Housing as an International Human Right: Guaranteeing a Dignified Home

By: Carlos F. Ramos Hernández

What is home to you?” I distinctly remember when a South African tour guide asked me this when we arrived at Cape Town five years ago. The answer, at the time, seemed obvious to me: Puerto Rico. Living in a “post-colonial colony”[1] implies a constant and (un)conscious allusion to one’s national identity as an integral part of the meaning of home. Puerto Rico’s socio-political relationship with the United States has instilled a need for us to become part of a greater imagined “Puerto Rican community,” as the lack of political sovereignty affects traditional conceptions of “motherland.” To me, home will always be this 100×35-mile Caribbean island. However, while taking a course titled, “Housing Law and Solutions to Housing Related Anti-Social Behavior, Crime and Incivilities,” I learned that home has a myriad of definitions and classifications, especially in law. I most likely have been able to construct an idea of home because I have been living in the same house, i.e. physical structure, for the past twenty-four years. Additionally, the fact that my parents own the house has given me a sense of “stability” throughout my life. It is through this framework of shelter and security that I am able to understand and advocate for a universal right to adequate and appropriate housing.[2] Human dignity serves as the fundamental basis for this right. Every individual has the right to the full development of his or her personality. This goal is incredibly difficult to achieve without a sustainable house.

Pursuant to this human rights’ approach to Housing Law, it seems contradictory that countries throughout the world employ public policy centered on eviction, especially in the realm of public housing. The United States’ “One Strike, You’re Out” policy (“OSYO”), which applies to Puerto Rico, is based on prior criminal convictions as a justification for eviction. Studies suggest that this policy severely limits ex-convicts’ basic necessity to affordable housing.[3] How can people rehabilitate if their past actions classify them as “less deserving” members of society? How can policy be anchored on the notion that “criminals” impose “a reign of terror” on public low-income housing tenants? Moreover, this policy fosters a strict “deny first” approach. How is that fair? Professor Silva asserts that “[t]he use of criminal history information as the basis for disqualification from federal public housing is patently inconsistent with contemporary federal reentry objectives.”[4] Thus, this policy clearly contradicts the notions of universal right to housing and the United States’ domestic rehabilitation policies. The next logical question, then, is whether this policy complies with universal human right standards.

Although the United States might not actively protect most human rights (compared to an international community standard), a “positive and negative obligation” framework allows us to understand and contextualize the reasoning behind the Unites States’ public housing policy. After all, the right to adequate housing is a universal human right, even if the United States does not consider it as such. For example, a State has a duty to act and take active steps to ensure an effective enjoyment of acquired rights (e.g. United States’ right to property and pursuit of happiness as well as the European Union’s right to education and engaging in work). Are these the definitions of positive or negative obligations? Both. A State has to act and facilitate access to these rights; it should not deprive its citizens from them. It is a matter of degree, not of substance. Following this definition, the OSYO policy responds to an obligation to protect good public housing tenants from bad public housing tenants’ anti-social behavior.[5] This reasoning, however, ignores a more substantial “positive” obligation: the social role of public housing in facilitating ex-convicts’ rehabilitation and reentry process. Moreover, unconditionally banning access to public housing to sex offenders and meth producers, among others, directly opposes human rights standards by expediting homelessness. Is there a way to enforce and protect the human right to adequate housing in a “dualist” state, like the United States? Can courts interpret constitutional rights and international treaties (both signed and ratified by the United States) favorably to evicted tenants? Hardly so. Above all, the U.S. Supreme Court’s rational basis standard of review (which is applied to assess the constitutionality of socio-economic statutes) almost always validates the U.S. Congress’ “legitimate” government interest when ruling on a challenged statute.

Commonwealth of Puerto Rico v. Molina Figueroa illustrates the (in)human right rationale of OSYO.[6] Molina Figueroa is the only decision of the Puerto Rican Supreme Court that deals with eviction in public housing under the “local” version of OSYO. Mr. Molina, who was almost legally blind, was evicted from a public housing complex where he had lived for the past fifty-three years because he had failed to comply with a provision under the Public Housing Agency’s Regulation (by-laws). The provision states that a person cannot live in a public house complex if he or she is not included as a “household” member on the housing lease. Even though Mr. Molina’s eviction was not directly related to anti-social behavior, OSYO logic explains the underlying basis of it: the United States’ obsession with the war against drugs. This paternalistic approach to drugs resonates with Puerto Rican politicians, given the high correlation between violence and drugs on the island. Nevertheless, if not for the bureaucratic provision breach, Mr. Molina would have still been evicted for his past criminal history (he had been convicted under the Controlled Substances Act). Ironically enough, Puerto Rico’s Department of Corrections and Rehabilitation authorized an early release for Mr. Molina precisely because he had a stable home in which he would be able to finish serving his sentence. How can public policy promote rehabilitation and reentry, yet at the same time promote eviction? It simply cannot. Nonetheless, reviewing how other countries have dealt with housing policies can help us better assess the legal architecture of eviction issues from a comparative law perspective.

The Netherlands provides an appealing take on how to deal with housing rights issues.[7] The Dutch Civil Code makes court approval mandatory for the termination of the tenancy agreement and for issuing an eviction order.[8] Moreover, as a Member State of the Council of Europe, the Netherlands is obliged to comply with a minimum level of protection through measures of “proportionality” and “reasonableness” when enacting public policy.[9] This standard also applies to a national court when it reviews cases involving people at risk of losing their homes. Interestingly, most of the cases concerning eviction orders and housing-related behavior respond to specific incidents of anti-social behavior. These behaviors include drug related anti-social behavior (mostly the illegal growing of cannabis), violence/harassment, noise nuisance, filthiness, among others. Even though drug-related issues result in the highest number of eviction orders in the Netherlands, the other anti-social behaviors the government seeks to minimize in public housing are fairly different from those punished in the United States. The violence associated with drug-related issues in public housing in the United States and Puerto Rico fuels the OSYO policy; this is not necessarily the case in the Netherlands.

While professor Silva’s analysis of OSYO questions the “structural and systematic” problem in the logic and use of eviction law in the United States, professor Vols’ empirical study mostly highlights the “disturbance and nuisance” aspect of the anti-social behavior. At first glance, it seems as if the problem in the United States does not involve neighbor-to-neighbor conflict but rather a State-to-neighbor conflict. In the Netherlands, however, eviction and the judicial approach to it are framed in terms of lack of “proportionality” and “reasonableness.” The United States and Puerto Rico are one step behind in this regard. In Molina Figueroa, the Puerto Rico Supreme Court rejected Mr. Molina’s argument that the Government’s public policy promoting a “dignified environment” for people with physical disabilities outweighed any eviction public policy. The Court, which is the final authority on constitutional issues, discarded the argument by simply stating that the petitioner did not cite any specific case-law to support his argument. Was a proportionality or reasonableness analysis applied? No. Contrary to the United States and Puerto Rico, the Netherlands has to comply with the European minimum level of protection against the loss of a home, which forces lawmakers and judges to address the issue from a human right’s perspective from the start. The entire adjudication methodology has a “default” human rights approach. Maybe these “European requirements are [indeed] relatively meaningless procedural hurdles,”[10] yet they are hurdles and safeguards that we (in the United States and Puerto Rico) do not have.

The human right to housing must be universally guaranteed, yet eviction-centered policies seem to contradict this idea. At the very least, the OSYO policy’s inherent contradiction (eviction-rehabilitation dichotomy) undermines any human rights promotion. On the contrary, the Netherlands not only advocates for a proportionality and reasonable framework analysis, but has also experimented with a Therapeutic Jurisprudence-oriented (“TJ”) approach to housing issues. This Dutch-TJ analysis promotes eviction in order to prevent, through early intervention, problems with anti-social behavior. Although I do not completely agree with the perpetrator-victim framework, professor Vols’ research strongly shows that a problem-solving-oriented approach: (1) helps victims at an earlier stage; (2) avoids the eviction of a “perpetrator” and his family; and (3) tackles the underlying causes of the problematic behavior.[11] This solution-oriented approach may not necessarily be suitable for the United States and Puerto Rico, but it provides a framework that is worth considering. At the end of the day, we have the same aspiration: a universal right to adequate and appropriate housing. We must recognize, then, that the question of “what is home to you?” should always inspire a dignified response.

* This paper was written as a final assignment to Professor Michel Vols’ one-week course titled “Housing Law and Solutions to Housing Related Anti-Social Behavior, Crime and Incivilities” during the 2015 Fall semester at the University of Puerto Rico School of Law. Professor Michel Vols holds a chair of Public Order Law at the University of Groningen in the Netherlands.

[1] See Jorge Duany, Nation, Migration, Identity: The Case of Puerto Ricans, 1 Latino Studies 424, 425 (2003).

[2] See generally, Padraig Kenna, Housing and human rights in International Encyclopedia of Housing and Home (S. J. Smith, ed. 2011).

[3] Lahny R. Silva, Criminal Histories & Public Housing, 2015 Wis. L. Rev. 375 (2015).

[4] Id. at 384.

[5] The definitions of anti-social behavior varies across countries; but, in general terms, it refers to behavior that opposes society’s norms and accepted standards of behavior. I want to note that anti-social behavior in the United States, under OSYO, does not necessarily meet the “intentionality” and “repetition” criteria prevalent in other countries. See generally Andrew Miller, Anti-Social Behaviour (2009).

[6] Commonwealth of Puerto Rico v. Molina Figueroa, 186 DPR 461 (2012).

[7] South Africa’s approach to the housing law issue presents a bewildering case because the traces of Apartheid paradoxically endorse (current public policy) and oppose (constitution) eviction laws. I will not address this case-study in this essay, yet comparing South African and Puerto Rican housing issues could result in a thought-provoking comparative law analysis. See Stuart Wilson, Curing the Poor: State Housing Policy in Johannesburg after Blue Moonlight, 5 Const. Ct. Rev. 280 (2014).

[8] Art. 7:231 BW (Neth.)

[9] See Michel Vols et al., Anti-social behaviour and European protection against eviction, 7 Int’l J. L. in Built Env’t 148 (2015).

[10] Id. at 160.

[11] See Michel Vols, Neighbors from hell: problem-solving and housing laws in the Netherlands, 7 Ariz. Summit L. Rev. 507 (2014).



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