On Housing Rights

A house is the place for the birth and death of a person, and one of the most important things in a person's life. The thought is captured in an old Chinese proverb, which says:'People can live well with a house, but nothing without it; on the contrary, a house exists with people, but disappears without people'. There is also a similar saying in the West which is used as a legal maxim. It says'Wind may come in, so may rain, but not the king'. People spend most of their lifetime in the house which is the basic demand for habitation. The phenomenon of shortage of housing described by Engels also exists at different degrees in all countries, because of the accelerating development of industrialization and urbanization. In our country, the problems of housing were induced into more deterioration by the lopsided development of the real estate market in the past years. Nevertheless, most of our studies on housing were mainly on architectonics, economics, sociology, the legal researches of housing remained on the institution of the real estate law, and only few people consider housing as a kind of human rights. So the aim of this paper was to confirm, respect, protect and make real the housing rights through the studies on the housing rights from the perspective of the rights based on legal theory. I was trying to mention the concept of housing rights according to Chinese reality through combination of the rules in international conventions and specific situation in contemporary China.Human Beings must be treated with dignity, and respect with regards to the demand for housing as human rights.'The right to a proper standard of living established by International Covenant on Economic,Social and Cultural Rights'is a basic human right and adapted for the dignity of human being, so the final purpose of housing rights being put forward, is to safeguard human dignity for habitation. This dignity needs to be guaranteed both materially and spiritually, with the aspect first and foremost. Therefore, the housing rights are a combination of material and spiritual rights. But housing rights are new-emerging rights in China and people are not yet very familiar with its power discourse. I believe that housing rights should first meet the civic basic demand of habitation, and secondly safeguard occupant's spiritual rights based on which, the housing rights could realize the minimum idea for housing with dignity.So the core opinions in this paper are that the housing rights should have its legal status in contemporary China, which are not only human rights, but human's right and legal rights, and that it will be the rights in reality. Moreover,housing rights are a comprehensive right, their establishment, respect and protection should be legalization, and the government has the duty to guaranteed individual and his family's rights to housing with dignity.To discuss those points, the thesis was divided into five parts/chapters except preface and epilogue.Chapter 1: Concept analysis of housing and housing rights based on ontology. Housing rights is one of the basic human rights, means that all the people in our society have the rights to housing with safety, healthy and dignity. The concept of housing rights in this paper is that housing obtaining and occupation by people, thus they could enjoy the material rights as well as all the personal rights. Here I emphasize that the concept is only for the basic demand of housing, not for housing investment and enjoyment; second, I emphasize the comprehensive characteristics of the housing rights, it does not only include the physical structure, but also condensation of multiple concrete rights related to housing, so we could express turgidly that the housing is the base camp for all of personal rights. Clothing, food, housing, and transportation are the basic necessities of life. With regards to housing, it is considered mainly as a family unit. Therefore the general right of housing rights is involves a person and his family. However, in reality not all people can enjoy the housing rights. People such as tramps, the elderly, children, city new immigrants, and etc. can not change their housing conditions by their own efforts and thus have no true housing rights, so, the housing rights should cover them firstly. The right's content of housing rights is the related interestes are holded by subjectes of the housing rights, has two aspects resumptively, one is that the subjectes have the safeguard right related to the baisic need of housing, and the other is that the right of housing with safety, healthy and dignity in house .'The rights to obtaining a house'is the first content in housing rights. It is the core of housing rights, and the precondition and basis of other concrete rights. The rights to obtaining a house extends to other rights, such as owning right after obtaining the house, and for the obtaining a house, there are many ways including self property right, private housing lease and government offer. Here, I wish to only emphasize the estate'families well accommodated'. But that the well accommodated families concept does not necessarily imply housing with dignity, since the concrete rights to a house must include the right to a house with the right to a healthy environment, privacy, safety, cultural expression, etc. On the other hand, the housing rights are an open concept, concrete content of it will be enriched continuously with the living standard improved. The concrete right to a house also an obligation for the government when an individual has no access to housing rights. It is the government's duty and political responsibility to ensure that these human rights are guaranteed and protected.Chapter 2: History of housing rights. It can be observed that the housing rights are mainly fall within social rights, although it has multiple ramifications, because of its nature as a quasi-public commodity. That the solving of housing problems should rely on the welfare policies established by governments also can be seen from current residence systems in the world, with differences only in the degrees that welfare policies are applied by different countries. Early capitalist societies considered the problem of housing as not problem of welfare. At that time, that welfare meant to help solve the problem of housing for poor people were considered as grace or charity behavior, those benefited from the grace or charity had no dignity. It was however found that the poverty was not always because of individual ability but due to many social reasons not controlled by a person as a result of the spread of the capitalist economic crisis, thus the poor people did not lose dignity for accepting donations from countries and others. Marshall considered that the 20th century was the century of social welfare and citizens were entitled to enjoy social welfare. For housing rights, citizens without ability were also entitled to enjoy offered by government with dignity. Our government had implemented universal housing welfare policy in urban after the founding of our country, but the welfare policy was proved not fit to the social development in practice. The universal housing welfare was reformed into residential commercialization subsequently. However, this policy led to great difference compared the average living standard of society for the housing status with that of some middle and low income people, and they were aware gradually that their housing rights were being deprived, thence the concept of housing rights being raised in China. The basic necessities of life including clothing, food, housing, transportation, medical treatment, etc. was confirmed as a basic human rights in Universal Declaration of Human Rights, and the subsistence right was established as the first human rights in International Covenant on Economic,Social and Cultural Rights. The subsistence right is the basis of other human rights, such as freedom right, development right, and etc. The housing rights are the concrete rights of subsistence rights, perform the people's dignity as human subsistence, those are the theoretical support of the housing rights as right.Chapter 3: Housing rights as human rights. That'Housing rights is human rights'was considered as the theoretical premise for discussing the housing problems in China, but housing rights as a human rights was little known. Housing rights as a human right was not performed in individual clauses of the International Covenants on Human Rights or Regional Convention on Human Rights, United Nations human rights bodies also investigated deeply in the following work.'General Comment No. 4'made specific provision of the housing rights that was in 11 clauses of International Covenant on Economic,Social and Cultural Rights, and made the'right to adequate housing'standards, consist of legal protection of the right to residential use, the capacity of housing, the opportunity to obtaining adequate housing, appropriate place for housing, and so on. Rajindar Sachar further elaborated the concept of housing rights from the sense of human rights in his special report, He emphasized here that the housing rights are not divided from other human rights, and government has the positive obligations to safeguard citizens'housing using the resources existed. Housing rights was developed in'Habitat Agenda'as sustainable development, developed special subjects, and emphasized the principles of freedom from discrimination. The housing rights in human rights were concrete and detailed, but the housing rights in reality are obviously different from those in human rights theoretically, just like the nature of human rights, differ between the ideal and real.Chapter 4: Housing rights as legal rights. Why the housing rights as human rights is to be legal rights? It is determined by instrumental value and ethical values of legal rights. The housing rights is nesssary and feasible to become legal rights. Becouse of problems such as material conditions, the existing legal rights or its actionable, and the cost of the legal system do not restrict this process. Some countries have established the law specifically to protect housing rights, such as Britain, America, Japan, and so on. But in contemporary China, there has no special residential law be established, and no housing rights were clearly defined in special law. Only some fragments of housing rights could be seen in present law. It is very serious that there is negative sense of freedom rights to define housing rights in constitution, not as South Africa who defined the positive sense of right to existence in their constitution. Additionally, the property right level of housing rights is limited by administrative laws, civil laws or other laws when houses are dismantled in the cities. Thus there are wide gaps in our laws when comparing them with housing rights appeared in human rights.The last part is about citizen's housing rights in contemporary China. People with middle or low income are concerned with urban housing security system because of the high price of housing in contemporary China, in other words,'right of obtaining housing'. The urban housing security system has many problems of concrete implementation, the basic reason being that we did not pay attention to housing right as a basic human right, because that a person and his family should be safeguarded for housing with dignity through housing rights. Therefore, the basic means and methods to solve the severe problems of housing rights in our country are to improve the legislation of housing rights, and define the obligations of our state and government.