Housing as a Human Right: Possibilities for Legal Advocacy

Part three of a four part series on the developing housing rights movement

Given the benefits of framing housing as a human right [discussed here], could such a right possibly be established?

Historically, the United States has been resistant to recognizing social and economic rights, including the right to housing. The timing of the Federal Housing Administration’s establishment in 1934 and the passage of the 1937 Housing Act indicates that other rationales (e.g. humanitarian, functionalist, etc.) were at the heart of previous federal policy. Later, the Housing Act of 1949 established the explicit goal of “a decent home and suitable living environment for every American family.” However, by framing the policy as a “goal,” instead of a right, humanitarian concerns were still paramount—even though the right to housing had been affirmed a year earlier in Article 25 of the 1948 Universal Declaration of Human Rights (UDHR).

Since 1948, the right to housing and other economic and social rights have been reaffirmed in numerous international instruments such as the International Convention on the Elimination of Racial Discrimination (1965), the International Covenant on Economic, Social, and Cultural Rights (1966), and the International Convention on the Elimination of Discrimination Against Women (1979). Of these, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) “contains the most legally significant foundation of the right to housing at the international level.”[1] However, on the domestic front, the ICESCR—like many international documents—was only signed by the United States (by President Carter), and not ratified by the Senate. Therefore, it is not legally binding.

However, this does not mean that international law has no relevance to current domestic efforts to establish a right to housing. As a signatory to instruments such as the International Covenant on Economic, Social, and Cultural Rights, the United States still has legal obligations. Even thought the Covenant was only signed—not ratified—the US is still required by the Vienna Convention to “refrain from acts which would defeat the object and purpose of [the] treaty.”[2] In other words, the US has negative obligations. Such obligations have relevance to many housing issues, such as refraining from implementing laws that criminalize homelessness.

Moreover, as Maria Foscarinis, et al. have written, “Courts use international human rights law as an interpretive guide, to give content to general concepts such as standards of need and due process, and in further support of analyses under domestic law.”[3] For example, federal district courts and state courts of appeal have drawn upon international law in such cases as In Re White, Boehm v. Superior Court, and Lareau v. Manson. Even the US Supreme Court has brought “international norms and practices” to bear on US law “as evidenced by Roper v. Simmons, the case striking down the execution of minors as unconstitutional.”[4]

The interdependence of rights also provides a channel for legal advocacy. Foscarinis, et al., write that:

Jurisprudence emanating from the […] International Covenant on Civil and Political Rights [which was ratified by the United States] recognizes obligations under the right to life in Article 6, as well as under guarantees of non-discrimination, to take positive measures to address poverty and homelessness.  While the latter treaty is not self-executing, it can be used as an interpretive guide in cases where domestic law is absent or ambiguous; it may also be considered customary law and thus binding with the status of federal common law.[5]

Implicit within this statement is the interdependence of rights. In the quote above, the right to life and guarantees of non-discrimination are directly related to issues of poverty and homelessness. One’s right to life, for example, is not secure if one lacks adequate shelter. And guarantees of non-discrimination are potentially violated if certain groups are disproportionately affected by a lack of housing that, in turn, undermines other rights that they hold. Thus, due to the interdependence of human rights, the US’s ratification of the International Covenant on Civil and Political rights also entails government obligations relating to social and economic rights, including housing rights.

Finally, there is movement to establish housing as a human right at both the state and local level. A number of state constitutions, for example, “contain the seeds of a right to housing,” by including language that addresses caring for the needy, providing for the poor, or protecting citizen welfare.[6] As an example of human rights advocacy at the local level, “city councils in Berkeley, Oakland, and San Francisco have passed resolutions adopting the Universal Declaration of Human Rights and the International Covenant for Economic, Social, and Cultural Rights.”[7]

Thus, there are many possible ways that international human rights norms, established in instruments such as the Universal Declaration of Human Rights, can be brought to bear on domestic legislation. The US’s negative obligations established under the Vienna Convention, the use of international law as an interpretive guide, the interdependence of rights, and legal advocacy at both the state and local level all provide avenues for realizing housing as a human right.


I. Housing as a Human Right: Introduction

II. Why Take a Rights-Based Approach to Housing Issues?

III. Housing as a Human Right: Possibilities for Legal Advocacy

IV. Common Myths about Housing Rights


[1] Scott Leckie. “Housing as a Human Right,” in Environment and Urbanization, October, 1989.

[2] Ibid.

[3] Maria Foscarinis, et all. “The Human Right to Housing: Making the Case in U.S. Advocacy,” in the Journal of Poverty Law and Policy. July-August, 2004.

[4] “Housing Rights for All: Promoting and Defending Housing Rights in the United States” The Centre on Housing Rights and Evictions and the National Law Center on Homelessness and Poverty. 2009

[5] Maria Foscarinis, et all. “The Human Right to Housing: Making the Case in U.S. Advocacy,” in the Journal of Poverty Law and Policy. July-August, 2004.

[6] “Housing Rights for All: Promoting and Defending Housing Rights in the United States” The Centre on Housing Rights and Evictions and the National Law Center on Homelessness and Poverty. 2009

[7] Ibid.

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