A/HRC/40/61 mechanisms must also be in place to ensure hearings of challenges to development plans that would result in displacement of lower-income communities. V. Access to justice to end criminalization and discrimination based on housing status 41. Laws and their interpretation and application by courts frequently perpetuate systemic discrimination and stigmatization against those who are homeless or living in informal settlements.56 Rather than being treated as rights holders entitled to remedies for serious violations of the right to housing, these groups are treated as violators of laws and “encroachers” on the land. 42. In keeping with international human rights law, access to justice must be reconceived to focus on protecting and ensuring the right to housing for those who are homeless and inadequately housed and must not be used to criminalize them. The Human Rights Council has called upon States to take all measures necessary to eliminate legislation that criminalizes homelessness and to ensure an effective remedy and the right to access to justice.57 United Nations treaty bodies have established that discrimination on the grounds of socioeconomic status, including homelessness, is a prohibited ground under international human rights law and must be recognized within domestic justice systems. 58 The Committee on the Elimination of Racial Discrimination has recognized the criminalization of homelessness as intersectional discrimination, linked to systemic racism and colonization of indigenous peoples.59 43. The Human Rights Committee has found that the criminalization of homelessness may violate the right to freedom from cruel, inhuman or degrading treatment, the right to liberty and security of the person and protection from arbitrary arrest or detention. 60 Domestic courts have reached similar findings. Courts in the United States have invoked constitutional protection from cruel and unusual punishment to strike down local ordinances that ban sleeping in public spaces and prohibited vehicles serving as homes from being towed away for parking infractions. 61 Canadian courts have struck down city bylaws preventing homeless people from sheltering themselves overnight in parks under makeshift homes of tarps or cardboard boxes as violating the right to life, liberty and security of the person.62 44. Ensuring access to justice to challenge forced eviction and criminalization in these cases is important, but it is alarming that courts have not gone further to recognize the need for positive measures for access to adequate housing. Ensuring only a right to live in a cardboard box or under plastic in the most affluent countries in the world does not remotely satisfy the standard of reasonable measures required under international human rights law. Courts must interpret the rights relied upon in these cases – to life, security of the person and equality or freedom from cruel and inhuman treatment – consistently with States’ obligations to take positive measures to address homelessness itself as an egregious violation of human rights.63 Initiatives like the Homeless Bill of Rights in Europe and the Housing Not Handcuffs movement in the United States advocate strongly against 56 57 58 59 60 61 62 63 12 See A/HRC/31/54 and A/73/310/Rev.1. Resolution 31/9. See also A/HRC/13/20. Human Rights Committee, Whelan v. Ireland (CCPR/C/119/D/2425/2014); and general comment No. 36, para. 26. See, for example, CERD/C/USA/CO/7-9. CCPR/C/USA/CO/4. United States Court of Appeals for the Ninth Circuit, Martin and others v. City of Boise, Opinion of 4 September 2018; and Superior Court of Washington for King County, Seattle v. Steven Gregory Long, ruling of 2 March 2018. Supreme Court of British Columbia, Abbotsford (City) v. Shantz, Judgment of 21 October 2015. For an analysis of cases in the United States in this light, see Eric Tars and others, “Can I get some remedy? Criminalization of homelessness and the obligation to provide an effective remedy”, Columbia Human Rights Law Review, vol. 45, Issue 3, pp. 738–771.