Duty holders

The professional monitor of the human right to adequate housing should provide a list as complete as possible of the duty holders both legally and morally responsible. This legal duty holder (i.e., the State and its agents) may be operating in conjunction with others in either the violation or the potential solution. The audience of your eventual action, whether they are the general public, journalists, or a prosecutor or judge, will need a clear and complete picture of the legal personalities, those who are active and passive, and who does what to whom, from the beginning to the present.

As borne out in the foregoing sections on sources of law and guarantees, the concerned State is always the principal duty holder. It is the legal personality treaty bound by the obligation to respect, protect, promote and fulfil human rights, but also to aid those who have been deprived of them. The State’s duties are threefold:

· To avoid deprivation,

· To protect and defend those facing deprivation,

· To provide remedy in the forms of assistance and justice to those deprived.

You may find the State, as duty holder, to have committed acts of deprivation, or omitted to protect or remedy a deprivation through the obstacles identified above. One might also find that the duty holder is constrained by other actors or factors, such as natural disaster or global economic recession.

Other forces may contribute to a violation, including internal and external factors (actors like the International Monetary Fund (IMF), the World Bank, multinational corporation or national planners are either direct or indirectly responsible for the deprivation, or conditions leading up to it. So, too, are factors such as debt or traditional social practices. Especially when the role of the State is passive (i.e., by denial or failure to protect and ensure remedy to the victims), other actors may come to the fore. Private companies, including multinational corporations, for instance, regularly buy land and carry out projects that involve forced evictions and land confiscation. In some cases, the regional and international development banks have their well-articulated policies on compensation/relocation. However, these companies may be the right hand of State policies, or implementers of international public projects. That is why it can be important to note the relations between the different actors forming a whole chain of duty holders.

One must not overlook the possibility that duty holders, particularly as violators owing remedy and restitution to victims, might also be members of the community, or even family members of the victim(s). Where does the State duty lie in such a situation? As the legal personality obliged to respect, defend, promote and fulfil the human right to adequate housing, the State’s duty lies squarely in the execution of its human rights obligations to regulate behavior of legal persons within its jurisdiction (and areas where it exercises effective control) so as to uphold rights. The human rights treaties and other instruments provide the guidance on how States—and statecraft—should address human rights violations by third parties as matters of civil or criminal law.

To have a full outline of questions for identifying the duty holders and the applicable legal obligations, you can use this "Toolkit” very effectively, since each element of the right to adequate housing that you have identified as relevant to your case has corresponding duty holders.

Primary: State authorities

q Has the State failed to take to prevent the violation of housing rights, especially access to public goods and services, including access to water, sanitation and energy? What are those neglected steps?

q Has the State protected the impoverished and vulnerable inhabitants and aided the victims (e.g., by prosecution, return, compensation, etc.) in the violation of housing rights, especially access to public goods and services, including access to water, sanitation and energy? Which are the particular bodies responsible for these preventive and remedial steps?

q Has the State taken sufficient measures to promote the entitlement of access to public goods and services (e.g., human rights education, campaigns, public-service announcements, awareness-raising publications, etc)? Which are the specific bodies responsible for those measures?

q What is the State’s relationship with other duties holders regarding the assessed violations? Explain the nature of that relationship. Is it a contract, foreign aid package, nepotism, political patronage, etc.?

Secondary: Have other actors affected the denial of access to public goods and services, including access to water, sanitation and energy?

q Are other local, non-State actors somehow engaged in the denial of access to public goods and services, including access to water, sanitation and energy? Who are they and what is their role?

q What role do international financial institutions (IFIs) such as the World Bank, IMF, a regional development bank, or the World Trade Organisation have in determining the policies or conditions affecting access to public goods and services, including access to water, sanitation and energy in the affected community/country?

q What role and influence do multinational corporations or international development agencies have in determining the policies or conditions of access to public goods and services, including access to water, sanitation and energy in the affected community/country?

q How are these secondary duty holders responsible for the violation of the right to access to public goods and services, including access to water, sanitation and energy? To what extent do they influence State policies, programs, and laws having an effect on the violation?

q Do the secondary duty holders have internal policies/codes of conduct regarding housing rights, especially affecting the entitlement to access to public goods and services, including access to water, sanitation and energy? If so, are they publicly accessible?

q What are the relevant details of those policies or codes? How do they protect the human right to adequate housing and the entitlement of access to public goods and services, including access to water, sanitation and energy?

q Are these conditions part of an implementation contract or other cooperative agreement with State bodies or other partners?

q Before implementation, do they study the impact the projects will have or consider the possible unintended consequences?

q If there are several secondary duty holders, what is their relationship to each other, and how do they share responsibility for the assessed violation of the entitlement to access to public goods and services, including access to water, sanitation and energy? What is the relationship between each of them and the State?

q Do local authorities lack sufficient autonomy in housing and community development to apply locally relevant options to ensure the human right to adequate housing, especially access to public goods and services, including access to water, sanitation and energy?

q Do local authorities use their autonomy to protect and influence the central authorities of the State in a positive way, or do they participate in the violation and denial of the State’s obligations and national policies?

Assessment

q To what extent is the State responsible for the vulnerability or violation of the housing rights entitlement to access to public goods and services, including access to water, sanitation and energy?

q To what extent are non-State actors responsible for the vulnerability or violation of the housing rights entitlement to access to public goods and services, including access to water, sanitation and energy?