‘Access’ Is Never Enough

In the recent generation of global habitat-related policy documents, it is common to find references emphasizing access to housing as a goal. However, the insertion of an adjective risks excluding others, and doing so in the context of the human right to adequate housing has degraded language and its meaning, narrowed corresponding state obligations and led to misconceptions that beg correction.

In human rights law, in general, and in the case of substantive economic, social and cultural human rights, in particular, each right is the subject of a precise and legally defined set of constituent values that give meaning to what is often referred to only laconically in the respective Covenant or Convention that guarantees that right. Those definitions—known as the “normative content” of a right—are found primarily in the General Comments (or General recommendations) that the respective Treaty Bodies have developed in consultation with states parties and other concerned stakeholders.

In the case of the human right to adequate housing, guaranteed in the International Covenant on Economic, Social and Cultural Rights (ICESCR), its authoritative monitoring and interpretation body, the Committee on Economic, Social and Cultural Rights (CESCR), issued the first General Comment on a covenanted human right in 1991. That General Comment on the human right to adequate housing defined the normative content of the right with a legal definition of housing adequacy that has stood the test of three decades without challenge.

That instrument clarifies that the enjoyment of the human right to adequate housing requires a composite of conditions: Security of tenure; public and environmental goods, facilities, infrastructure and services; affordability; habitability (including safe and sound structure); accessibility in the physical sense; suitable location and cultural appropriateness.

In practice, the attributes of adequate housing can only be achieved through the realization of other process rights such as relevant information; privacy; freedom of choice in residency; freedoms of expression, movement and peaceful assembly; and participation in public life. While these principles speak to how to enjoy the human right to adequate housing, they must coincide with the state’s fulfillment of the over-arching principles of implementation: self-determination, nondiscrimination, gender equality, rule of law, allocation of the maximum of available resources, progressive realization (i.e., the continuous improvement of living conditions) and international cooperation.

The shorthand for this formula is the legal term “adequate housing.” That understanding enabled the Habitat II Agenda to refer to states’ renewed commitment to this established terminology 61 times in that policy instrument as “the full and progressive realization of the human right to adequate housing.” As found in more-recent iteration of policy commitments, the singular qualification of only access to (or only affordable) adequate housing becomes at once redundant and insufficient.

Human Rights Specificity

The same method of interpretation applies to other human rights. For example, the CESCR’s definition of the human right to health’s normative content encompasses indispensable standards of availability, accessibility, acceptability and quality. In the case of the human right to adequate food, adequacy means food that meets the composite requirements of: sustainability of food availability and access, dietary needs, being free from adverse substances, and cultural or consumer acceptability. In all cases, enjoyment of a human right requires multiple attributes, of which access is only one among an inextricable bundle.

Despite this normative development enshrined over decades in the human rights instruments, contemporary usage singling out a stand-alone attribute reflects disregard for these authoritative references and implies an objective inferior to the codified right. The New Urban Agenda (NUA) reflects this trend with the singular attribute “access” to housing, abandoning others defined in their authoritative sources. It refers to the states’ commitment to ensure only access to, for instance, medicines and information, both subjects of guaranteed human rights with fuller attributes and corresponding states’ prior, permanent and binding obligations. Likewise, the NUA promises mere access to “economic and productive resources” and mere “access to…land.”

A Notable Correction

However, emerging norms are correcting regressive concepts and their terminology, articulating normative content with increasing specificity. With recognition of the contributions from the perspectives of women’s, peasants and Indigenous Peoples’ rights, the process has culminated also in CESCR’s 2022 General Comment on land.

Tracing this positive development, at least since 2013, UN Women has settled on language that promotes women’s right to land goal more explicitly as “access to, use of, and control over land.” Two years later, Agenda 2030 called for women’s “access to ownership and control over land.” The new General Comment opens with the settled language of “secure, equitable and sustainable access to, use of, and control over land.”

Notably, CESCR’s General Comment on land does not recognize a “human right to land” as it did in the case of its groundbreaking recognition of a human right to water twenty years ago. Political pressure and Judeo-Christian colonial and dualist thinking prevailed to stop short of recognizing the other classic element of land as a universal (i.e., human) right. Apparently, the Committee rather settled on a field between a human right to land and the tendency to focus only on land tenure, which is akin to a property right (not a subject of the Covenant). Nonetheless, like in the CESCR’s 1991 interpretation of a human right to adequate housing, its final General Comment on land reflects the reality in practice that secure land tenure is also an important-but-insufficient condition to realize the economic, social and cultural rights linked to land.

Why Language Is Important

Practical experience in the field gives rise to the importance of land’s distinct multi-dimensional nature within the indivisibility and interdependence of human rights. Take the case of a woman in a country such as Comoros with a matrilinear inheritance system, but certain patriarchal practices. She may be required to present a male sponsor to be eligible for financing to manage the land productively. (See Comoros review in “Arab States @ HLPF 2023” in this issue.) In such a case, she may have secure tenure in the form of autonomous ownership of the land, but lack the commensurate right to determine her use of it.

The current formulation and its expression on a broader scale also guides national law, policy and institutions to seek citizens’ “secure, equitable and sustainable access to, use of and (democratic) control over land.” That formulation aligns also with the human rights to a clean, healthy and sustainable environment and the right to development, among other rights. This approach and corresponding terminology help to achieve the needed correction of the problematic myopia that has treated land as merely property to be acquired, but also a value to be respected and protected in its unitary human rights and natural context.

Photo: Women struggle for safe, equitable and sustainable access to, use of, and control over land. Source: Arie Kievit/Hollandse Hoogte/Redux.