The Justiciability of Housing Rights

Scott Leckie

`Nor can the law of trespass, driving the poor out of where they have squatted for long, extinguish the fires of discontent among the generation which has lost its right to a roof.'1

Introduction

Should a complaint procedure under an Optional Protocol to the Covenant on Economic, Social and Cultural Rights eventually join the body of international human rights law, the Committee on Economic, Social and Cultural Rights can expect to receive a substantial number of petitions, from both individuals and groups, alleging violations of the housing rights provisions enshrined in Article 11(1) of the Covenant. Cases dealing with forced evictions, racial and other forms of discrimination in the housing sphere and various aspects of the landlord- tenant relationship will doubtlessly be submitted to the Committee for consideration. Complaints of this nature are subject to immediate justiciability in most cases, as exemplified by international jurisprudence, but in particular by State practice at the national level. The Committee should find no particular difficulties handling cases such as these, and has repeatedly dealt with these matters in its consideration of State reports. There can be no doubting the importance placed thus far by the Committee on the realization and, conversely, violation of housing rights; these rights have received considerably more attention from this body than other norms found in the Covenant.2 The question of whether the provision of domestic legal remedies is possible with regard to the right to adequate housing, has been answered affirmatively by the Committee. General Comment No. 4 on the Right to Adequate Housing,

1 Justice Krishna Iyer, Law and the Urban Poor in India, New Delhi 1988, p. xiv. 2 M.C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Thesis submitted for the degree of Doctor of Philosophy, University of Nottingham), Nottingham, September 1992, pp. 360-383 (The Right to Housing). SIM Special 18

identifies six areas capable of judicial scrutiny:

(a) legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions; (b) legal procedures seeking compensation following an illegal eviction; (c) complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; (d) allegations of any form of discrimination in the allocation and availability of access to housing; (e) complaints against landlords concerning unhealthy or inadequate housing conditions; and (f) class action suits in situations involving significantly increased levels of homelessness.3

Even this rudimentary listing shows that many components of housing rights are justiciable within domestic legal contexts, and by inference, under international procedures as well. In addition to these six grounds, a much broader range of housing rights issues and housing components of other rights are also capable of judicial scrutiny and are considered as matters of routine by domestic courts of law throughout the world. The active assertion by people of their rights to dwell, given the existence of a functioning and independent legal system, is ultimately what makes such a right justiciable. At another level, according to Craven:

`The justiciability of a particular issue depends, not upon the generality of the norm concerned, but rather upon the authority of the body making the decision. Thus it is apparent that in a number of cases, national courts have undertaken to apply constitutional provisions of an exceedingly broad and general nature.'4

While other authors have also asserted the necessity of broadly defining the term `justiciability':

3 General Comment No. 4 on the Right to Adequate Housing, paragraph 17. 4 Matthew C.R. Craven, `The Domestic Application of the International Covenant on Economic, Social and Cultural Rights', Netherlands International Law Review, Vol. XL, 1993, at p. 389. Leckie / The Justiciability of Housing Rights

`Justiciability is a deceptive term because its legalistic tone can convey the impression that what is or is not justiciable inheres in the judicial function and is written in stone. In fact, the reverse is true: not only is justiciability variable from context to context, but its content varies over time. Justiciability is a contingent and fluid notion dependent on various assumptions concerning the role of the judiciary in a given place at a given time as well as on its changing character and evolving capability.'5

This paper asserts that many aspects of the right to adequate housing are already justiciable in many domestic legal systems, and that many of these core components of housing rights would consequently be capable of consideration under an Optional Protocol containing a petition procedure. It will examine the legal basis of housing rights, the evolution of these rights, examples from the growing field of housing rights jurisprudence and acts and omissions resulting in housing rights violations. Based on this analysis, the paper will conclude with an elaboration of the justiciable components of housing rights. Finally, prior to undertaking this analysis, a few words on terminology seem to be in order. In examining human rights issues relating to housing, the following terms are most frequently used within the legal sphere: (a) a right to housing; (b) a right to adequate housing; (c) a right to shelter; and (d) housing rights. While each of these terms may seem to imply the same entitlements and obligations, there are, in fact, important distinctions between them. While much can be said on this point, for our purposes, it will be important to make a distinction between rights to shelter and rights to housing or housing rights. The former is a much more restrictive term than the latter, and implies a right to temporary, emergency accommodation, and thus falls far short of the plethora of concerns associated with a full right to adequate housing. Rights to shelter, for instance, would be applicable to homeless persons demanding shelter, and would in this instance be a relevant norm. However, the much broader notion of a human right to adequate housing will include all of the corresponding rights and duties inherent within the legal provisions enshrining this right under international law.

5 Craig Scott and Patrick Macklem, `Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution', University of Pennsylvania Law Review, Vol. 141, No. 1, 1992, p. 17. SIM Special 18

Yet, even the expressions housing rights or a right to adequate housing may not be entirely appropriate for the world as a whole. As such, most housing NGOs and grassroots movements (and increasingly the UN) utilize terms such as the right to a place to live in peace and dignity, which more aptly captures the assertion of rights by the one billion persons currently denied their rights in this respect, and correspond much more accurately to the de facto housing reality in most nations. Commodified visions of housing and the physical associations of this term with a finished structure, while perhaps applicable in the west, have much limited relevance to dwellers in the developing world.

1. The Legal Basis of Housing Rights

The legal basis of housing rights, both internationally and nationally, in many cases provide sufficient foundations upon which to base judicial complaints aimed at vindicating past or pending violations of these rights. The recent interpretive evolution of housing rights, particularly within the UN, have given added clarity to these rights, which in turn, has strengthened the prospects of justiciability.6 Let us briefly list the legal sources of housing rights, prior to examining in more detail the content and obligations stemming from these norms.

ƒ Internationally The human right to adequate housing finds explicit recognition within an array of international legislation, including the Universal Declaration on Human Rights (Article 25(1)), the Covenant on Economic, Social and Cultural Rights (Article 11(1)), the Convention on the Elimination of All Forms of Racial Discrimination (Article 5(e)(iii)), the Convention on the Rights of the Child (Article 27); the Convention on the Elimination of All Forms of Discrimination Against Women (Article 14(2)),7 ILO

6 Scott Leckie, From Housing Needs to Housing Rights: An Analysis of the Right to Adequate Housing Under International Human Rights Law, Human Settlements Programme of the International Institute for Environment and Development, London 1992. 7 Universal Declaration on Human Rights (1948), adopted and proclaimed by UNGA resolution 217A (III) on 10 December 1948; International Covenant on Economic, Social and Cultural Rights (1966), adopted by UNGA resolution 2200A(XXI), 16 December 1966, entered into force on 3 January 1976, 129 States Parties as of 30 June 1994; the International Convention on the Elimination of All Forms of Racial Discrimination (1965), adopted by UNGA resolution 2106A(XX), entered into force on 4 January 1969; the Leckie / The Justiciability of Housing Rights

Recommendation No. 115 on Workers' Housing, the UN Declaration on Social Progress and Development, the UN Declaration on the Rights of the Child, the Vancouver Declaration on Human Settlements, the UNESCO Declaration on Race and Racial Prejudice, the Declaration on the Right to Development and many other texts affirm the human right to adequate housing.8 At the regional level, particularly in the European context, housing provisions can be found in the European Social Charter,9 the European Convention on the Legal Status of Migrant Workers,10 while certain rights established under the European Convention on Human Rights and Fundamental Freedoms (ECHR) have clear implications for the enjoyment of housing rights.11 Several recently established human rights standards recognize the housing requirements of certain social groups such as migrant workers,12 disabled persons,13 the elderly14 and indigenous peoples.15 Other

International Convention on the Elimination of All Forms of Discrimination Against Women (1979), adopted by UNGA resolution 34/180 on 18 December 1979, entered into force on 3 September 1981; the International Convention on the Rights of the Child (1989), adopted by UNGA resolution 44/25 on 20 November 1989, entered into force on 2 September 1990. For a comprehensive listing of all sources of international law recognizing the right to housing, see: Centre on Housing Rights and Evictions, Sources #4: Legal Provisions on Housing Rights: International and National Approaches, COHRE, Utrecht, November 1994. 8 Additional housing rights norms protect `equality of treatment as regards housing for refugees' (Article 21, Convention Relating to the Status of Refugees) and `the rights of migrant workers to equality of treatment in relation to access to housing, including social housing schemes and protection against exploitation in respect of rents' (Article 43, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families). 9 Housing rights provisions are found in Articles 16 and 19(4) of the Charter, and within Article 4 of the Additional Protocol to the Charter. 10 Article 13 of the European Convention on the Legal Status of Migrant Workers, adopted on 24 November 1977. 11 See Section III below for a brief review of housing-related jurisprudence under the ECHR. 12 See Article 43(1)(d) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990). The Helsinki Final Act (1975), adopted on 1 August 1975, also includes reference to migrant workers in this manner. 13 Article 29 of the Community Charter of Fundamental Social Rights (1989), SIM Special 18

instances of the re-affirmation of the right to adequate housing have also increased during the past few years such that numerous UN and other resolutions re-confirming that housing as a fundamental human right have been adopted since 1988.16

ƒ Nationally Fifty-two national Constitutions address housing issues. Many of these provisions contain explicit references to the right to adequate housing, whereas others suggest more the general responsibility of the State to ensure adequate housing and living conditions to the population at large. Approximately 38 percent of the world's Constitutions refer to housing or housing rights.17 There are, of course, no guarantees that the inclusion of housing rights within the constitutional framework will inevitably lead to this right achieving comprehensive implementation throughout a given society, and there is probably little empirical connection between the de jure recognition of this right within Constitutions and the de facto enjoyment of this right. Some have argued, of course, that unconditional rights to shelter should not be enshrined within Constitutional frameworks.18 Nevertheless, the establishment within Constitutions of both individual and family rights to adequate housing and the corresponding

adopted on 8 December 1989 in Strasbourg. 14 Article 4 of the Additional Protocol to the European Social Charter, adopted on 5 October 1988, explicitly addresses housing within the context of the rights of the elderly. 15 Several articles of the (draft) Declaration on the Rights of Indigenous Peoples, as agreed upon by members of the UN Working Group on Indigenous Populations, at its eleventh session, 30 July 1993 directly enshrine housing rights concerns, e.g. Articles 22, 23, and 31. 16 See, inter alia, UN resolutions: 41/146 of 4 December 1986 and 42/146 of 7 December 1987 (UNGA); 1987/62 of 29 May 1987 (Economic and Social Council); 1986/36 of 12 March 1986, 1987/22 of 10 March 1987 and 1988/24 of 7 March 1988 (Commission on Human Rights); 1994/L.27 of 26 August 1994, 1993/36 of 26 August 1993, 1992/26 of 27 August 1991 and 1991/26 of 29 August (Sub-Commission on Prevention of Discrimination and Protection of Minorities). 17 See annex 1 of the Second Progress Report of the Special Rapporteur on Housing Rights, Mr. Rajindar Sachar (UN Doc. E/CN.4/Sub.2/1994/20) for a complete listing of national Constitutional sources of housing rights. 18 Robert Ellickson, `The Untenable Case for an Unconditional Right to Shelter', in: Harvard Journal of Law & Public Policy, Vol. 15, 1992, p. 24. Leckie / The Justiciability of Housing Rights

series of State obligations to create the legal, social and economic conditions necessary for the satisfaction by all of this right, constitute important legal foundations for further judicial and other actions geared towards ensuring this right.19 Civil society-led legal struggles towards entrenching housing rights standards within national Constitutions are currently underway in India, South Korea, South Africa and several other countries. In many countries, if not most, it remains difficult at best to base legal complaints concerning housing rights before a court of law exclusively upon Constitutional provisions. At the same time, many municipal courts remain reluctant to entertain complaints dealing essentially with internationally recognized economic, social and cultural rights, including housing rights. In only very few countries is reference regularly made to the Covenant on Economic, Social and Cultural Rights in judicial proceedings.20 Constitutional housing or housing rights provisions can act as a solid basis upon which to construct implementing legislation concerning the bundle of entitlements and obligations arising from the right to adequate housing. Indeed, all countries, notwithstanding constitutional housing norms, maintain domestic laws relating to one degree or another on housing rights. Only a relatively small number of countries, however, have enacted domestic legislation giving discernable substance to certain elements of housing rights. Even where ostensibly favourable legislation has been developed, this has often acted more as a barrier to the realization of housing rights, rather than playing a facilitating role.21

19 See, for instance: Karl L. Cambronne, `Towards a Recognition of a Constitutional Right to Housing', UMKC Law Review, Vol. 42, No. 3, p. 362. 20 Research into the degree to which the Covenant had been utilized in housing rights cases before Kenyan Courts, kindly carried out for the author by Ms. Katie Yurchak, found that not in one case had the Covenant, or any other international standards binding on the Kenyan Government been raised. Similar research kindly carried out by Nancy H. Le with regard to the United States judicial system and the application of international housing rights standards in housing cases also found no evidence of courts applying such norms in judicial decisions. 21 An expansive array of legislation will or can affect the scale to which the right to housing is enjoyed in any society. In addition to general housing laws and landlord- tenant laws, legislation on planning, zoning regulations, building codes, land and land- use laws, expropriation regulations, property laws, environmental laws and many other legal domains can affect the realization of housing rights. A remarkable study entitled The SIM Special 18

The subsequent four examples of national legislation indicate the different legal methodologies employed by several countries towards incorporating housing rights and related norms into the domestic legislative sphere. In the Philippines, The Urban Development and Housing Act of 1992 (Republic Act No. 7279), seeks to regulate the eviction and demolition process, as well as delineating a series of regulations to be followed by public officials in carrying out evictions or demolitions when these are allowed under the law.22 Section 44 of Republic Act No. 7279 also provides for a three year moratorium on both evictions and demolitions. French Law 90/449 of 31 May 1990 (visant á la mise en oeuvre du droit au logement, provides a general housing rights assurance to the population at large. It provides in Article 1 that:

`The guarantee of a right to housing constitutes a duty of solidarity for the nation as a whole. Any person or family finding difficulties because of the inability of his resources to meet his needs has the right to collective assistance under conditions fixed by law that will ensure access to decent and independent housing where he can maintain himself.'

Housing legislation in the United Kingdom establishes a statutory duty on local authorities to ensure the provision of housing to homeless persons in priority need under Part III of the Housing Act of 1985 in Sections 63, 65 and 66, revealing that it can in fact be a statutory legal duty of government to provide housing on request to those in need on request. Despite the many innovative and positive affects this legislation has had in housing homeless persons, it remains limited, and in some respects fundamentally flawed.23

Evaluation of Legal and Regulatory Constraints to Housing Activity in India (and as far as the author is aware the only of its kind) currently being carried out by two Indian housing groups, YUVA (Bombay) and TARU (Delhi), examines in great detail several relevant pieces of Indian housing-related legislation and the jurisprudence generated around each, with a view to determining how these laws have assisted or constrained popular housing activity. 22 See Section 28 of Republic Act No. 7279. 23 For example, the provisions of the Act outline in great detail what instances could constitute `intentional homelessness'. Not uncommonly, excessively broad interpretations of this term are applied by local housing authorities to families seeking accommodation. In a bizarre application of the `intentionality' principle in London in 1988, the Tower Hamlets Local Council informed ten homeless Bangladeshi families that they would face Leckie / The Justiciability of Housing Rights

In India, the Madhya Pradesh Act No. 15 of 1984, Slum Dwellers Protection Act provides legislative security to landless persons who have occupied (squatted) land, subject to certain conditions, that they shall be allowed to remain on such land. Section 3(1) of the Act, thus provides that:

`Notwithstanding anything contained in any law for the time being in force, the land occupied by a landless person in any urban area on the 10th day of April 1984 shall subject to the provisions of sub-section (2) be deemed to have been settled in his favour on the said date.'24

The aforementioned excerpts of national legislation disclose, albeit in a very partial sense, that housing rights standards of the international sort can in fact be incorporated into domestic legal structures. It is not a problem of law to do as much, but rather one of perception and political will that have prevented such activities from occurring more frequently. At the same time, it must be emphasized that the comprehensive nature of housing rights necessarily implies the relevance of a broad range of legislation to these rights; many areas of national law in any State will impact to one degree or another upon the full realization of housing rights. When domestic laws addressing these areas are clearly incompatible with the purposes, aims and objectives of the housing rights provisions enshrined in international human rights treaties, such legislation should be subject to repeal, amendment or revision. And such legislative alteration could well be a key objective of persons and groups submitting complaints under a future Optional Protocol. Generally elaborated, therefore, legislation which will have some bearing on the satisfaction of housing rights in any given country, include: (a) Landlord and Tenant Laws; (b) Security of Tenure Laws; (c) Protection from Eviction Laws; (d) Laws on Maintenance and Repairs; (e) Rental Laws; (f) Property Laws; (g) Laws on Housing Subsidies and Benefits; (h) Homelessness Legislation; (i) Land Use and Distribution Laws; (j) Housing Finance Laws; (k) Building Codes and Standards Legislation; (l) Laws Regulating Property Speculation; (m)

eviction from their temporary accommodation within two weeks because they had made themselves intentionally homeless by leaving accommodation in Bangladesh! (Guardian 11 May 1988). Moreover, the Homeless Persons Act applies solely to families, greatly limiting the utility of this legislation for homeless individuals towards accessing housing. 24 This Act, in Section 5(1), also establishes substantial penalties on any person deemed to have violated the provisions of the law. SIM Special 18

Environmental Health and Planning Laws; (n) Laws Relating to the Privatization of Public Housing; (o) Non-Discrimination Laws (Race, Gender, etc.); (p) Compensation Laws; (q) Laws Availing Legal Aid and Judicial Remedies and others.25

2. The Interpretive Evolution of Housing Rights

The right to adequate housing is often misinterpreted and consequently disavowed and sometimes blatantly infringed by the very entities entrusted with ensuring the right. While it remains rare for informed governmental officials to deny the existence of housing rights, it is still very common for interpretations of these rights by governments to be excessively restrictive, ineffectual and, in many cases, manifestly inconsistent with the contents of housing rights under international human rights law. At an entirely different level, but of equal importance, popular perceptions of `rights' and `law', and the frequently negative attitude displayed towards any legal matters by often huge segments of a population for whom the law, in whatever manifestation they may have encountered it, has disfavourably affected their lives and struggles for survival has had a bearing on the use of housing rights norms by the beneficiaries of these rights. Most people, most lawyers, most civil servants, most judges and most public officials are entirely unaware of the existence, let alone complexities, of the field of international human rights law, despite major progress during the past several years. While this is an important point in any analysis, it is particularly relevant to discussions pertaining to economic, social and cultural rights where those advocating for the realization of these rights, the right holders and the relevant public officials responsible for implementing and enforcing these norms, for the most part, remain unaware of laws, legal procedures and other components of human rights law. This crucial point is often forgotten by analysts of economic, social and cultural rights not used to the practical aspects of seeking in an advocacy role, the enforcement of these rights. For instance, it must be recognized by those involved with international human rights activities, that a large majority of non-

25 On the broad dimensions of law relevant to housing rights in the United Kingdom, see: Geoffrey Randall, Housing Rights Guide, SHAC, London 1994. Leckie / The Justiciability of Housing Rights

governmental activities relevant to these rights are not undertaken by human rights groups, but rather by small, geographically limited and one issue oriented groups, not by the legal and/or human rights community. These groups, movements and campaigns are, in fact, natural allies to the further development of economic, social and cultural rights, and it is only through a consideration of their perspectives on rights such as the right to housing that these rights can take on real significance and can be used. It is therefore a positive development that much of the advancement associated with housing rights have integrated such approaches into official legalistic analyses of these rights. Indeed, housing rights provisions under international law have undergone a significant evolutionary process during recent years. Despite still common visions of housing rights constituting exclusively a right to be provided by the State with a suitable dwelling, a series of interpretive and analytical exercises undertaken since the late 1980's have shown the broader dimensions of this widely recognized norm. The Committee on Economic, Social and Cultural Rights and others have amply recognized that housing rights are infinitely more complex than the still sometimes cited `right to a roof over one's head'. Housing must be viewed for what it actually is in most parts of the world; a popular process through which people themselves seek out, create options and individually and collectively attempt to solve their housing dilemmas, most frequently on their own, with little or no positive involvement by the State. In this regard, housing-associated freedoms, in particular the right to fully participate within the housing process are fundamental. While the substantive provision of an adequate dwelling to persons and families without accommodation forms a key aspect of the housing rights dynamic (a right to housing), numerous additional concerns also form the basis of housing rights claims. In this respect, consideration should be given to issues such as the provision of security of tenure (and consequent protection against arbitrary or forced eviction), non- discrimination in the housing sphere, equality of treatment and access vis-à-vis housing, questions of housing affordability, landlord-tenant relations of all kinds and others. Equal attention must be placed in this respect on the different housing needs of distinct groups within society and the duty incumbent upon governments to ensure adequate access to and provision of housing resources suited to the needs of the disabled, the chronically ill, persons SIM Special 18

with HIV/AIDS, migrant workers, the elderly and other groups. Any attempt to delineate the justiciable dimensions of housing rights must be carried out in full recognition of the prevailing global housing reality. For instance, if one ignores the fact that anywhere between 40-80 percent of all housing built in Third World cities is built by the dwellers themselves, focusing on the direct provision of finished dwellings by the State will miss the point by a wide margin, and fail miserably in achieving a wider satisfaction of housing rights obligations. If there is anything that is abundantly clear regarding housing processes over the past century, it is the simple truth that no State has shown an ability to house its populace in State-built housing resources. While social (or public) housing remains a crucial dimension of the total approach towards satisfying collective housing requirements in many countries, such approaches can only ever solve part of a larger problem. Consequently, international housing policy has shifted discernably away from this approach, to what are generically labelled as `enabling strategies'. While enabling strategies may involve the construction of some social housing resources directly by the State, such strategies primarily infer the responsibility of the State to create maximally conducive conditions throughout society whereby everyone can have sustained, suitable, affordable and accessible housing resources. This means that the State must regulate land use, housing and land costs and landlord-tenant relations, stimulate self-help housing initiatives, ensure the universal provision of tenure security, and prohibit forced evictions and housing discrimination. The term `housing rights' will obviously take on a different level of significance for a homeless person than for a well-housed villa dweller. It is unlikely that the latter dweller will encounter any housing dilemmas he or she can not solve exclusively through personal means. The hundreds of millions of homeless dwellers throughout the world, however, require and are entitled to direct assistance – whether positive or negative in nature – from the State, through various mechanisms. Ultimately, the human right to adequate housing implies the right to security in a place and comprises an assertion of identity and uniqueness of culture. It is a right embodying equality of access, equal protection of the law and equal benefit of the law. Housing rights include the right to participate in all aspects of the housing decision-making process, and to order and to influence one's living environment. And yet, one needs to constantly ask how the State views the housing Leckie / The Justiciability of Housing Rights

question; as a means of supplementing the incomes of the already well- off real estate sector and private developers, or as a method of ensuring a dignified, healthy and secure life to all citizens? Most housing advocates and governments have realized that the State is probably not the ideal constructor of housing (particularly in the developing world), but rather its appropriate role should be to employ its legislative and regulatory powers to stimulate and facilitate the development of housing activities that are designed and implemented by the targeted beneficiaries. Unfortunately, however, a majority of governments continue, and in many cases unashamedly, to favour the interests of those sectors set to benefit most through an increase in land value, housing costs and the accumulation of capital. In such nations, the rights of the homeless, the inadequately housed, those with special housing needs and those unable to access affordable housing in a legal manner, remain of peripheral concern, despite the legal acceptance by all governments of housing rights obligations. Similarly, account must be taken of the essentially `particularistic' nature of many States, whereby social relations are guided much more by personal contacts, corruption and favour-making, than grounded firmly in the rule of law, which has obvious negative side-effects on the realization of housing rights.26 This raises the question as to whether universal principles on housing rights are even identifiable, let alone enforceable or justiciable. This query, requires, of course, an affirmative response, and the flexibility (margins of appreciation) of human rights law to take national, regional and other distinctions into account is by now, well-established. United Nations activities on the promotion of the right to adequate housing have grown markedly since the late 1980s, such that international housing rights norms have been elucidated and received more attention and scrutiny than ever before. From 1990 onwards, new normative standards have been developed and proposed, inventive UN housing rights mechanisms have been established and governments have been presented with increasingly well-informed and inquisitive queries as to their compliance with housing rights standards. Although the international evolution of housing rights has not necessarily meant the

26 See the excellent analysis of this point in: Hans Blomkvist, `Housing and the State in the Third World: Misperceptions and Non-perception in the International Debate', Scandinavian Housing & Planning Research, Vol. 6, 1989, pp. 129-141. SIM Special 18

incorporation of these measures within the national and local context, there can be no mistaking the fact that housing rights have assumed a position of growing importance under international law. Without exception, every government has explicitly recognized that adequate housing is a fundamental human right under international law. Though on the surface a favourable situation, such legal recognition at the international level has rarely been transformed into effective domestic legislative and policy measures seeking to apply and implement – in good faith – international obligations relevant to housing rights. Few governments could honestly claim to have devoted the `maximum of its available resources' to the attainment for everyone, within the shortest possible time-frame, of the right to adequate housing as enshrined in the Covenant on Economic, Social and Cultural Rights, nor could most governments claim to have removed all legislative or other obstacles which continue to prevent fulfilment of housing rights. As far as specific attention to the right to adequate housing is concerned, the Committee has undertaken a wide range of constructive activities within the context of monitoring and promoting State compliance with the Covenant. Several of these include: (a) the complete revision of the `reporting guidelines' for State reports as required under Articles 16 and 17 of the Covenant; (b) the convening of two `general discussions' on housing rights; (c) the adoption of `General Comment No. 4 on the Right to Adequate Housing (Article 11(1) of the Covenant)'; (d) the adoption of concluding observations deeming several States parties to the Covenant to have violated Article 11(1) of the Covenant, particularly because of the practice of forced evictions; and (e) the provision of very specific legislative and policy recommendations to States parties to the Covenant concerning the provisions of Article 11(1).27 Article 11(1) of the Covenant on Economic, Social and Cultural Rights is widely accepted as one of the most significant legal sources of the right to housing and has thus far received the bulk of consideration of any foundation of housing rights under international human rights law.28

27 See, for instance, UN Docs. E/1991/23 and E/C.12/1990/8, p. 64. 28 See, for instance: Scott Leckie, `The UN Committee on Economic, Social and Cultural Rights and the Right to Adequate Housing: Towards an Appropriate Approach', Human Rights Quarterly, Vol. 11, No. 4, November 1989, pp. 522-560; `General Comment No. 4 on the Right to Adequate Housing (Article 11(1) of the Covenant), adopted by the Leckie / The Justiciability of Housing Rights

There are several points regarding the content of the right to housing which are clear from the wording of Article 11, while other aspects have emerged progressively as the Committee on Economic, Social and Cultural Rights and other bodies have interpreted and defined this right. As the right to housing is enhanced by the term `adequate', the right is not simply a right to a dwelling, but a right of access to a certain standard of housing and surrounding elements. Further, the right to housing is part of the broader right to an adequate standard of living which is defined to include, at the very least, adequate food, clothing and housing. These norms are by no means intended to be static concerns dealing with the satisfaction of bare minimum needs. Rather `everyone' is also possessive of the right to `a continuous improvement of living conditions'. In its General Comment No. 4, the Committee has provided States with detailed guidance vis-à-vis this right, the legal obligations of States under the Covenant and what this right must be taken to mean. In the Committee's view, for instance, the right to housing should not be interpreted in a narrow or restrictive sense which equates it with the shelter provided by merely having a roof over one's head or views shelter exclusively as a commodity. Rather the norm should be seen as the right to a place to live in security, peace and dignity.29 The Committee has adopted two over-riding principles of interpretation of the right to adequate housing; that it is universal and that it must not be interpreted narrowly.30 General Comment No. 4 emphasizes that the focus of the right to adequate housing must be on disadvantaged groups, that policies should not favour advantaged social groups at the expense of others and that effective monitoring must involve detailed information about vulnerable and disadvantaged groups, including low income groups. It is clear from the context of the right to housing within the Covenant as a whole that the right does not merely oblige the government to provide housing to those in need but includes many regulatory and

UN Committee on Economic, Social and Cultural Rights at its sixth session (1991), UN Doc. E/C.12/1991/4, pp. 114-120; and Philip Alston and Gerard Quinn, `The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights', Human Rights Quarterly, Vol. 9, No. 2, May 1987, pp. 156-229. 29 General Comment No. 4, paragraph 7. 30 See paragraphs 6 and 7 of General Comment No. 4. SIM Special 18

legislative obligations on governments to, for example, provide security of tenure, protect against unjustifiable rent increases, prevent demolition of homes and prohibit discrimination. Many components of the right to housing are almost universally justiciable, such as the protection from eviction, compensation following an illegal eviction, security of tenure rights, landlord and tenant laws, harassment, discrimination and rent regulation. In elaborating the legal entitlements arising from the recognition of housing rights within Article 11(1), the Committee has asserted that the following seven principles provide a context for defining housing `adequacy': legal security of tenure; availability of services, materials and infrastructure; affordable; habitable; accessible; location; and culturally adequate.31 That housing rights responsibilities are now a fundamental component of the State obligations arising under international law is not disputed. Under the general obligations clause of the Covenant found in Article 2(1), States parties are required to take legislative and other steps to the `maximum of its available resources', with a view to achieving `progressively' the full realization of the rights recognized in the Covenant, including the right to adequate housing. Under the same article, States are also required to ensure that no form of racial or other manifestations of discrimination are tolerated to the detriment of the enjoyment of the rights found in the Covenant. As practice has all too often shown, States frequently seek to conceal themselves from international critiques behind the loose terminology utilized in Article 2. However, as linguistically imprecise as these terms may be, there now exists a degree of agreement as to the general duties of States under the Covenant, which establish important principles of international law on housing rights. For instance, the Committee has declared that even when `available resources' are verifiably inadequate, States must nonetheless strive to ensure the widest possible enjoyment of the relevant rights under prevailing circumstances, and demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, these minimum responsibilities.32

31 See paragraph 8 of General Comment No. 4. 32 General Comment No. 3 (1990): the nature of States parties' obligations (Article 2(1) of the Covenant), UN Doc. E/C.12/1990/8, pp. 83-87. Leckie / The Justiciability of Housing Rights

The `progressive realization' clause imposes an obligation on States to move as expeditiously and effectively as possible towards the goal of realizing fully the right to housing, and as an obligation, exists independently of any increase in available resources. Any deliberately retrogressive measures affecting housing or other rights could only be justified by reference to the totality of the rights provided for in the Covenant and in the context of the full utilization of a States maximum available resources. Above all, this clause requires effective and equitable use of combined resources immediately.33 Concerning the relationship between housing rights and the principle of non-discrimination, the Committee on Economic, Social and Cultural Rights has established that the rights contained in Article 2(2) of the Covenant to exercise the right to housing and other social and economic rights free of discrimination because of `race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status' imposes an immediate obligation on the State to protect citizens from discrimination in access to food, clothing, housing and in all other social and economic rights.34 At another level, under the Covenant all States possess a minimum core obligation to ensure the satisfaction of essential levels of each of the rights found in this decisive legal text. As such, any State in which any significant number of individuals is deprived basic shelter and housing is prima facie failing to perform its obligations under the Covenant.35 The obligation to respect housing rights requires the State, and thereby all of its organs and agents to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those materials or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs. In this context, governments should desist from restricting the right to popular participation and must accept the corresponding commitment to facilitate and create economic, social and

33 Ibidem. 34 Six detailed principles elaborated in the Limburg Principles, which are now widely agreed upon as a means of interpreting the Covenant, address the non-discrimination clauses contained in Article 2(2) of the Covenant, see paragraphs 35-40 of the Limburg Principles. 35 General Comment No. 4, paragraph 10. SIM Special 18

political conditions conducive to self-help initiatives by the beneficiaries of housing rights, as well as rights to freely organize and assemble, which are essential for the assertion of demands by dwellers or tenants groups. Of particular importance, the responsibility to respect housing rights requires States to refrain from carrying out, advocating or condoning the practice of forced or arbitrary evictions of any persons or groups from their homes. States must also respect people's rights to build their own dwellings and order their living environments in a manner which most effectively suits their culture, skills, needs and wishes.36 Scrupulously honouring the right to equality of treatment, principles of non- discrimination, the right to privacy of the home and other relevant rights form constituent aspects of the duty to respect. While the duty to respect essentially implies a series of limits of State action, the obligation to promote compels governments to recognize the multifaceted human rights dimensions of housing and to take steps to ensure that no measures are taken with the intention of deliberately eroding the legal and practical status of this right. Moreover, comprehensive legislative review should take place, with any existing legislation or policies negatively affecting the exercise of the right to housing subject to repeal or alteration. The promotion function additionally requires States to place sufficient legal and policy emphasis on the full realization of housing rights, through a series of active measures including national and/or local legislative recognition of the right, the incorporation of housing rights imperatives into housing and related policies, and the identification of discernable `benchmarks' towards the full enjoyment of housing rights by all sectors of society.37

36 In Third World Cities, anywhere between 40-80 percent of all new housing is built by the eventual occupants themselves; most often outside legal regulations. See: J. Hardoy and D. Satterthwaite, Squatter Citizen: Life in the Urban Third World, London 1989. 37 On the need for more intensive action on developing housing rights indicators, see: M. Kothari, `The Human Right to Housing: Problems and Perspectives of Developing ideal Indicators' (Paper prepared for the UN Expert Seminar on `Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights', held in Geneva from 25-29 1993). Also, among other developments geared toward more accurately measuring the degree to which the right to housing is in place, the UN Centre on Human Settlements (Habitat) has developed a set of key indicators designed to capture the essential elements of the shelter sector performance in all Leckie / The Justiciability of Housing Rights

The Committee has emphasized that `policies and legislation should not be designed to benefit already advantaged social groups at the expense of others.'38 Further refinement of the policy aims required with the recognition of housing rights demand that governments adopt national housing strategies defining the objectives for the development of the housing sector, identifying the resources available to meet these goals, the most cost-effective way of using them and setting out the responsibilities and time-frame for the implementation of the necessary measures. For both reasons of relevance and effectiveness, as well as in order to ensure respect for other human rights, such a strategy should reflect extensive genuine consultation with, and participation by, all those affected, including the homeless, the inadequately housed and their representatives. Subsequent steps must be taken by governments to ensure co-ordination between ministries, regional and local authorities in order to reconcile related policies with the obligations arising from the Covenant. Accurately assessing the degree to which the right to housing remains unsatisfied or denied exists as a further element of the State obligation to promote the norm. An identifiable effort must be made to monitor and identify where and to what extent the right is not in place, and consequently to target housing policies and legal measures towards attaining the right for everyone in the shortest possible time. The obligation to protect the right to housing obliges the State and its agents to prevent the violation of any individual's rights to housing by any other individual or non-State actor. Housing rights beneficiaries must, therefore, be protected from abuse by landlords, property developers, land owners or any other third party capable of abusing these rights. Where such infringements do occur, public authorities should act to preclude further deprivations as well as guaranteeing access to legal remedies for any infringement caused. Effective measures protecting persons from forced evictions, racial or other forms of discrimination, harassment, withdrawal of services or other threats must also be established. The obligation to fulfil the right to adequate housing is the most interventionary in nature, involving issues of public expenditure,

countries (UN Doc. HS/C/13/INF.7 [Housing Indicators Programme], 27 April 1991). 38 General Comment No. 4, paragraph 11. SIM Special 18

governmental regulation of the economy and land market, housing subsidies, monitoring rent levels and other housing costs, the provision of public housing, basic services and related infrastructure and taxation and subsequent redistributive measures. On the issue of housing finance and budgetary allocations, States must establish forms and levels of expenditure adequately reflecting society's unmet housing needs, and which are consistent with the commitments arising from the Covenant and other legal sources enshrining housing rights. Primarily, the duty of fulfilment comprises those active measures by government necessary for guaranteeing for each person under its jurisdiction opportunities to access the entitlements of housing rights which cannot be obtained or secured through exclusively personal efforts. Finally, under the Covenant, the international community possesses certain identifiable obligations under international law regarding the enforcement of housing rights norms, including: a) refraining from any coercive measures designed to force a State to abrogate or infringe its housing rights obligations; b) providing financial or other assistance to States affected by natural or manmade disasters, resulting in, inter alia, the destruction of homes and settlements; c) ensuring the provision of shelter and/or housing to refugees fleeing persecution, civil strife, armed conflict, droughts or famine; and d) responding to abject violations of housing rights carried out in any State. In addition to the housing rights developments which have taken place relative to the Committee on Economic, Social and Cultural Rights, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities has also greatly expanded attention and analysis this right in recent years. The two principal housing rights activities of the Sub-Commission relate to the work of the UN Special Rapporteur on Promoting the Realization of the Right to Adequate Housing,39 Mr. Rajindar Sachar and efforts on the practice of forced

39 In 1993 the UN Commission on Human Rights approved the appointment of the Special Rapporteur on Housing Rights to undertake a three year study on developing practical measures toward the realization of this human right (Commission on Human Rights decision 1993/103 (Promoting the realization of the right to adequate housing) (UN Docs. E/1993/23 and E/CN.4/1993/122, p. 281). To date the Special Rapporteur has submitted three reports to the Sub-Commission, with his final report to be submitted in 1995. See the reports of the UN Special Rapporteur on Housing Rights, Justice Rajindar Sachar, as contained in UN Docs. E/CN.4/Sub.2/1992/15; E/CN.4/Sub.2/1993/15; and E/CN.4/Sub.2/ 1994/20. Leckie / The Justiciability of Housing Rights

evictions. The appointment of such a rapporteur is significant in that it represents one of the few occasions that a specific economic, social or cultural right has been subjected to this sort of analysis and promotion at the international level. Among other things, the Special Rapporteur has been requested by the Sub-Commission to develop a legal framework giving further substance to housing rights and to explore how the UN human rights machinery could more effectively promote the realization of this right. The Special Rapporteur was also requested to examine the feasibility of developing new international legislation on housing rights. Sachar's initial working paper (1992) focused primarily on what he deemed to be the causes of the global housing crisis and various legal issues relating to the human right to adequate housing. The principal reasons for the still widespread denial of housing rights throughout the world, according to the Special Rapporteur were: 1) the failures of government and development policies; 2) housing discrimination; 3) environmental health, disasters and housing; 4) the withholding of information crucial to housing; 5) exploitation in the housing sphere; 6) speculation and the commoditization of housing; 7) forced evictions; 8) armed conflict; 9) the criminalization of housing; 10) structural adjustment programmes and debt; 11) poverty and the deprivation of means; and 12) the perpetuation of homelessness.40 The Special Rappor- teur's first progress report (1993) provides a detailed legal analysis into the legal obligations of States to respect, protect and fulfil housing rights, resulting in the development of an innovative synthesis of governmental obligations based on international legal standards.41 The Special Rapporteur's second progress report (1994), with a view to clarifying the nature of the right to adequate housing and the still common neglect of this norm, outlined several misconceptions and misinterpretations of the right to adequate housing which continue to hinder efforts to fulfil this right in a universal sense. These include: 1) social housing is invariably suspect; 2) national wealth increases home ownership; 3) housing rights are less fundamental than property rights; 4) the private sector or the market will guarantee housing for all; 5) legislative recognition of housing rights is sufficient to ensure the realization of these rights; 6) housing rights are non-justiciable; 7) most

40 E/CN.4/Sub.2/1992/15, pp. 4-11. 41 E/CN.4/Sub.2/1993/15. SIM Special 18

housing is built by the public and private commercial sector; 8) measuring homelessness is impossible; 9) squatters are criminals; 10) housing is a problem only in the developing countries; 11) public expenditure on housing is sufficient; and 12) the right to adequate housing is unrelated to other social concerns.42 One of the most resourceful contributions of the Special Rapporteur concerns his unyielding support for the eventual adoption by the United Nations of an International Convention on Housing Rights. Sachar's 1994 report examines both the prospects and problems of adopting a new housing rights treaty, and includes a draft Convention based upon prevailing housing rights principles under international human rights law.43 Because the mandate of the Special Rapporteur will extend only until August 1995, it remains to be seen whether the UN human rights bodies will pursue further action on housing rights.44 One already debated option for continuing this focus centres on the possible appointment of a Special Rapporteur on Housing Rights at the level of the Commission on Human Rights following the cessation of Sachar's mandate.45 In addition to the activities of the Special Rapporteur, the Sub- Commission has been instrumental in generating international attention to the practice of forced evictions as an issue of human rights. This expert body has adopted four consensus-based resolutions dealing with forced evictions as `a gross violation of human rights, in particular the right to adequate housing'.46 The Commission on Human Rights has also given

42 E/CN.4/Sub.2/1994/20, paragraphs 17-45. 43 E/CN.4/Sub.2/1994/20, Chapter IX `A Draft International Convention on Housing Rights', pp. 27-35. 44 UN Commission on Human Settlements resolutions 14/6 in operative paragraph 2 invites `all States to cooperate with and assist the Special rapporteur on promoting the Realization of the Right to Adequate Housing and to submit to him any information they deem relevant towards the completion of his tasks.' 45 For instance a resolution (1994/L.18) entitled `Measures towards the full realization of economic, social and cultural rights', adopted by consensus on 26 August 1994 by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, requests the Commission on Human Rights to: `consider the desirability of appointing thematic rapporteurs entrusted with investigating specific economic, social and cultural rights, in particular the right to adequate housing...' 46 Sub-Commission resolutions 1991/12, 1992/14, 1993/41 and 1994/L.44. An exhaustive survey of all international human rights activity on forced evictions is included in: Centre on Housing Rights and Evictions, Sources #3: Forced Evictions and Leckie / The Justiciability of Housing Rights

growing prominence to housing rights issues and in 1994 considered a detailed analytical study on forced evictions and international law submitted to it by the UN Secretary General.47

3. Overview of International Housing Rights Jurisprudence

Judicial and quasi-judicial attention and action on the right to adequate housing and related rights has been considerably more extensive than commonly held. Several regional and other human rights mechanisms, UN treaty bodies and a variety of national and local courts have directly considered housing rights issues in their various judgments and decisions, sometimes in support of broad interpretations of existing law, and in others where more restricted views prevailed. International and national governmental accountability to respect, protect, promote and fulfil housing rights is well established, however measures of implementation and, in particular enforcement remain inadequate. In the prevailing limitations of international or national judicial remedies for many constituent elements of housing rights, the transformation of sets of rules relating to these rights into concrete actions by states will remain at best fragmentary. In addition, the continuing reluctance of domestic courts to adjudicate issues of a socio-economic rights nature such as housing rights – even in those instances where a nation's judiciary is aware of the position of international law in this regard – has led to a relative paucity of domestic housing rights jurisprudence.48 This is true at least as far as reference to the applicability of international legal sources of housing rights within domestic jurisdictions is concerned.49 Of course, the broader domain of national housing law has generated extensive case-law within States, particularly concerning landlord-tenant relations, housing

Human Rights: A Manual for Action, COHRE, Utrecht, June 1993. 47 E/CN.4/1994/20. 48 See, however, Cases 93/10721-93/13651 (Cour d'Appel de Paris), decision of 17 September 1993, where Judge Texier based his decision to delay the eviction of dozens of residents, at least on part, on the clauses of Article 11(1) of the Covenant. 49 On the application of international economic, social and cultural rights provisions within domestic legal systems, see: Matthew Craven, `The Domestic Application of the International Covenant on Economic, Social and Cultural Rights', in: Netherlands International Law Review, Vol. XL, 1993, pp. 367-404. SIM Special 18

discrimination, rent conflicts, security of tenure and evictions.50 Domestic jurisprudence can, of course, assist in clarifying the local affect of housing rights provisions. Although there have been few formal references within judicial contexts to the numerous sources of housing rights, due in particular to the effective absence of a forum to which such matters may be submitted, a body of `international housing rights jurisprudence' is gradually emerging.51 It may, therefore, be useful to briefly examine the approaches taken by two prominent European human rights bodies: the European Commission/Court on Human Rights and the European Committee of Independent Experts. This will be followed by a brief elaboration of some of the `concluding observations' addressing housing rights themes of the Committee on Economic, Social and Cultural Rights directed at States parties to the Covenant.

ƒ European Convention on Human Rights and Fundamental Freedoms Although a right to housing is not contained in the European Convention on Human Rights and Fundamental Freedoms (1950), several cases considered by the Commission and Court have directly dealt with housing issues. Two decisions of the European Commission on Human Rights have explicitly declared that States parties to the ECHR were under no legal obligation to provide accommodation to citizens, indicating a flaw in the text, as well as a degree of judicial creativity less intensive than in some national courts. In a 1975 decision dealing with the right to privacy (Case 4560/70), the Commission ended its query of admissibility in the following terms:

`The applicant finally submits that the local authority for the area in which she lived was in breach of Article 8 of the Convention by its failure to

50 See, for instance: Martin Partington and Jonathan Hill, Housing Law: Cases, Materials and Commentary, London 1991. 51 International housing rights jurisprudence would incorporate all decisions, observations, views and judgments of all international and regional human rights organs focusing in any manner on housing rights as established under law, or jurisprudence concerning other rights closely linked to housing rights. Consequently, international and regional case-law on the right to privacy, the rights of migrant workers to accommodation, non-discrimination within the housing sphere, the right to the peaceful enjoyment of possessions, the right to security of the person, the right to family life, the right to life and others have dealt with housing rights issues. Leckie / The Justiciability of Housing Rights

exercise its discretionary power compulsorily to acquire the freehold of her accommodation (...) It is true that Article 8(1) provides that the State shall respect an individual's home and not interfere with this right. However, the Commission considers that Article 8 in no way imposes on a State a positive obligation to provide a home.' (emphasis added)

The Commission re-affirmed this perspective in another case (5727/72) by stating `[i]t is true that the reference in Article 8 to “home” – as the Government submits – is clearly concerned with the respect for the home as an existing entity and could not imply a right to be provided with housing accommodation.' The Commission, added, however, that `even if a discriminatory policy in the field of allocation of public housing could raise an issue under Article 8 in conjunction with Article 14 of the Convention, the Commission notes that the applicants, although claiming to have been excluded from public housing because of their religion, have not produced any details or evidence of any specific incident of discrimination relating to themselves.'52 Though the Commission has at least twice decided along these lines, in the Case of Guzzardi vs Italy, it established that while no obligation to provide housing can be identified in the ECHR, public authorities are under an obligation to ensure that they do not impose intolerable living conditions on a person or family.53 Whereas in Gillow vs United Kingdom, the European Court held unanimously that the application of legislation which restricted the applicants' right to occupy their house on the island of Guernsey violated Article 8 of the Convention, although the legislation itself did not.54 A 1989 case (Mellacher and others vs Austria) judged by the European Court on Human Rights dealt with the application of Article 1 of Protocol No. 1 of the Convention on the `peaceful enjoyment of possessions' in the context of rent control measures. The applicant landlord argued that his rights under Protocol No. 1 were infringed due to the imposition of rent control measures on property he owned. However, the Court saw things differently and made the following main points in their judgement, which are generally beneficial in housing rights terms, particularly

52 Applications 5727/72, 5744/72 and 5857/72 (15 July 1976, unpublished), and 5155/72 (12 July 1976, unpublished). 53 Application 7367/76. 54 European Court of Human Rights, judgment of 24 November 1986, Series A, No. 109. SIM Special 18

regarding the rights of tenants: a) the disputed reductions [in rent] were neither a formal nor de facto expropriation but amounted to a control of the use of the property; b) the legislature has wide discretion with regard to the implementation of social and economic policies, in particular in the field of housing; c) the justifications given by the State for the legislation in question cannot be regarded as manifestly unreasonable. They represent the pursuit of a legitimate aim in the general interest; d) in remedial social legislation and in particular in the field of rent control, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts; and e) the measures adopted to control rents did not fall outside the state's margin of appreciation, and although the rent reductions were striking in their amount they did not constitute a disproportionate burden.55

In the Case of James and others vs the United Kingdom housing rights matters were also raised by the European Court on Human Rights in the context of the right to peaceful enjoyment of one's possessions. The Court held that `modern societies consider housing of the population to be a prime social need, the regulation of which cannot entirely be left to the play of market forces. The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice in the sphere of people's homes, even where such legislation interferes with existing contractual relations between private parties and confers no direct benefit on the State or the community at large. In principle, therefore, the aim pursued by the leasehold reform legislation is a legitimate one.'56 As such, legislation aimed at securing greater social justice in the sphere of people's homes was justified, even when it `interferes with existing contractual relations between private parties and confers no direct benefit on the State or the community at large.'57 The inter-State complaint Case of Cyprus vs Turkey of 1976 addressed mass evictions as a violation of the right to `respect for the home'. The

55 European Court of Human Rights, judgment of 19 December 1989, Mellacher and other, Series A, No. 169. 56 European Court for Human Rights, judgment of 21 February 1986, James and Others vs United Kingdom, Series A, No. 98. 57 Ibidem, paragraph 47. Leckie / The Justiciability of Housing Rights

opinion of the Commission held that:

`The evictions of Greek Cypriots from houses, including their own homes, which are imputable to Turkey under the Convention, amount to an interference with rights guaranteed under Article 8(1) of the Convention, namely the right of these persons to respect for their home, and/or their right to respect for private life (...) The Commission concludes (...) that (...) Turkey has committed acts not in conformity with the right to respect for the home guaranteed in Article 8 of the Convention.58

This quick overview of some of the opinions and judgments of both the Commission and Court contain both positive and negative dimensions regarding legal protection as to the core contents of housing rights. On the one hand, opinions have been put forth declaring large-scale evictions a violation of the Convention, rent control measures have been viewed as a `legitimate social aim', that housing is `a prime housing need' and that public authorities are under an obligation to ensure that they do not impose intolerable living conditions on a person or family. On the other hand, the Convention has been interpreted to contain no State duty to provide accommodation and to justify the removal of persons from the homes they owned in terms of the pursuit of a legitimate social aim and in the interests of protection the rights and freedoms of others. Still, much remains to be desired concerning the legal and actual status of housing rights in Europe.59 Current cases pending the consideration by the Court concerning the destruction of villages and subsequent forced eviction, against the Government of Turkey for alleged violations of the European Convention in southeastern Turkey (Kurdistan) will generate additional housing rights jurisprudence, and hopefully halt the massive violation of housing rights and other human rights in Kurdistan.

ƒ European Social Charter The European Social Charter (1961) – like the European Convention on Human Rights – does not contain an explicit right to adequate housing,

58 European Commission Cases 6780/74 and 6950/75, Cyprus vs Turkey, 4 EHRR, Report of the Commission and opinion (10 July 1976), pp. 72-73. 59 See, for instance, a 1987 resolution of the European Parliament, adopted by a vote of 177-0. Resolution C 190/39, 16 June 1987. SIM Special 18

though it does enshrine legal standards directly relevant to this right.60 For instance, Article 19 of this text ensures the rights of migrant workers and their families to treatment not less favourable than nationals in a State party in respect to, inter alia, accommodation. Whereas under the context of the right of the family to social and legal protection (Article 16), the Contracting States undertake to promote, inter alia, the provision of family housing. The 4th Protocol to the Charter addresses the rights of the elderly to the provision of housing suited to their needs. A fair amount of case-law has been generated by the European Committee of Independent Experts responsible for monitoring the Charter on these housing clauses. An analysis of the existing case-law on Article 19 reveals the following jurisprudential considerations: i) it is not enough for a government to prove that no discrimination exists in law alone; it is obliged to prove in addition that immigrant workers did not in practice suffer any disadvantage in the allocation of low-cost housing despite the de jure equality they enjoyed; ii) the Committee has noted the existence of `concession laws' which frequently appear to distinguish between local residents, other citizens of this state and aliens. Such distinctions, insofar as they affect aliens, would certainly be contrary to the Charter; iii) in one case, it was decided that a State party in which alien workers may only be granted public housing if they have lived there for seven years fails to meet the obligations under Article 19(4); and iv) if a State's legislation discriminates even indirectly between citizens and foreigners in respect to the purchase of real estate, it would be contrary to Article 19, to the extent that this discrimination affected access by foreigners to housing; v) the Committee needs to know, at a minimum, whether in fixing priorities in the allocation of housing for persons on waiting lists

60 Generally, on the European Social Charter, see: David Harris, The European Social Charter, New York, 1984; and L. Betten and A. Jaspers (eds.), 25 Years European Social Charter, Deventer, 1988. Leckie / The Justiciability of Housing Rights

account is taken for foreign workers of the members of their family left behind in their country of origin whom they would like to bring to the country in question; and vi) even where there are social problems due to overcrowding, the number of migrant workers is small and the situation in respect of housing therefore trivial; a residential qualification of five years for the provision of publicly financed accommodation in respect of any person who was not born within the State fails to satisfy the requirements of Article 19.61

In yet other instances, the Committee of Independent Experts has made pronouncements concerning equality of treatment for migrant workers in the housing sphere, many of which are classified in terms of violations of these rights. In one case, the Committee concluded that a State was still failing to satisfy its obligations, and while welcoming the efforts made by the State's authorities to facilitate access to public authority housing for foreigners, it noted that no change had so far been made in the law.62 The Committee of Independent Experts has also expressed that as regards to subsidized housing, where conditions required to obtain such housing (birth or length of residence) are only applicable to nationals of States bound by the Charter, such a situation would not be in conformity with Article 19(4).63 More recently, the Committee has asserted that residence requirements in one country, while formally providing for equality of treatment, create an inequality of treatment in substance and are therefore not in keeping with the provisions of the Charter.64 Considering the situation in the same country, the Committee felt that the question of allocation of resources (e.g. low-cost housing) should rest on a criterion of the need of the applicant, so that the protection of the family is accorded the priority envisaged by the Charter, despite the limited availability of low-cost

61 Paul Sieghart, The International Law of Human Rights, Clarendon Press, 1983, pp. 186-187. 62 European Committee of Experts, Case Law of the European Social Charter, Supp. 1, Conclusions III (Article 19(4)), p. 93. 63 Ibidem, Conclusions VIII, p. 210. 64 Ibidem, Supp. 3 (1992), Conclusions XI-1, pp. 159-60 (Norway). SIM Special 18

housing resources.65 Finally, in yet another instance, a State party was deemed not to be complying with the Charter's provisions since `public promotion housing' was allocated only to the nationals of the country concerned.66 Article 16 has been applied in a series of conclusions by the Committee during the past decade, several of which are of particular use in understanding the implications of housing rights. In one case, this body found that in order to form an opinion as to whether a State had complied with Article 16, it would need to be furnished with statistics on the economic and social position of families in a given State and to have an indication as to whether its housing policy was adequate for the needs of families.67 Indicating further, the information it required to fully assess State compliance with Article 16, the Committee required a State to supply it with information on: i) the housing situation, especially the percentage of dwellings classified as insanitary and the criteria on which this classification was based; ii) the inhabitant/ housing ratio; and iii) the proportion of family income taken up by rent, according to various socio- professional categories of tenants.68 While in another case, in view of the Committee's concern about the situation of large families and of homeless families, it stressed the need to consider family welfare in terms of the right to receive adequate housing and essential services (such as heating and electricity) these being necessary for the welfare and stability of families.69

ƒ The Covenant on Economic, Social and Cultural Rights In its monitoring function, the Committee has developed its own housing rights jurisprudence through, inter alia, the issuance of concluding observations following the consideration of States reports. During its eleven sessions thus far, the Committee has had the opportunity of examining many of the legal issues relating to the housing rights situations in a large and diverse number of countries. The Committee has devoted particular attention and derision to the practice of forced evictions carried out by States parties to the Covenant, and has regularly

65 Idem. 66 Ibidem, Conclusions XI-2, p. 147 (Spain). 67 Ibidem, Supp. 1 (Article 16), Conclusions III, p. 78. 68 Ibidem, Supp. 1, Conclusions III, p. 79. 69 Ibidem, Supp. 3, Conclusions XII-1, General Introduction, p. 30. Leckie / The Justiciability of Housing Rights

condemned evictions as a violation of the Covenant.70 Additionally, in its most recent four sessions (7th-10th sessions, 1992-1994),71 the Committee has specifically addressed housing rights issues in States parties relating to: (a) the rights of tenants;72 (b) the universal provision of security of tenure;73 (c) homelessness;74 (d) the need to construct low-income housing;75 (e) the lack of domestic remedies for housing rights violations;76 (f) land regularization;77 (g) the prevalence of inadequate living conditions and service availability;78 (h) the need to establish a national housing commission;79 (i) protection from discrimination within the housing sphere;80 and (j) expropriation for social housing purposes.81

ƒ Convention on the Elimination of All Forms of Racial Discrimination The Case of L.K. vs the Netherlands involved, inter alia, a complaint alleging non-compliance by the State party of Article 5(e)(iii), non-discrimination in terms of the right to adequate housing. Among other grounds, the applicant alleged his right to housing in an environment free of racial discrimination, as enshrined in Article 5(e)(iii), had been violated due to hostile reactions by neighbours to a prospective tenant in an Utrecht neighbourhood, who was of non-Dutch origin. While the Committee eventually decided in the favour of the applicant, they did not directly

70 See the comments of the Committee on the reports of the Dominican Republic (paragraph 249, E/C.12/1990/8), Panama (paragraph 135, E.C.12/1991/4), Kenya (paragraph 82, E/C.12/1993/19), Nicaragua (paragraphs 209 and 210, E/C.12/1993/19) and Mexico (paragraph 239, E/C.12/1993/19). 71 This paper was written immediately prior to the 11th session of the Committee (21 November – 9 December 1994) and does not address decisions made during this session. 72 See the discussion of the report of Italy, paragraph 193, E/C.12/1992/2. 73 See the comments by the Committee on the reports of Nicaragua, paragraph 211; Canada, paragraph 116; and Mexico, paragraph 238, E/C.12/1993/19. 74 See the comments of the Committee on the report of Canada, paragraph 108, E/C.12/1993/19. 75 Mexico, paragraph 238; Belgium, paragraph 14, report of the tenth session; Mauritius, paragraph 14, E/C.12/1993/19. 76 Canada, paragraph 113, E/C.12/1993/19 and Belgium, report of the tenth session. 77 Nicaragua, paragraph 207, E/C.12/1993/19. 78 Mexico, paragraph 234, E/C.12/1993/19. 79 Belgium, report of the tenth session. 80 Idem. 81 Idem. SIM Special 18

address the status of Article 5(e)(iii) in their final opinion.82

This overview of housing rights jurisprudence at the international and regional levels yields, however, the following perspectives. Firstly, while some decisions have strongly supported housing rights, a large measure of cases have effectively denied many of the claims inherent in the assertion of these rights. Secondly, the limitations of the judiciary to dictate State policy on housing rights remains severely restricted in most instances.83 Certain decisions may in fact bolster housing rights demands, however these rarely have society-wide impacts. Thirdly, it remains extremely difficult – both in legal and financial terms for claimants of housing rights to utilize the judicial system as a means of accessing their lawful housing rights.84 The need for a more comprehensive legislative approach, fully consistent with international human rights law, seems clearly to be in order. Moreover, it is clear that international legal provisions are virtually never used by judiciaries as a concrete basis for court decisions, let alone the perspectives of the Committee on Economic, Social and Cultural Rights on housing rights. Craven's statement should be taken into account in this regard:

`It is apparent that the Committee's interpretation of the Covenant is not binding upon States and that even if it were, national courts would not necessarily feel themselves constrained to adopt the interpretation of a treaty offered by international tribunals. However, to the extent that the Committee is in a unique and pivotal position as the sole supervisory body, its interpretation may be seen to reflect the common understanding of States parties as to the meaning of the Covenant's provisions. It is entirely appropriate, then, for domestic courts to have reference to the Committee's

82 Comm. No. 4/1991, opinion 16 March 1993, 42nd session. See Aleidus Woltjer, `Discriminatie en Huisvesting', in: NJCM Bulletin, 18-4, 1993, pp. 472-479. 83 Several instances of domestic housing rights jurisprudence are examined in the first progress report of the UN Special Rapporteur on Housing Rights (E/CN.4/ Sub.2/ 1993/15, pp. 31-33). A comprehensive analysis of domestic housing rights case law will be elaborated in a 1995 publication of the Centre on Housing Rights and Evictions entitled `Sources #8: Housing Rights Are Justiciable: An Overview of Housing Rights Case Law'. 84 In India, housing legislation and the legal regulatory framework has been identified as a major area of both potential as well as constraint for popular housing activity. See: The Evaluation of Legal and Regulatory Constraints to Housing Activity in India: A Report on the Completion of Phase I of the Project, TARU & YUVA, New Delhi 1994 (draft). Leckie / The Justiciability of Housing Rights

interpretation of the provisions of the Covenant where possible.'85

4. Housing Rights Violations

Although obvious, it must be re-iterated that the human right to adequate housing is as subject to violation or infringement as any other human right. In 1990 the Committee on Economic, Social and Cultural Rights noted that `the right to housing can be subject to violation. Acts and omissions constituting violations will need to be explored by the Committee, especially in the context of forced evictions.'86 The Committee's General Comment No. 4 stipulates two circumstances amounting to violations of the housing rights provisions of the Covenant, namely:

`Paragraph 11: [A] general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations found in the Covenant. Paragraph 18: [T]he Committee considers that instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.'

In 1990, the Committee denounced the Dominican Republic for violating Article 11(1) of the Covenant because of the prevalence and massive scale of forced evictions sponsored and carried out by the government.87 A similar decision was made by the Committee in reference to the past practices in Panama in 1991 and in other instances.88 Developments elsewhere in the UN undertaken at roughly the same time, have resulted in blanket coverage of the practice of forced evictions as a gross violation of human rights, in particular the right to adequate housing. These same decisions began a dynamic process emphasizing to governments, both the need for immediate measures to be undertaken at all levels aimed at eliminating the practice of forced eviction, as well as: `the importance of the provision of immediate, appropriate and sufficient

85 Supra Craven, p. 390. 86 E/C.12/1990/3, p. 72. 87 E/C.12/1990/8, pp. 55-65, in particular paragraph 249. 88 E/C.12/1991/4, p. 32, paragraph 135. SIM Special 18

compensation and/or alternative accommodation, consistent with the wishes and needs of persons and communities forcibly or arbitrarily evicted, following mutually satisfactory negotiations with the affected person(s) or group(s).'89 These unambiguous legal stances on forced evictions by a range of UN bodies provides an indication of the emerging legal consensus concerning one of the most obvious violations of housing rights. Similarly, the Special Rapporteur on Housing Rights has devoted substantial attention to the issue of acts and omissions by States amounting to violations of the right to housing in his three reports as well. Acts of racial or other forms of discrimination in the housing sphere, demolition or destruction of housing as a form of punishment, failing to reform or repeal legislation inconsistent with the contents of housing rights and a range of additional actions have been declared in principle, to constitute further violations of the right to adequate housing.90 In addition to outlining earlier proclamations as to what would constitute housing rights violations, the Special Rapporteur also outlined a lengthy series of both acts and omissions which could provoke concern regarding possible infringements of the right to adequate housing. These merit a full reiteration. Acts which could be considered to constitute housing rights violations include, but are not limited to:

`1. Carrying out, sponsoring, tolerating or supporting the practice of forced evictions; 2. Demolishing or destroying homes or dwellings as a punitive measure; 3. Actively denying basic services such as water, heating or electricity, to sectors of society, despite a proven ability to provide these; 4. Acts of racial or other forms of discrimination in the housing sphere; 5. Adoption of legislation or policies clearly inconsistent with housing rights obligations, particularly when these result in homelessness, greater levels of inadequate housing, the inability of persons to pay for housing and so forth; 6. Repealing legislation consistent with, and in support of, housing rights, unless obviously outdated or replaced with equally or more consistent laws;

89 See, inter alia, UN Commission on Human Rights resolution 1993/77 on `Forced evictions', E/CN.4/1993/65/122; and UN Sub-Commission on Prevention of Discrimination and Protection of Minorities resolutions 1991/12 and 1993/41 on `Forced evictions', both adopted by consensus, respectively on 28 August 1991 and 27 August 1993. 90 See, for instance, Working Paper and First Progress Report of the UN Special Rapporteur on Promoting the Realization of the Right to Adequate Housing, E/CN.4/Sub.2/1992/15 and E/CN.4/Sub.2/1993/15. Leckie / The Justiciability of Housing Rights

7. Unreasonable reductions in public expenditures on housing and other related areas, in the absence of adequate compensatory measures; 8. Overtly prioritizing the housing interests of high-income groups when significant portions of society live without their housing rights having been achieved; 9. Constructing or allowing the building of housing upon unsafe or polluted sites threatening the lives and health of future occupants; and 10. Harassing, intimidating or preventing non-governmental and community-based organizations and grassroots movements and groups concerned with housing rights from operating freely.'91

Conversely, according to the Special Rapporteur on Housing Rights, a series of failures to act (omissions) could also constitute violations of housing rights obligations. These include:

`1. Failing to take `appropriate steps' as required under the Covenant on Economic, Social and Cultural Rights; 2. Failing to reform or repeal legislation inconsistent with the Covenant; 3. Failing to enforce legislation inherent in the fulfilment and recognition of housing rights; 4. Failing to intervene in the housing market, especially concerning rent levels, rent control, rent subsidies, issues of security of tenure and prevention of undue speculation; 5. Failing to incorporate and implement accepted international minimum standards of achievement concerning housing rights; 6. Failing to provide infrastructure, basic services (water, electricity, drainage, sewage, etc.); 7. Failing to prohibit or prevent individual or civil actions amounting to housing rights violations by any person capable of committing such acts; 8. Failing to utilize all available resources for the fulfilment of this right; 9. Failing to integrate and full consider the implications for housing rights when developing macro-economic policies impacting upon the housing or related social spheres; and 10. Failing to submit reports as required under Articles 16 and 17 of the Covenant on Economic, Social and Cultural Rights, as well as under other treaties.'92

These assertions as to possible acts and omissions resulting in housing rights violations have been increasingly applied in international legal fora. Several States parties to the Covenant on Economic, Social and Cultural Rights have been explicitly declared by the Committee on Economic, Social and Cultural Rights to have violated Article 11(1) of the Covenant due to the tolerance and support of the practice of large-scale forced evictions. Additionally, other States have received specific

91 E/CN.4/Sub.2/1993/15, paragraph 144. 92 Ibidem, paragraph 145. SIM Special 18

recommendations for legislative and policy changes due to the existence of circumstances amounting to infringements of housing rights within certain countries. Even bodies not traditionally concerned with human rights matters have addressed housing rights violations. For instance, UN Commission on Human Settlements resolution 14/6 (1993) urges:

`3. [A]ll States to cease any practices which could or do result in infringements of the human right to adequate housing, in particular the practice of forced mass evictions and any form of racial or other discrimination in the housing sphere. 4. [A]ll States to repeal, reform or amend any existing legislation, policies, programmes or projects which in any manner negatively affect the full realization of the right to adequate housing.'

While Fried van Hoof has asserted, quite correctly that:

`[T]he obligation to respect and protect the right to adequate housing, as laid down in Article 11(1) of the [ICESCR], would in my view be violated, if the government's policy, even in the least developed countries, allowed the hovels of poor people to be torn down and replaced by luxury housing which the original inhabitants could not afford and without providing them with access to alternative housing on reasonable terms.'93

Where there is a violation or alleged violation of any human right, for it to be a human right, there must be domestic and international remedies to seek judicial or other forms of redress and vindication, and identifying violations facilitates the task of identifying justiciable aspects housing rights. Without such remedial possibilities, human rights – and socio- economic rights especially – will remain somewhat marooned in the realms of obscurity. Once an Option Protocol is eventually adopted, the Committee on Economic, Social and Cultural Rights will have a large measure of discretion as to the types and contents of any views, opinions or recommendations it may make in response to complaints alleging non-compliance with Article 11(1) provisions. While acting on individual or group complaints claiming that identifiable violations had taken place should be an obvious point of

93 G.J.H. van Hoof, `The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views', in: P. Alston and K. Tomaševski (eds.), The Right to Food, The Hague 1984, p. 107. Leckie / The Justiciability of Housing Rights

departure for the Committee under an Optional Protocol procedure, the submission of complaints concerning, say, overall housing policy within a nation, the non-compatibility of specific pieces of municipal legislation with international housing rights standards and general issues like these must also be subject to (quasi-)judicial scrutiny and requisite condemnation should they be violative of the Covenant.

5. Justiciable Components of Housing Rights

The complexity of the right to adequate housing and the many areas of life the realization or non-realization of this right can affect – both positively and negatively – leads to the position that many core components of this right are, without question, justiciable. Clearly, some aspects of the right are more easily or frequently subjected to judicial scrutiny than others, with many of these distinctions based upon either the procedural realm of housing rights or the substantive realm of housing rights. In order to determine, even in a preliminary sense, the extent to which housing-related rights are capable of consideration by judicial bodies, the process is straightforward. As shown above, housing rights mean more than the provision by the State of an adequate home to all citizens requesting accommodation. Housing law is already substantial field, perhaps more extensive at the municipal level than most of the other rights within the Covenant. This domestic legal situation, read in conjunction with the Covenant provides a solid legal basis upon which to justifiably base complaints of violations of housing rights. Despite major progress regarding the definition of housing rights and obligations, the much-enhanced stature of this norm at both the international and national levels, and its growing prominence generally, it will really only be possible through an Optional Protocol procedure to determine not just which elements of housing rights are deemed sustainable justiciable under international law, but how still sticky housing rights issues will be addressed. Such a procedure will allow the emergence of jurisprudence hopefully answering long-standing queries such as: How absolute an assurance to housing should a person entitled to housing rights have in law or in practice?; How flexible should such access to housing be?; How relative should housing adequacy be defined? and by how relative a standard?; How should housing rights best be incorporated into domestic law, constitutionally, statutorily or not SIM Special 18

at all?; How can a right not to be tendered substandard housing be integrated into legal structures?; Is there a `right' to home ownership?; How extensive is the right not to be evicted from one's home or to otherwise be uprooted?94 To some degree, questions such as these and others can be answered – at least in a preliminary sense – through reference to existing standards and jurisprudence at the international level. Nevertheless, especially at the international level, much remains to be achieved and viewed in the context of the justiciable dimensions of housing rights, there is and will be substantial opportunity to do so. With this in mind, what then are the housing rights components which are justiciable?

(a) Forced Evictions and Demolition: The legality of planned, pending or past forced evictions and demolitions are subject to judicial consideration in nearly all countries. Forced evictions affect millions of persons throughout the world every year, and in the overwhelming majority of cases, evictees are neither provided with compensation nor alternative accommodation or resettlement.95 The direct governmental complicity in many forced evictions and the clear violation of housing rights generated by this practice presumes its justiciability.96 The Committee on Economic, Social and Cultural Rights regularly addresses forced evictions in States parties and has labelled several countries as violators of the Covenant because of their liability in sanctioning or tolerating this clear infringement of housing rights. General Comments No. 2 and No. 4 of the Committee have explicitly

94 See Frank I. Michelman, `The Advent of a Right to Housing: A Current Appraisal', Harvard Civil Rights-Civil Liberties Law Review, 1970, pp. 207-216. 95 See, for instance, Centre on Housing Rights and Evictions, Forced Evictions: Violations of Human Rights #6, COHRE, Utrecht, August 1994. This publication, inter alia, outlines planned evictions in 26 countries, which if carried out in full, will affect over 5.5 million persons. 96 Forced evictions have been declared as `gross violations of human rights, in particular the human right to adequate housing' on numerous occasions by various UN human rights bodies and other human rights institutions. For a comprehensive overview of the essential illegality of forced evictions, see: Centre on Housing Rights and Evictions, Sources #3 Forced Evictions and Human Rights: A Manual for Action, COHRE, Utrecht 1993; Scott Leckie, When Push Comes to Shove: Forced Evictions and International Law, Habitat International Coalition, 1995; and Report of the UN Secretary-General on Forced Evictions (E/CN.4/1994/20). Leckie / The Justiciability of Housing Rights

addressed this practice in terms of violations of the Covenant.97 Complaints under an Optional Protocol concerning past or planned evictions should pose no legal problems and are clearly justiciable.

(b) Security of Tenure: Complaints relating to the issues of tenure security are also justiciable and can be considered under an Optional Protocol. In this respect, paragraph 8 of General Comment No. 4 has addressed security of tenure in the following terms:

`Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.'

Moreover, many UN resolutions have encouraged governments to confer immediately the right to security of tenure to all persons currently lacking this protection, including UN Commission on Human Rights resolution 1993/77 which urges governments to `confer legal security of tenure to all persons currently threatened with forced eviction and to adopt all necessary measures giving full protection against forced evictions, based upon effective participation, consultation and negotiation with affected persons or groups'. No other measures will assist in promoting the enjoyment of the right to housing more constructively than the provision of security of tenure, which is cheap to confer, feasible and just. The conferral of secure tenure is particularly important to slum dwellers, squatters, residents of housing owned or controlled by exploitive landlords, and others threatened by insecure housing situations. With tenure, people feel protected from eviction and secure, and consequently will invest in their own homes, in the process augmenting the enjoyment of housing rights through personal efforts. While there are obvious distinctions between different manifestations of tenure security within different countries, the fundamental importance of secure tenure for the enjoyment of housing rights must be justiciable.

97 Paragraph 6 of General Comment No. 2 and paragraph 18 of General Comment No. 4. SIM Special 18

(c) Non-discrimination and Equality of Access: Housing-related discrimination on the basis of race, gender and other grounds is prohibited under several international Conventions, either explicitly as in the case of Article 5(e)(iii) of the CERD and Article 14(2) of the CEDAW, or implicitly in most texts recognizing equality rights. Clearly, complaints submitted on the grounds of discrimination or inequitable rights of access for certain social groups are ipso facto justiciable. Complaints on grounds of racial discrimination and housing are clear.98 Additionally, discrimination against migrant workers, refugees and asylum seekers, the elderly, disabled persons, persons with chronic health problems including HIV-positive individuals, women, children, persons/ families of low-incomes, indigenous peoples, homeless persons99 and other social groups should be received by the Committee under any Optional Protocol procedure. Petitions alleging discrimination within both the public and private sphere should be considered as applicable by the Committee.

(d) Housing Affordability: The Committee has stated, in the context of housing affordability that:

`Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised, Steps should be taken by States parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. States parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of affordability tenants should be protected form unreasonable rent levels or rent increases by appropriate means, In societies where natural materials constitute the chief sources of building materials for housing, steps should be taken by States parties to ensure the availability of such materials';

98 See paragraphs 35-40 of the Limburg Principles. 99 Homeless persons often face severe discrimination exclusively on the grounds of their homelessness. Legislation criminalizing homelessness, preventing homeless persons from voting or denying other rights to homeless, exist in many countries. In some cases, courts have sided on the behalf of homeless persons. In the US, for instance, an enforceable right to education for homeless children under federal law, was identified by the Federal Appeals Court in Washington DC (Lampkin vs District of Columbia, 1 July 1994). Leckie / The Justiciability of Housing Rights

Housing costs, in particular rental levels, are restricted in nearly all countries; inevitably to various degree and in distinct ways. Rent control measures are also standard throughout all regions and regulations on rental increases are commonplace. Many countries provide direct housing subsidies to lower-income groups. At the same, particularly in rural areas, housing remains non-commodified and is constructed primarily of natural materials. For such dwellers the principle of housing affordability takes on a different content. It is through the absence of legal and affordable housing resources, which has forced many hundreds of millions of dwellers into the technically illegal squatter settlements which often dominate Third World cities.

(e) Landlord-Tenant Relations: Landlord-tenant law exists in nearly all countries and is routinely subject to judicial scrutiny; concerning both the private and public spheres. In many countries, landlords are extremely exploitive of renters and are generally given the benefit of the doubt vis- à-vis the rights of lesser-earning tenants. Moreover, it is not uncommon for landlords to possess the right to evict tenants without any `just cause', without any warning and without any compensation or rehousing. Rent levels can be raised to any level in a range of nations, seriously undermining the housing rights of tenants, while in yet other countries landlords physically harass tenants through disconnecting services, refusing to repair or maintain dwellings and so forth. Surplus housing demand relative to supply can force tenants to enter into exploitive situations they would never have done were affordable and decent housing available.

(f) Access to Services: Although clearly a governmental responsibility – even according to the heavily market-oriented World Bank – the provision of basic services such as water, drainage, electricity, garbage removal, lighting, roads and so forth, literally billions of persons still do not have access to basic sanitation facilities or close proximity sources of potable water. In many Third World cities, the poor are forced to pay 5- 10 times the price per litre of water (from water vendors) as richer neighbourhoods receiving piped water. Even though the provision of services is nearly always the responsibility of local government, central government rarely provides the necessary finances for the attainment of SIM Special 18

such duties. There are clear patterns in some countries of a selective provision of basic services to certain areas and not to others. This would also appear not to be in accordance with the norms of the Covenant.

(g) Property Rights: Protocol No. 1 of the ECHR and several other human rights texts enshrine the right to property or peaceful enjoyment of possessions. While this is a complicated and still controversial human right, this right must entail added protection from eviction, protection against arbitrary expropriation of property and housing and the protection of personal possessions. Also of relevance are issues relating to land use, land and settlement regularization and land ceiling regulations.

(h) The Substantive Right to Accommodation: Though often viewed with severe scepticism, the substantive provision of accommodation to homeless persons is not as uncommon or radical as often thought. The UK Homeless Persons Act, the Madhya Pradesh Act and other instances are cases in point. Moreover, even in certain US cities such as New York, the public authorities are under an obligation to at least provide temporary shelter to homeless persons and families. In many developing countries the direct supplying of land to landless families amounts to the same type of substantive provision.

(i) The Right to Counsel and Legal Aid: Many housing groups and other community-based movements struggling against pending evictions and towards other housing rights objectives find it immensely difficult, and in some cases impossible, to access affordable lawyers to represent them and assist in adjudicating their cases. In New York City, for instance, nearly 90 percent of all tenants facing eviction appear without counsel at eviction proceedings, whereas in 98 percent of landlords do have legal counsel. By providing counsel to low-income tenants in eviction proceedings, USD 67 million in public funds could be saved. New York's Housing Court presides over summary eviction proceedings that result in an average of 25,000 evictions each year. A estimated 44 percent of the families entering homeless shelters in New York City have become homeless as a result of eviction. The provision of counsel to all low- income households facing evictions could prevent 4,873 families from Leckie / The Justiciability of Housing Rights

seeking emergency shelter each year.100 One of the objectives of the International Housing Rights Legal Activists Alliance (to be established by the Centre on Housing Rights and Evictions (COHRE) in 1995) will be the provision of `legal aid' and legal assistance and advocacy to communities and groups in the developing world unable to access lawyers and thus judicial remedies.

(j) The Right to Participation: The right to participation forms a much more important aspect of housing rights than often thought. This is true in a global sense, but particularly in the developing world where the vast majority of housing is still built by the dweller himself or herself. The right to participate in micro- and macro- decision-making processes relating to housing, planning and other relevant areas though fundamental, is rarely afforded to citizens to the necessary degree. Moreover, this right also entails the right of tenants organizations, housing rights movements and community-based organizations to operate freely, without harassment by government or other obstacles.

(k) The Right to Habitable Housing: Certain jurisprudential considerations under the European Convention on Human Rights and the European Social Charter. On this right, General Comment No. 4 states that:

`Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well. The Committee encourages States parties to comprehensively apply the “Health Principles of Housing” prepared by the World Health Organization (WHO) which view housing as the environmental factor most frequently associated with disease conditions in epidemiological analyses; i.e. inadequate and deficient housing and living conditions are invariably associated with higher mortality and morbidity rates.'

ƒ Housing Rights of Special Groups Vulnerable and disadvantaged groups, those with traditional difficulties

100 See: Housing Court, Evictions and Homelessness: The Costs and Benefits of Establishing a Right to Counsel, published by Community Training and Resource Center and City-Wide Task Force on Housing Court, Inc., New York 1993. SIM Special 18

in accessing affordable housing and those with special housing needs should be availed the right to submit petitions under any Optional Protocol procedure.

ƒ Public Expenditure on Housing Within the framework of the `maximum of available resources' clause of Article 2(1), complaints should be considered by the Committee concerning levels and allocational priorities of public expenditure towards the enjoyment of housing rights. The Committee could seek to determine, whether public spending on, say, homelessness was adequate vis-à-vis societal needs in this regard.101

ƒ Housing Policy Tests Housing policies in many countries are either partially or perhaps even totally incompatible with the obligations arising from Article 11(1). In this respect, complaints could be envisaged based upon the `progressive realization' component of Article 2(1) and measured against the domestic housing policy of certain States parties.

ƒ Legislative Compatibility Tests Like housing policy, national housing legislation may have a highly negative bearing upon the satisfaction of housing rights of significant sectors of society. In addition to the undertakings of the Committee through the reporting process by States parties, general, class-action oriented complaints alleging the incompatibility of specific pieces of legislation or governmental or presidential decrees could be examined under a complaint procedure.

6. Housing Rights Within an Optional Protocol

The above analysis has sought to disclose that under an Optional Protocol petitions procedure there are few legal or other grounds upon which to restrict such a mechanism to only certain aspects of the right to

101 The discrepancy between governmental allocation and popular views is often glaring. Public spending towards specifically alleviating homelessness in the US in FY 1994 were USD 1.4 billion, while the FY 1995 request of the Administration is 2.2 billion. The National Coalition of the Homeless recommends, however, that the total should be increased for FY 1995 to nearly 3.6 billion. Leckie / The Justiciability of Housing Rights

adequate housing. If there are any inherent limitations as far as the justiciability of housing rights is concerned, this should be decided by the Committee itself, only after it has had ample time to examine housing rights complaints in sufficient detail. As with all socio-economic human rights, housing rights standards create both negative and positive obligations on behalf of States parties to the Covenant. These have often been portrayed in terms of obligations of conduct (positive) and obligations of result (negative). Another manner by which housing rights obligations might be usefully delineated could be into three distinctive realms: (a) the procedural realm; (b) the substantive realm; and (c) the policy realm. Each of these realms should be open for complaints and subsequent analysis under an Optional Protocol procedure. While many of the elements of housing rights can already be dealt with under the existing procedures of the Committee, resulting in changes in national law and policy, the importance of providing victims of housing rights violations with international remedies cannot be overstated. For such a procedure to bear fruit, however, there must be comprehensive awareness by the Committee of what works in the housing realm to promote housing rights in order to offer the most constructive recommendations in its eventual views, opinions or perhaps even judgments. Any decisions made by the Committee must seek to recognize the numerous distinctions both within and between nations as far as housing realities are concerned and would be well-advised to examine and dispel the numerous myths associated with housing which continue to prevail in many quarters.102 Moreover, in view of what has been outlined above, the Committee might wish to reconsider and amend the sentiments contained in its General Comment No. 3 (1990), that certain provisions of the Covenant (Articles 3, 7(a)(i), 8, 10(3), 13(2)(a), 13(3), and 15(3)) were capable of immediate application, and concluded that `any suggestion that the provisions indicated are inherently non-self-executing would seem hard to sustain.' It is curious, however, that no reference was included in this list to the Article 11(1) provisions on housing rights, for many elements of housing rights are also clearly capable of immediate application, as indicated above.

102 See the Second Progress Report of the UN Special Rapporteur on Housing Rights for an analysis of some of these housing myths (E/CN.4/Sub.2/1994/20). SIM Special 18

When the Committee begins to develop its rules of procedure concerning an Optional Protocol it will need, as well, to at least basically elaborate the types of `decisions' it will allow itself to make and the corresponding sanctions – if any – it wishes to adopt. In addition to the more obvious directions the findings of the Committee could take in housing rights cases submitted to it, the Committee could take guidance from a decision made in the mid-1980s by the Permanent Peoples' Tribunal which `sentenced' IMF officials responsible for imposing harsh structural adjustment policies on developing countries, to live for one month in a Third World squatter settlement. Conversely, the Committee could consider applying the same type of decision issued by a New York judge in 1993 when 4 city officials were ordered to spend a night in the same offices where hundreds of homeless families were forced to sleep. The domestic impact of the Committee on Economic, Social and Cultural Rights as far as housing rights is concerned has been very substantial, particularly with regard to preventing forced evictions from taking place. The existence of an Optional Protocol will only assist the Committee in strengthening its resolve to ensure State compliance with housing rights norms and therefore, facilitate a larger measure of enjoyment of these rights for the one billion fellow beings who at this very moment lack the basic necessity of life – a place to live in peace and dignity.