Conference Conversations is a 3-part blog series based on papers from key speakers at the Castan Centre Human Rights Law Conference 2021, which took place on Friday 23 July this year. The second blog in this series is based on a paper presented by the author, Professor Jean Allain, in session two of the conference on ‘Ending Homelessness by Human Rights-Based Approach’.
The Pressure Points of International Human Rights Law
By Professor Jean Allain
As part of the Castan Centre for Human Rights Law, I bring a deep commitment to, and recognition of, the importance of international human rights law.
I am not an Australian by birth, rather dedicated to the study of international law and international human rights law, I have lived my adult life away from my country of origin: Canada.
I wish to bring to bear my experience in regard to that country and another which I know well – the United Kingdom – as a means of comparing Australia, its human rights approach, and how this explains its perspective in regard to the right to adequate housing and to homelessness.
First, I lived through the constitutional change in Canada where, for reasons of attempted secession of the Province of Quebec, a new federal system was established, one which brought with it a Charter of Rights and Freedoms which resulted in a fundamental shift in the relationship between the government and the governed, premised on a fundamental acceptance of human rights.
Before arriving in Australia five years ago, I had been in the United Kingdom for more than a decade, at the Human Rights Centre, Queen’s University, Belfast – Northern Ireland – where the peace treaty between Ireland and the United Kingdom was premised on respect for established human rights law governing Europe. Although many may consider that rights are protected by the common law in the UK, that is a fallacy which has been seventy-years in the making, as the United Kingdom was been bound for that period by the European Human Rights Convention and thus has effectively had a that charter of rights incorporated into its domestic law since 1951. It is this Convention which underwrites the Irish Good Friday Agreement.
Where Canada has accepted, embraced, and internalised a human rights perspective; the United Kingdom has accepted, if not the spirit of a human rights perspective, rather its functional application. It is with this sense that I recognised that each country has an ethos, and manner of taking on board human rights which is unique to it.
It is with this ‘outsiders’ perspective that I turn my attention to seeking to understand Australia’s relationship with human rights and the pressure points which might exist in seeking to promote a rights-based approach to addressing housing and homelessness. By ‘Australia’, what I mean is the Commonwealth; which is responsible for implementing and ensuring respect for international human rights law on this Continent.
In essence, in bring fresh eyes to this endeavour, I which to make the following four points:
1. That where the international right to adequate housing is concerned, for Australia, it is a right in name only;
2. Australia is in the midst of letting lapse its greatest contribution to international human rights law: a National Human Rights Action Plan.
3. That an international roadmap to address the right to adequate housing – including homelessness – has been developed and consolidated over time as a rights-based approach. Further, that this approach is not alien to Australia, having been given a full hearing but a limited voice in 2009, when what is now called the Australian Human Rights Commission proposed that such an approach be taken by the Commonwealth in regard to future legislation dealing with homelessness.
4. Finally, that both in law and in fact, more and more countries are adopting and making effective such a rights-based approach to addressing homelessness.
1) Right to adequate housing in Australia is in name only
As my fellow panellist Cassandra Goldie, the CEO of Australian Council of Social Service, has noted, Australia undertook, in 1975, a legal obligation to ensure that everybody within its jurisdiction benefited from all the rights set out in the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Yet, it should be recognised that in the midst of the Cold War, Western States saw this Covenant from its inception, as being ‘socialistic’ or even ‘communistic’ as it required that countries actively provide for its people rather than leaving it to the ‘market’ to ensure housing, health, employment, etc. – rather than a government which passively did not interfere with a person’s right to – say freedom of expression or movement. It might be noted that this feeling was reciprocal, as Socialist States saw the rights enshrined in the ‘other’ Covenant – on Civil and Political Rights – as being ‘capitalistic’ in failing to provide for the material needs of the proletariat.
Where the ICESCR is concerned, this resulted in a number of fallacies in regard to its rights, – most obviously the trope of the non-judiciability of such economic, social, and cultural rights – which then dissipated and disappeared in the wake of the fall of the Berlin Wall. As a result of the demise of the Soviet Union, more and more Western States have come to recognise – having lifted their ideological blinders – the importance of this Covenant to address structural poverty and the reduced social safety-net brought on by neo-liberal policies.
Australia is a party to this Covenant and has failed to incorporate, over the last 45 years, this instrument into Australian law, thus failing to allow Australians to action those same-said rights which the Commonwealth has pronounced to the world it has accepted as legally binding.
This, it must be said, is not unique to the Covenant. In fact, this applies to nearly all international human rights instruments to which Australia is a party. While the Australian Human Rights Commission may intervene in cases on the basis of a number of those instruments – for instance, the Convention on the Rights of the Child – this does not mean (as a number of United Nations human rights bodies have continuously brought to the attention of Australia) that this constitutes incorporation into Australian domestic law, allowing for individuals to vindicate their own rights before local courts.
In the Australian context, incorporation has only taken place in regard to the 1965 Convention on the Elimination of Racial Discrimination and elements of the 1979 Convention on the Elimination of Discrimination against Women.
However, what is unique about to Australia’s approach to the International Covenant on Economic, Social, and Cultural Rights is that where the Commonwealth has allowed most of the other international human rights instruments to benefit from the ability of individual Australians to petition UN human rights bodies to hear claims on their behalf of breaches of international human rights treaties; this is not so in regard to the Covenant, as Australia has yet to consent to the Optional Protocol to the ICESCR.
Here then is the first of those pressure points noted earlier:
To press the Commonwealth to accept the Optional Protocol, giving the United Nations human rights experts appointed to ensure the proper application of the ICESCR the ability to consider cases from Australian, including those related to adequate housing and homelessness.
2) That Australia is in the midst of letting lapse its National Human Rights Action Plan
At the 1993 Vienna World Conference on Human Rights, Australia proposed and was the first to adopt a National Action Plan.1 Since then Australia has had successive Plans, though the last was set out in 2012. With no talk of a new Plan, it appears as though Australia will let lapse, what should be considered as its most important contribution to international human rights law.
Since 2012, what appears to have transpired is a shift to the disaggregation of such a Plan, to focus on specific issues – at the expense of the majority of human rights issues falling to the side. Likewise, in the vacuum of Commonwealth inaction, a further disaggregation has taken place at the State- and Territory-level, leaving behind a patchwork of human rights protection depending on where you live in Australia.
What is most important for our considerations is that such Action Plans are most relevant to the ICESCR because its rights are to be realised ‘progressively’ on the basis of available resources. Without such a Plan – a roadmap to that progressive realisation of, for instance the right to adequate housing – the United Nations has recognised that a country is in breach of its Covenant obligations of setting out a course of action necessary to ensuring the rights enshrined in the ICESCR are ultimately realised.
Here then is another pressure points:
To call on the Commonwealth to draw up such a National Action Plan, which would include specific means to address and ensure that, for instance, the right to adequate housing is respected.
3) That an international roadmap to address the right to adequate housing exists and should be the basis a rights-based approach in the Australian context
If that international roadmap can be summarised, it is this:
1. Housing strategies must identify the State’s obligations to be realized progressively, based on clear goals and timelines for achieving specific outcomes and the right to adequate housing for all in the shortest possible time;
2. Strategies should provide coherence and coordination in all relevant policy areas, particularly urban planning, land regulation, taxation and finance, social benefits and services;
3. States should establish specific strategies to address obstacles to the right to housing such as discrimination, financialization, speculation, predatory lending, land grabbing, conflict, forced evictions, environmental degradation and vulnerability to disasters. Strategies adopted should be responsive to persistent and emerging challenges in urban and rural areas, such as spatial injustice and climate change;
4. States should provide for independent monitoring of progress in meeting goals and timelines, establish procedures through which affected communities can identify systemic issues affecting the realization of the right to housing and ensure effective responses.2
Before considering this as a pressure point, let me draw your attention to the notion of ‘financialization’ mentioned in item 3 related to obstacles to the right to adequate housing. Our Moderator today, Dr Jessie Hohmann, has written an important piece considering how the treatment of housing in the Australian context has shifted from being a home to a commodity.3 I commend it to you.
A third pressure points would thus be:
To press the Commonwealth to once more take up its international leadership in developing and implementing a Nation Human Rights Action Plan, drawing on the international roadmap in ensuring that a rights-based approach to adequate housing is integrated into its approach to housing and homelessness.
It should be made plain that such an approach is not new – in 2009, the Australian Human Rights Commission made representations to the Commonwealth Inquiry into National Homelessness Legislation. Although no such overriding legislation emerged; having considered the Commission’s Submission and recognising that it is more than ten years since it was presented, it may be said that the Commission’s position captures most, if not all, of the elements required of a rights-based approach to adequate housing and to homelessness. For its part, the Report which emerged from that process – though not acted upon – called legislation to “explicitly recognize the right to adequate housing be progressively realized”.
Over the last decade much has changed, giving hope to the possibility of establishing a rights-based approach – including the clarification of what is required for a country, such as Australia, which has accepted the obligation to ensure the right to adequate housing.
4) That both in law and in fact, more and more countries are making effective a rights-based approach to addressing homelessness
Many countries comparable to Australia have taken this right seriously and moved to reduce and positively address homelessness within their jurisdictions. Here I am thinking of Canada – as Leilani Farha, the former UN Special Rapporteur on adequate housing alluded to as a speaker at our Castan Centre Annual Conference – which has created legislation, policy and institutions needed to address housing and homelessness. Likewise, in the United Kingdom, Scotland is focused on the issue and successfully using a rights-based approach with a look to eliminating homelessness.
The fourth and final pressure points is this:
The ability to point to success to the use of rights-based approaches in other jurisdictions can be leveraged in moving Australia towards such an approach knowing that it has been used successfully elsewhere.
In considering the issues of the right to adequate housing and homelessness, I have come to understand Australia’s relationship with international human rights is, in the main, rhetorical and over the last decade, retrograde. That relationship can only change by identifying pressure points and acting upon them.
With fresh eyes, I see these pressure points which could be used as a second-front – with reference to international human rights – to assist those of you carrying out the true struggle in seeking to address homelessness within Australia.
Where the Covenant on Economic, Social, and Cultural Rights generally, and the right to adequate housing and homelessness more specifically, is concerned, to take it beyond the paper it is written on and to give it effect in Australia, pressure should be brought to bear in:
- consenting to the Optional Protocol to the ICESCR, allowing Australians to vindicate their rights at the international level.
- incorporating the international human rights instruments, allowing Australians to vindicate their rights at the domestic level
- ensuring that Australia continues to develop a National Human Rights Action Plan.
- pointing out the success in other countries which have adopted a rights-based approach to homelessness.
This second front is one which the Castan Centre – with its focus on international human rights law – is happy to champion, to research, and to seek to bring to bear on the struggle which continues in Australia in regard to the right to adequate housing, recognising the transformative potential of a rights-based approach to addressing homelessness.
- Azadeh Chalabi, “Australia’s National Human Rights Action Plans: traditional or modern planning?”, International Journal of Human Rights, Vol. 20, 2016.
- United Nations, Human Rights Council, Guidelines for the Implementation of the Right to Adequate Housing, 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 in this context, UN Doc A/HRC/43/43, 26 December 2019, para. 28.
- Jessie, Hohmann, Jessie, “Toward a right to housing for Australia: Reframing affordability debates through article 11(1) of the International Covenant on Economic, Social and Cultural Rights”, 26 Australian Journal of Human Rights, 2020.
Jean Allain is professor of international human rights law at Monash University and the Convenor of the Economic, Social and Cultural Rights Program Research Group at the Castan Centre for Human Rights Law.