In October 2011, the UN Special Rapporteur on extreme poverty and human rights, Ms. Magdalena Sepúlveda Carmona from Chile, addressed the UN General Assembly during the Third Committee’s discussion of human rights. The Special Rapporteur’s 2011 report (UN document A/66/265, August 4, 2011) was a particularly important one as it analyzed “several laws, regulations and practices that punish, segregate, control and undermine the autonomy of persons living in poverty.” As the report shows, such measures have been adopted more frequently over the past few decades, and have even intensified during recent years because of the economic and financial crises, to such a degree that they are now considered a serious threat to the enjoyment of human rights by persons living in poverty.
The report is indispensable reading for anyone working with those living in poverty, whether they are homeless persons, street children, street vendors, or persons displaced because of the transformation of cities through gentrification policies, the privatization of social housing, etc. “Poverty is not a lifestyle choice” is the resounding conclusion of the report, and therefore nobody should be punished for living in a situation they did not choose.
The Special Rapporteur’s report has five parts:
The realities of poverty: stigmatization, discrimination, penalization, exclusion
The international human rights framework
Penalization measures that negatively affect the enjoyment of human rights
Conclusions and recommendations
Part IV entitled Penalization measures that negatively affect the enjoyment of human rights is divided into four sections which are very rich in examples:
Laws, regulation, and practices that restrict behaviours in public spaces by persons living in poverty
Urban planning regulations and measures
Requirements and conditions for access to public services and social benefits
Excessive and arbitrary use of detention and incarceration
Cecile Meijer, rscj
Excerpts from the Report of the Special Rapporteur on extreme poverty and human rights, UN document A/66/265.
3. The report uses the term “penalization measures” to refer generally to policies, laws and administrative regulations that punish, segregate, control and undermine the autonomy of persons living in poverty. These measures are homogeneous neither in their design nor their effect; they vary significantly in their intent and impact across and within regions, States, provinces and municipalities. Some result in the outright criminalization, prosecution and incarceration of persons living in poverty, while others excessively regulate and control various aspects of their lives. Some have punitive effects such as the imposition of heavy fines, loss of child custody, disentitlement from social benefits and infringement on rights to privacy and autonomy. Some measures explicitly target persons living in poverty while others are neutral laws, policies and practices which, though directed at all individuals, have a disproportionate impact on those living in poverty.
4. … The report explains how these measures are the result of deeply entrenched prejudices and stereotypes that have permeated public policies….
5. … Persons living in poverty are not to blame for their situation; accordingly, States must not punish or penalize them for it. Rather, States must adopt wide-reaching measures and policies designed to eliminate the conditions that cause, exacerbate or perpetuate poverty, and ensure the realization of all economic, social, cultural, civil and political rights of those living in poverty.
7. Penalization measures respond to discriminatory stereotypes that assume that persons living in poverty are lazy, irresponsible, indifferent to their children’s health and education, dishonest, undeserving and even criminal. …
8. As a consequence of the discrimination and stigma that they suffer, persons living in poverty often develop fear of and even hostility towards public authorities, and have little confidence in the institutions that should assist them. Too often, they are treated with disrespect or condescension by policymakers, civil servants, social workers, law enforcement officials, teachers and health-care providers, who may fail to recognize and support the efforts that persons living in poverty are making to improve their lives.
10. … Asymmetries of power mean that persons living in poverty are unable to claim rights or protest their violation. They may face obstacles in communicating with authorities owing to illiteracy, lack of information or language barriers, a situation which is particularly acute for migrants, indigenous peoples, ethnic minorities and persons with disabilities. …
25. A human rights approach to poverty eradication dictates an active, free, informed and meaningful participation of persons living in poverty at all stages of the design, implementation and monitoring of policies affecting them. Genuine participation should not only be understood as an affirmation of the right of every individual and group to take part in the conduct of public affairs, but also as an instrumental part of the solution to poverty and social exclusion. …
52. … Persons living in poverty face several obstacles and costs in gaining access to official documents. Documents may be expensive, and accessing them difficult for individuals who do not have a fixed address or lack proof of identity. This is particularly common in developing countries, where some of the most vulnerable and excluded people, particularly women and ethnic minorities, are not registered at birth. Obtaining documents also requires additional interactions with public officials who often lack sufficient understanding of the specific needs and circumstances of persons living in poverty. …
Conclusions and recommendations
76. Rather than penalizing the poorest for their situation, States must take positive measures to bring down the legal, economic, social and administrative barriers that persons living in poverty face in gaining access to food, shelter, employment, education and health services, and which prevent them from enjoying their economic, social and cultural rights on an equal footing with the rest of the population and as part of an inclusive community.
77. The human rights obligation to ensure the satisfaction of, at the very least, minimum essential levels of all economic, social and cultural rights implies a responsibility to secure an adequate standard of living through basic subsistence, including by providing essential primary health care, basic shelter and housing and basic forms of education. …
(a) States shall take all necessary measures to eliminate all direct and indirect discrimination against persons living in poverty. … States must review national legislation in order to assess the existence of any discriminatory impact on those living in poverty and shall repeal or amend legislation that has the purpose or effect of impairing the equal enjoyment of rights by those living in poverty;
(d) States shall create an enabling environment to facilitate the participation of persons living in poverty in public life and in the decisions affecting their lives. To this end, States must identify and address the institutional impediments which prevent vulnerable and marginalized groups from fully participating in decision-making processes;
(i) States must only have recourse to detention and incarceration when it is necessary to meet a pressing societal need, and in a manner proportionate to that need. States must ensure that arrest or detention does not disproportionately affect those living in poverty. To this end, States shall:
(ii) Ensure that to the greatest possible extent, bail processes take into account the economic and societal circumstances of persons living in poverty.