INTERVIEW

Miloon Kothari

‘My approach has a strong legal basis’

Human Rights Features (HRF): How has the insistence by the US that the "right to adequate housing" must be viewed as a "component of the right to an adequate standard of living", rather than a right on its own, affected your work?

Miloon Kothari (MK): The title of the resolution [containing my mandate] has of course not stopped me… My approach is still very much the right to housing approach which I have detailed in the first report. It has a very strong legal basis. And all the treaty bodies are using the right to adequate housing language. It has been used by other UN bodies. The Sub-Commission. Even the Commission in its resolution on adequate housing says rights. But I do think that it is unfortunate that this issue has not been resolved….It creates a kind of discrimination against housing…

HRF: How does this affect your work? You don't think your work is any different from that of the special rapporteur on arbitrary detention, for example.

MK: It doesn't. I've just ignored it. And I've received a lot of support from all the treaty bodies, civil society, UN agencies, other parts of the UN human rights system, the High Commissioner's Office. And you know, we keep talking about the indivisibility of rights.

Whenever anybody talks about economic, social and cultural rights, it's always all of these rights. I suppose they wanted to get an entry point into the Commission. To challenge the whole set of rights. Which I think they want to do… Somewhere in the resolution it says rights related to adequate housing. So in the first line in the report we say "right to adequate housing."

What has helped is that because there is this language of the adequate standard of living and the right to non-discrimination, it has supported my interpretation of the mandate, that it includes much more than housing. So for example, you cannot have the right to adequate standard of living without having access to water, sanitation, electricity and protection against occupation.

We have in fact been able to turn that around and use it to our advantage. It would still be nice to have a resolution that says the right to adequate housing.

HRF: What do you think of the draft resolution being circulated on adequate housing this year?

MK: It's OK. It was done in very close consultation with us. I would have liked to have a recommendation on holding an expert seminar and a few other recommendations to report to the General Assembly…The other new aspect is on this issue of disability.

HRF: Your visit to the Occupied Palestinian Territories was your first country visit. What prompted you to choose such a controversial issue for your first visit?

MK: It wasn't my choice. The CHR had a special session in October 2000. In the resolution it asks seven rapporteurs to visit the territories and to report back to the Commission. So I was just following the Commission's [instructions].

HRF: How do you think the loss matrix in your study on gender will impact legal mechanisms involving housing rights?

MK: It in fact helps the mechanisms. Because what has happened so far in the work on economic, social and cultural rights is that there has not been enough attention to monitoring and assessing the impact of violations on these rights. So what we are proposing in the housing area is that you have to look at the non-material and the material impacts: the psychological damage. The idea of coming up with the matrix was to be able to do that. So the matrix is now relevant. It has already been tested in a few places. Not only civil society of course has done it but also UN agencies. We will also be using it for the work on women and housing.

HRF: Do you think states realize that this matrix will effectively be adding "teeth" to existing mechanisms on the right to adequate housing?

MK: I have found in these discussions on the loss matrix and in the general discussion of indicators [that] we have actually got much further at the country level when we do the missions. When we meet with ministers at various levels and we share this methodology. We have got a very positive response…They tell us: OK, we want to implement the General Comments of the Committee on Economic Social and Cultural Rights but how do we do it? And here are some benchmarks that can essentially be used to assess the right to adequate housing. I think there's progress with this. There has been a very positive response from Mexico and Romania.

HRF: You mentioned in your statement that Romania is the exception in terms of its good use of a rights-based approach to adequate housing.

MK: They are the exception in that their national strategy on the Roma integrates the CERD dimension…But there also a number of other positive practices that we have come across in our country missions. It would be good if you could point them out.

HRF: Do you ever make the argument to states that in many ways housing as a negative right? The provision against forced evictions, for example, seems to lend itself best to being enforced in the courts?

MK: I don't see any need to limit the right. I really do think that we need to take the indivisibility approach. I do think that the most valuable aspect of economic, social and cultural rights is the positive aspect because of the realisation and drawing in civil society and looking for alternatives. The violations approach… could be one aspect but it should not be isolated. Because then you get other problems: states refusing to have a dialogue, other issues. But I don't think it should be an exclusive or a single approach.

I think the way to clarify states' obligations is through elaborating those indicators.

HRF: How do you think your view of housing has changed from being on the NGO side of things to being on the UN side of things?

MK: I think that this opportunity to be rapporteur…I have really decided to take a constructive approach. And that is very much what I have learned: that it may not be a good policy, which is often this knee-jerk NGO reaction, to always stress violations, to say our government is not doing anything, the UN is not doing anything.

I think that in this I am convinced that if you take a constructive approach and you are able to show governments-even governments that are against human rights-if you are able to show that it doesn't threaten their existence if they commit to human rights. And if you're able to show it through one right, or through certain aspects, then it can have benefits. This is what we've found…

It's been a sort of revelation, in a sense. [I]n the country missions, in the press conferences, in the meetings, I have been very very critical of their housing policies. Because that criticism is framed within the human rights commitment of the country and because the fact that they have invited me to visit indicates that there is a willingness to change, a willingness to share their problems, it has created a climate where all these governments have responded very positively to the criticisms, [and] to the recommendations. And maybe that's the lesson: that we have to at times hold back, we have to try to draw people in instead of alienating them, we have to find a way to keep the dialogue going. Otherwise what happens very often in the NGO work is that... you don't really find a meeting point.

And I think that what the special procedures allow…is that it does in a way become a media-inner circle. We are in between. We are the creation of an intergovernmental system but we are independent. Many of us come from civil society backgrounds. And we work equally with civil society, UN agencies, and governments. There's no bias. And this comes up very sharply in the country missions. Just the fact that we go there creates opportunity for everybody to meet, and the dialogue continues.

This happened in Peru, for example, where there was a real problem of communication between civil society and government and because of the mission that has worked effectively. And civil society recognizes that that is the important part of the mandates.

And what is sometimes difficult but what we have to continue to strive to do as special rapporteurs and independent experts is to maintain the independence. I think that is really key. In a sense, if we're biased then the bias has to be to the human rights instruments, and to nothing else. And not to be swayed by other arguments, whether they're from civil society or government.

HRF: So do you find it equally hard to prevent yourself from being biased either towards the governments or to the NGOs?

MK: It depends on the situation. Obviously, the kind of work we do…In a way there is instinctive affinity with, I wouldn't say civil society but I will say people on the ground.

And very often in many countries, most countries, the main contact with people on the ground, essentially the grassroots work, is from civil society. But part of the role for us is to actually then bring the government to that reality.

HRF: Do you think the idea of constructive dialogue would work with all rights?

MK: Sure. Because if you draw the countries into their obligations under the instruments…it significantly changes the way they act…

I should say that constructive dialogue doesn't preclude criticism. We are very critical.

HRF: What would your advice be to NGOs then?

MK: I think that if NGOs come to the Commission or to treaty bodies with the sole purpose of criticising or raising violations, that of course has a role to play. But I think that NGOs should also attempt to have a dialogue with the concerned governments. But of course a climate has to be created first…Many governments will just say, "Oh, you're an NGO so I don't have to talk to you." But I think it may be possible. I think there should be more dialogue. There should be more stress in NGO statements on solutions.

And I also think that NGOs can use the special procedures more. I don't think they're used as much as they should be. Of course part of the responsibility is ours to contact NGOs. But I think that each of the special rapporteurs would definitely have more active connections with NGOs. And also I think that the other aspect that would help would be if there were more organised lobbies…For there to be coordination among NGOs to have an active advocacy campaign…..

But I should say that the advocacy campaign and the lobbying should begin at home. Sometimes it's too late when groups come here. As you've seen, many governments come with quite a well-prepared position. And it's difficult to sway them…It would be very good if they could raise the issue at home, begin at home…

And the point I was making about constructive dialogue, providing solutions in the oral statement, that can also be done through distribution of materials. A lot of materials have just violation, violation, violation, which in circumstances may be justified but…

The part that I'm not able to come to terms with, that many of us have difficulty with, is how do you cut through the politics at the commission? The only thing I could say about that is…you must take an issue-based approach. You must be willing to have a strategy. You must say look, we're not here for results immediately but we're going to pursue this for some time.

And since you're asking about NGOs, I think that one of the other things that is probably lacking in the NGO work is that there hasn't been much of a focus on treaty bodies. A lot of people just show up at the commission, but some of the real work in terms of standard setting, in terms of holding states accountable, in terms of getting key issues and getting a response is in the treaty bodies. All treaty bodies have processes which NGOs can attract.

I think there has to be a wider strategy of engagement. And in that NGOs that have a wider array of experience obviously have a role to play with regards to training.

HRF: What do you see for the future of your work as special rapporteur?

MK: The next countries will be Philippines, Kenya. Brazil is a very strong possibility. But I would also like to visit a northern country. We have requested Canada. We are going to be focusing on children's rights to adequate housing on forced evictions.

And then of course I'm very keen that this resolution on women and housing is drafted so that we can continue the study on women and housing. Because that has become a strong part of the mandate, as it should be. And I think it has helped me to also focus in my mandate in general. And then we'll continue to follow the globalisation debate. We are considering joint statements with the WTO. Of course I'll continue to work on the privatisation issue and also with the treaty bodies.