel: Violation of Right to Shelter and Homeless People in Chattogram City