LITIGATING HOUSING RIGHTS

By Dr. Aoife Nolan1

More than 50 national constitutions contain various formulations of housing rights and governmental obligations in the sphere of housing. 2 In addition to being provided for in numerous international human rights instruments,3 housing rights are expressly enshrined

1 LL.B, PhD (EUI). Legal Officer with the Economic, Social and Cultural Rights Litigation Programme at the Centre on Housing Rights & Evictions, Geneva. Email: [email protected]. Please do not quote paper without author’s permission. 2 S. Leckie, ‘The Human Right to Adequate Housing’ in in A. Eide, C. Krause and A. Rosas (eds), Economic, Social and Cultural Rights – A Textbook, Second Revised Edn (2001) 149 at 152. ‘In this paper, the terms ‘right to housing’, ‘housing rights’ and ‘right to adequate housing’ will be treated as synonymous. Leckie points out that a correct understanding of housing rights must essentially recognise not only the physical manifestations of a structure called ‘the home’, but equally embrace the procedural, remedial security and non-material aspects of housing rights. (S. Leckie, ‘Where It Matters Most: Making International Housing Rights Meaningful at the National Level’ in Leckie (ed), National Perspectives on Housing Rights (2003) 3 at 11). This expansive, multi-dimensional understanding of housing rights will be employed here. 3 For a non-exhaustive list of international human rights law treaty provisions related to housing rights, see, e.g., Article 11(1) of the International Covenant on Economic, Social and Cultural Rights Dec. 16, 1966, 993 UNTS 3; Article 27(3) Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3; Article 5(e)(iii) International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21 1965, Articles 2 and 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979; Articles 17 and 26 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 331; Article 43(1)(d) of the International Convention on the Protection of the Rights of All Migrant Workers and Their Families. For more on the right to housing under international human rights treaties, see M. Langford & A. Nolan, Litigating Economic, Social & Cultural Rights: Legal Practitioners’ Dossier Vol.s 1 & 2 (Geneva: Centre on Housing Rights and Evictions, 2004) (copy on file with author).

1 in, or have been implied from, provisions of the basic texts of the African,4 European,5 Inter-American6 regional human rights systems.

Housing rights have been litigated and adjudicated extensively at the national, regional and international levels. The right to housing, as well as aspects of that right, has been brought before, and been dealt with, by courts and other bodies in a wide variety of ways. The following are two of the primary ways in which this has occurred. First, the right to housing has been litigated directly before decision-making bodies, resulting in their making judgments and orders expressly on the basis of that right. Second, many ‘civil and political’ rights have socio-economic (including housing rights-related) aspects or 4 The African Commission on Human Rights held that that the combined effect of Articles 14 (right to property), 16 (right to health) and 18(1) (right to protection of the family) reads a right to shelter or housing into the African Charter on Human and People’s Rights. (SERAC and CESR v. Nigeria African Commission on Human Rights, Case No. 155/96, Decision made at 30th Ordinary Session, Banjul, The Gambia, from 13th to 27th October 2001 at para. 60). The African Charter on the Rights and Welfare of the Child also contains housing-related rights. For example, Article 20(2) (obliging States Parties, in case of need, to provide material assistance and support programmes particularly with regard to nutrition, health, education, clothing and housing) and Article 18 (Protection of the Family). Article 16 of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in African sets out the right of women to access to adequate housing on basis of equality. 5 Article 8 of the European Convention on Human Rights and Fundamental Freedoms states that, “(1) Everyone has the right to respect for his private and family life, his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Other housing related-rights include, inter alia, Article 3 (Prohibition of torture, inhuman and degrading treatment) and Article 6 (right to a fair public hearing) of the Convention, Article 13 (the right to an effective domestic remedy) and Article 14 (prohibition on discrimination). For more on this, see P. Kenna, ‘Using the ECHR to Advance Human Rights’ (2004) 2(1) Housing & ESC Rights Law Quarterly 5. Article 16 of the European Social Charter provides that, “[w]ith a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate means”. Other housing rights-related articles include, Article 31 of the Revised Social Charter states that, “[w]ith a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: (1) to promote access to housing of an adequate standard; (2) to prevent and reduce homelessness with a view to its gradual elimination; (3) to make the price of housing accessible to those without adequate resources.” 6 Article 34 of the Charter of the Organisation of American States (1948) provides that, “Member States agree that equality of opportunity, the elimination of extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development. To achieve them, they likewise agree to devote their utmost efforts to accomplishing the following basic goals: ... Adequate housing for all sectors of the population”. The American Convention on Human Rights enshrines the right to freedom from arbitrary or abusive interference with the family, private life and the home (Article 11(2), while Articles 21 and 26 of that instrument also have implications for the right to housing. Finally, the Declaration of the Rights and Duties of Man provides that everyone has has “the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources” (Article XI). Although the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) does not contain an explicit housing rights norm, the rights recognised within the Organisation of American States amounts to the implicit existence of housing rights with that system. (S. Leckie, ‘The Right to Housing’).

2 implications. The acknowledged interdependence and interrelationship of both kinds of rights have led to housing rights (and elements thereof) being protected by means of the interpretation and application of provisions relating to civil and political rights such as the right to equality7 or the right to life. 8

This paper focuses on how complaints about housing rights violations by states have been (and can be) litigated before courts and other judicial or quasi-judicial decision-making bodies.9 It considers how courts and other bodies have dealt with such rights when these have been litigated before them. In it, I discuss jurisprudence (in the broad sense of that word) from international, national and regional human rights-monitoring mechanisms as well as case-law from numerous national jurisdictions. I begin by providing an introduction to the right to housing and the way in which its different aspects and the obligations imposed by it have been litigated. This is followed by a discussion of some of the practical issues faced housing rights litigants.

The Right to Housing: An Introduction:

The right to housing imposes both negative and positive obligations. The duties encompassed by the right are often expressed as the obligations to respect, protect and

7 See, e.g., Whittom v. Québec (Comm des droits de la personne) (1997) 29 CHRR D/1 (Que CA), in which the Quebec Court of Appeal considered a rule applied by landlords disqualifying applicants from renting houses who would be paying more than a certain percentage of their income towards rent. The Court held that this constituted discrimination against single mothers and low-income tenants on the ground of ‘social condition’ in violation of s.10 of the Québec Charter of Human Rights and Freedoms which sets out the right to equal recognition and exercise of rights and freedoms. For a discussion of this case and others Canadian examples involving the use of equality rights in the context of accessing housing, see B. Porter, “Homelessness, human rights, litigation and law reform: a view from Canada” (2004) 10(2) AJHR 133. 8 See, e.g., Francis Coralie v. Union Territory of Delhi (AIR 1981, SC 746) in which the Indian Supreme Court stated that the right to life enshrined in Article 21 of the Indian Constitution includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing, and shelter. See also, Shantistar Builders v. Narayan Khimatal Tomtame (1990) 1 SCC 520, in which the Indian Supreme Court stated that the right to life enshrined in Article 21 of the Indian Constitution takes within its sweep the right to a reasonable accommodation to live in. Another example is that of Chameli Singh v. State of Uttar Pradesh (1996) 2 SCC 549 (1996) 2 SCC 549. See also, the Bangladeshi case of ASK [Ain O Salish Jendra] v. Government of Bangladesh (Supreme Court, 1999), in which the Supreme Court of Bangladesh stated that, ‘while such State policies [aimed at ensuring the provision of the basic necessities of life, including shelter] were not judicially enforceable, the right to life implied the right not to be deprived of a livelihood and shelter.’ 9 That is not to suggest that housing rights cannot, or should not, be litigated where those responsible for violating those rights are private or n on-state actors. However, this paper will primarily focus on litigation in which the respondent party is the state or one of its actors. It will not deal with litigation against corporations before national courts or under the OECD Guidelines. Nor will it deal with complaints to the World Bank Inspection Panel.

3 fulfil.10 The obligation to respect is generally negative,11 while the obligations to protect and fulfil are generally positive.

The obligation to respect requires states to refrain from interfering with housing rights.12 Thus, states are prohibited from interfering with the enjoyment of the right to housing of an individual or groups by carrying out forced evictions. In addition, there have been challenges in relation to governmental failures to entrench the various substantive and procedural rights associated with the duty to respect housing rights in law and in practice. The case of Connors v. UK13 involved the eviction of gypsies from a halting site by a local authority in a situation in which the applicant was accorded no means of challenging allegations made against him as part of the eviction process. The European Court of Human Rights found that, “the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a ‘pressing social need’ or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention”.14

Litigation has also been brought where proceedings have been taken by the state seeking to evict people who would be left homeless if evicted. In these cases, the courts have had to consider the obligation on the state to respect the right to housing in deciding whether to order an eviction, and if so ordering, when and under what circumstances the eviction may take place.15 In the South African case of Port Elizabeth Municipality v. Various Occupiers, 16 the Municipality brought an eviction application against people who were occupying shacks erected on privately owned land within the Municipality’s jurisdiction. The decision primarily focussed on how the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) should be interpreted in order to promote the purposes and values underlying section 26(3) of the South African

10 This notion of the various obligations endangered by rights was first pinpointed by Henry Shue in Basic Rights: Subsistence, Affluence and US Foreign Policy (1980). Shue suggested that, "every basic right, and most other moral rights as well, could be analysed using a very simple tripartite typology of interdependent duties of avoidance, protection and aid”. (H. Shue, ‘The Interdependence of Duties’ in Alston and Tomasevski (eds), The Right to Food (1984). Later, variations on Shue’s typology of duties were offered by several commentators. Members of the CESCR subsequently adopted and employed the tripartite typology of duties described in the text below as their interpretive framework for analysing the rights contained in the ICESCR. 11 I describe the duty to respect as ‘generally’ (as opposed to ‘completely’) negative because state efforts to meet this obligation will often involve positive action on the part of the state or its agents such as amendment, preparation or passing of legislation, reform of institutional practices, the introduction of sanctions to secure compliance with forbearance and abstinence from action, and budgeting of necessary funds. 12 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, published in (1998) 20 Human Rights Quarterly 691 at para. 6. 13 (2005) 40 EHRR 9. 14 Ibid at para. 95. 15 G. Budlender ‘Justiciability of the Right to Housing – the South African Experience’ in Leckie (ed), National Perspectives on Housing Rights (2003) 207 at 209. 16 2004 (12) BCLR 1268 (CC).

4 Constitution. 17 Section 26(3) provides that “[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”. PIE states that, before granting an eviction order at the instance of an organ of state, the courts must be of the opinion “that it is just and equitable to do so”.18 In determining whether this is so, the court must take account of all relevant circumstances, including (a) the manner in which occupation was effected,19 (b) its duration,20 and (c) the availability of suitable alternative accommodation or land.21 With regard to (a), the Constitutional Court stated that “persons occupying land with at least a plausible belief that they have permission to be there can be looked at with far greater sympathy than those who deliberately invade land with a view to disrupting the organised housing programme and placing themselves at the front of the queue.”22 When considering (b), the Court stated that a court will be far more cautious in evicting well-settled families with strong local ties, than persons who have recently moved on to land and erected their shelters there. With regard to (c), the Court observed that section 26(3) expressly acknowledges that “eviction of people living in informal settlements may take place, even if it results in loss of a home.” 23 However, it went on to affirm that generally “a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme.” 24

The obligation to protect requires states to take measures that prevent third parties from interfering with the enjoyment of such rights. One example of this duty is the obligation on states to prohibit and prevent discrimination in the private housing sector. Another is the duty of governments to prevent and provide legal remedies for the violation of any individual’s right to housing by any other individual or non-state actor, including landlords, property developers, and land owners. With regard to the duty to protect, government have been challenged for colluding with or failing to restrain non-state actors in violating housing rights. Such a situation arose to be considered by the Committee Against Torture in Hijirizi et al v. Yugoslavia.25 The communication alleged that a non- Roma mob set fire to a Roma settlement, destroying it completely. Police amongst the mob made no effort to halt the violence even thought they were forewarned by the victims. Investigations into the incident were discontinued due to “lack of evidence” and Yugoslavia failed to provide redress and compensation to the victims.26 A majority of the Committee found, inter alia, that the failure of the state to provide protection violated Article 16(1) of the Convention Against Torture, which obliges States Parties to prevent

17 S. Leibenberg, ‘Towards a Right to Alternative Accommodation? South Africa’s Constitutional Jurisprudence on Evictions’ (2005) 2(3) Housing & ESC Rights Law Quarterly 1. 18 Section 6(1) PIE. 19 Section 6(3)(a) PIE. 20 Section 6(3)(b) PIE. 21 Section 6(3)(c) PIE. 22 Port Elizabeth judgment, para 26. 23 Ibid para. 21. 24 Ibid, paras. 28 and 29. 25 Communication No.161/2000, CAT/C/29/161/2000, (2002). 26 Paraphrased from A. Nolan, M. Langford & Ors. ‘Leading Cases on Economic, Social and Cultural Rights: Summaries – Working Paper No.2’ (Geneva; COHRE, 2005).

5 acts of cruel, inhuman or degrading treatment that do not amount to torture and are committed by or at the instigation of or with the consent or acquiescence of a person acting in an official capacity.

Another instance of litigation of the negative duties imposed by the housing rights is the South African case of Jaftha & Anor. v. Van Rooyen & Anor.27 Here, appellants alleged that legislation which allowed for debtors’ homes to be attached and sold to satisfy petty debts, even where this might result in homelessness, violated the negative aspect of the constitutional right to have access to adequate housing (section 26). Amongst other things, the plaintiffs alleged that the negative obligation under section 26 “is not to prevent or impair existing access to adequate housing”.28 In this case the appellants already had their homes and the state had a duty to protect their right of access to adequate housing. The Constitutional Court held that any measure which permits a person to be deprived of existing access to adequate housing limits the rights protected in section 26(1) and has to be justified under the general limitation clause in the Constitution (section 36). The Court held the legislation to be unconstitutional to the extent that it allowed execution against the homes of indigent debtors where they would lose their security of tenure and, further, to the extent that it allowed for such executions where no countervailing considerations in favour of the creditor justified the sales in execution. The Court ordered the provision of judicial oversight over sales in execution against the immovable property.

In a context of increasing globalization, the duty to protect is growing in importance. Government duties in the context of privatisation to ensure access to and affordability of housing are likely to be the subject of increasing litigation and judicial attention.

Finally, the obligation to fulfil requires states to take steps to facilitate individuals and communities in enjoying the right and, when an individual or group is unable to realise the right themselves, to provide that specific right. 29 With regard to the duty to fulfil the right to housing, there have been numerous cases challenging government inaction,30 the

27 Constitutional Court of South Africa, Case No. CCT74/03, 8 October 2004. 28 Ibid at para. 31. 29 Paraphrased from CESCR General Comment 13 on the Right to Education at para. 47. For more on what these different obligations entail, see the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, published in (1998) 20 Human Rights Quarterly 691. 30 See, e.g., the U.S. case of Callahan v. Carey. This case was a class action on behalf of homeless men in the Bowery area of Manhattan seeking a temporary mandatory injunction directing state and city officials to furnish lodging and meals to the derelicts seeking such. The applicants claimed that that such shelters were mandated by the US Constitutions and the New York Constitution. The New York Supreme Court held that the “Bowery derelicts” were entitled to board and lodging and that it was incumbent on those public officials responsible for caring for the needy to find such lodgings. The Court, inter alia, ordered the State to submit a plan to provide at least 750 beds (and board for 750 men). The plaintiffs and defendants ultimately entered into a consent decree requiring New York City to furnish sufficient beds to meet the needs of every man applying for shelter provided (a) they were in need of temporary shelter due to physical, mental or social dysfunction, or, (b) they met the need standard to qualify for the New York home relief program .

6 failure by state’s to implement a pre-existing policy, retrogressive measures31 and the obligation of the state to meet minimum obligations imposed by housing-related rights. 32

While the tripartite typology is a useful analytical tool when considering the different obligations that are imposed by the right to housing, one must bear in mind that there is often considerable overlap between the different obligations. Furthermore, in many situations giving rise to the litigation of housing rights, violations of more than one of the three duties will be involved. For instance, European Roma Rights Centre v. Greece,33 concerned a collective complaint brought to the European Committee of Social Rights alleging that Roma in Greece were denied an effective right to housing in violation of Article 16 34 or Article 16 in light of the Preamble35 of the European Social Charter. The Committee focused on three aspects of the claims made in the complaint: (i) the insufficient number of permanent dwellings of an acceptable quality to meet the needs of settled Roma; (ii) the insufficient number of stopping places for Roma who choose to follow an itinerant lifestyle or who are forced to do so; and (iii) the systematic eviction of Roma from sites or dwellings considered to be unlawfully occupied by them. 36 In this instance, the collective complaint had asserted violations of both negative and positive obligations imposed by the right housing. The Committee found that all three elements described in the complaint constituted violations of Article 16.37

31 See, Communication No. 31/2003: Slovakia CERD/C/66/D/31/2003, which was recently dealt with by the Committee on the Elimination of Racial Discrimination. The case concerned a resolution adopted by the Dobšiná municipal council, under pressure from right-wing anti-Roma groups, to cancel a previous resolution in which the council had approved a plan to construct low-cost social housing for Roma inhabitants living in very poor conditions. The petitioners contended, inter alia, that the State party had failed to safeguard their right to adequate housing, thereby violating Article 5(e)(iii) of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD). The Committee ruled that, taken together, the council resolutions in question – which consisted of an important practical and policy step towards realisation of the right to adequate housing, followed by its revocation and replacement with a weaker measure – amounted to an impairment of the recognition, or exercise on an equal basis, of the human right to housing. The second resolution reversing the initially positive step towards the realization of the right to housing of the Roma can be regarded as constituting a retrogressive measure, even though it was not directly referred to as such by the Committee. 32 See, e.g., Moldovan & Ors. v. Romania (No.2), 12 July 2005 (Appl.nos. 41138/98 & 63420/01) where the applicants argued, and the European Court of Human Rights agreed, that the living conditions experienced by the applicants (in combination with the racism they were subjected to during national proceedings), attained a minimum level of severity such as to fall within the scope of Article 3 of the European Convention and to constitute ‘degrading treatment’ within the meaning of Article 3. For more on this case, see C. Cahn, ‘Roma Rights, Discrimination and ESC Rights’ (2005) 11(3) Human Rights Tribune: www.hri.ca (accessed 8 December 2005). 33 Complaint No. 15/2003, 8 Dec. 2004, http://www.coe.int/T/E/Human_Rights/Esc/ (accessed 8 December 2005). 34 Art. 16 provides for the right of the family to social, legal and economic protection, including the undertaking of States Parties to promote the economic, legal and social protection of family life by means including the provision of family housing. 35 The Preamble states that the enjoyment of social rights should be secured without discrimination on the grounds of, inter alia, race. 36 A. Nolan, ‘A Recent European Housing Rights Case’ (2005) 2(3) Housing & ESC Rights Law Quarterly 7. 37 For more, see ibid and Cahn, supra n32.

7 Another example of the different obligations that may be litigated in relation to housing rights is the South African case of Grootboom v. Oostenberg Municipality and Ors.38 Here, 900 persons had been evicted from private land onto which they had moved due to the “intolerable conditions under which they were living while waiting in the queue for their turn to be allocated low-cost housing”39 and they settled on a sports field. The community approached the Cape of Good Hope High Court seeking an order directing the state to, inter alia, provide adequate and sufficient basic temporary shelter and/or housing for the applicants and their children, pending their obtaining permanent accommodation. The action centred on the right of everyone to have access to adequate housing and the right of children to shelter, which are enshrined in sections 2640 and 2841 of the South African Constitution respectively. The judgments of the High Court and the Constitutional Court in this case has already been the subject of extensive academic analysis and I will not dwell on their findings at any great length.42 Nor will I discuss the court’s interpretation of section 28. Rather, my aim here is to point out that the Court held that the right to have access to adequate housing encompasses both positive and negative duties. In addition to the positive obligations imposed on the state in relation to the right to adequate housing by section 26(2) (i.e. to take reasonable measures within its available resources to achieve the progressive realisation of that right), the Court found that section 26(1) contained an implied negative obligation “placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing”.43

The United Nations Committee on Economic, Social and Cultural rights has highlighted and elaborated on particular aspects of the right to adequate housing. These include: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.44 These elements of the right to adequate housing serve as useful benchmarks when evaluating government conformity with its housing rights obligations and litigation involving

38 See, 2000 (3) BCLR 277 (C) (hereinafter ‘the Grootboom case’ or ‘Grootboom’). 39 Per Yacoob J, Constitutional Court Grootboom at para. 3. 40 Section 26 of the South African Constitution states: (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. 41 Section 28(1)(c) provides that every child has the right to shelter. 42 For more discussion of the Grootboom case, see S. Liebenberg, ‘Taking stock: The jurisprudence on children's socio-economic rights and its implications for government policy’ (2004) 5:4 ESR Review; S. Liebenberg, ‘The Right to Social Assistance: The Implications of Grootboom for Policy Reform in South Africa’ (2001) 17 SAJHR 232; S. Liebenberg, & K. Pillay, ‘Case Summary: Grootboom v. Oostenberg Municipality and Others’ (2000) 2(3) ESR Review 10; P., De Vos, ‘Grootboom, the Right of Access to Housing and Substantive Equality as Contextual Fairness’ (2001) 17 SAJHR 258; P. De Vos, ‘Pious Wishes or Directly Enforceable Human Rights?: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 SAJHR 67; P. Alston & C. Scott, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 SAJHR 206; J. Sloth-Nielsen, ‘The Child’s Right to Social Services, the Rights to Social Security and Primary Prevention of Child Abuse: Some Conclusions in the Aftermath of Grootboom’ (2001) 17 SAJHR 210. 43 Grootboom at para. 34. 44 See Committee on Economic, Social and Cultural Rights, General Comment 4 on the Right to Adequate Housing (Article 11(1)) for a more detailed account of these elements of the right to adequate housing.

8 housing rights will often concern one of more of them. The following are examples of ways in which two of these different aspects – security of tenure and cultural adequacy – have been litigated. Other instances of litigation described in this paper illustrate how the other elements of the right to adequate housing have been brought before courts and other decision-making bodies.

The matter of Comunidad Mayagna (Sumo) Awas Tingni v. Nicaragua45 required the Inter-American Court of Human Rights to deal with the issue of security tenure. In this case, the complainants requested a ruling from the Court requiring that Nicaragua compensate the Awas Tingni Indians for the encroachment on their land caused by the government’s approval of destructive logging concessions on indigenous communal lands, without consultation with or agreement from the affected communities. It was alleged that Nicaragua had failed to carry out its legal duty to demarcate and legally secure indigenous lands. The Court ordered the state, inter alia, to adopt the measures necessary to create an effective mechanism for delimitation, demarcation and titling of the property of indigenous communities within 15 months.46

One Australian instance of litigation concerning the cultural adequacy of housing, is Balaiya v Northern Territory Government,47 in which the Anti-Discrimination Commission declared a complaint brought by a Senior Indigenous man under sections 22 and 24 of the Anti-Discrimination Act (NT) 1996 to be admissible. The complainant alleged that an offer of public housing by the Provincial Government (consisting of a one-bedroom unit) amounted (a) to unreasonable indirect discrimination on the grounds of his race in the provision of accommodation, and (b) a failure to accommodate his special needs in the provision of accommodation on the grounds of his race, in particular by preventing him from engaging in cultural practices essential to his race as an Indigenous person.48

Litigating Housing Rights – Some Practical Issues:

Those hoping to bring litigation involving housing rights are generally faced with a number of practical questions, some of which I will outline below. This is by no means intended to be an exhaustive list but, rather, is intended to give a sense of the issues that arise in the context of litigating such rights.

Choosing a forum

At a domestic level the choice of forum is generally dictated by the structure of the legal system of a particular jurisdiction. The instrument being relied on as a basis of the litigants' claim also plays a role. For instance, in the Canadian context, where a case alleges the violation of a provision of the Ontario Human Rights Code (provincial human rights legislation), a complaint must be

45 (Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001)) 46 Facts adapted from Nolan et al, supra n26. 47 Northern Territory Anti-Discrimination Commission, ADC File No. C2002 1202-01. Decided in May 2004. 48 The parties subsequently entered into a confidential settlement of the proceedings.

9 submitted to the Ontario Human Rights Commission and can only be adjudicated at first instance by the Ontario Human Rights Tribunal. An alleged violation of the Canadian Charter, on the other hand, can be presented in provincial or federal court and only a court can declare legislation invalid under the Charter.49

One option that national litigants may be faced with is the choice between using the courts or national human rights institutions such as human rights commissions. Admittedly, human rights commissions or tribunals may offer a more accessible and friendly environment for housing rights claims than courts considering constitutional challenges. However, governments may have the power to over-rule the decisions of such tribunals or to change legislation in response to decisions against them.50

Choosing a forum at an international level can be a fraught decision. The lack of an Option Protocol to the ICESCR and Convention on the Rights of the Child often forces advocates to rely on fora that are responsible for supervising treaties containing primarily civil and political rights rather than socio-economic rights such as housing. Admissibility requirements will clearly influence choice of forum. While some fora have very stringent admissibility requirements, those of other are less so. In addition, there may be situations in which advocates will have to make the choice between approaching a forum which is empowered to deal directly with violations of housing rights and one that has a better track-record in terms of its decision being given effect to: litigants may have to balance the benefits of getting a useful decision ‘on paper’ against the problem that the compliance record of states with the decisions of certain complaints bodies is low. For instance, the African Commission has been quite progressive in its approach to the right to housing and has issued recommendations in relation to it on at least one occasion. In SERAC and CESR v. Nigeria,51 the communication alleged that the military government of Nigeria was guilty of, inter alia, violations of the right to health, the right to dispose of wealth and natural resources, the right to a clean environment and family rights under the African Charter due to its condoning and facilitating the operations of oil corporations in Ogoniland. The Commission found violations of, inter alia, the right to health (Article 16), the right to a clean environment (Article 24) and the rights to food and housing implicit in the Charter. The Commission issued a recommendation on the decision, requesting the Nigerian government, inter alia, to ensure adequate compensation to victims of the human rights violations, including relief and resettlement assistance. However, despite the progressive nature of this decision, the lack of any effective mechanism for enforcing the Commission’s recommendations has contributed to the fact

49 Most administrative tribunals in Canada are now considered competent to adjudicate a Charter claim within their jurisdiction, ie. primarily a charter claim related to the enabling legislation of the tribunal. However, their decisions are not binding on other tribunals or courts, and their remedies are somewhat restricted. See, Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur [2003] 2 S.C.R. 504, 2003 SCC 54. (The author gratefully acknowledges Bruce Porter’s help with this section). 50 M. Langford, Litigating Economic, Social and Cultural Rights: Achievements, Challenges, Strategies (Geneva: COHRE, 2003) at 22. 51 See, supra n4.

10 that, four years later, the Commission’s decision has had next to no concrete impact on the condition of those on whose behalf the complaint was brought.52

Standing

Issues of standing will play a significant role in relation to choice of forum. A European example might be the choice between employing a mechanism that accepts applications from individuals (for instance, the European Court of Human Rights) or using the collective complaints system under the European Social Charter, under which only specified organisations can bring complaints, rather than individuals.53 Where no such ‘empowered’ organisation is prepared to bring a complaint, an individual or group seeking vindication of their housing rights may have to look to another procedure. Standing will also have a role to play in relation to housing rights litigation at the national level. While some jurisdictions such as Argentina have mechanisms such as the constitutional ‘amparo action’ (writ of protective injunction) which permits a broad range of litigants to bring actions in relation to real or threatened violations of constitutional rights,54 other legal systems require that the person(s) bringing the case (or on whose behalf the case is being brought) is/are directly affected by the conduct (or inaction) complained about.

Evidence

In bringing litigation involving housing rights (particularly in the context of state obligations to realise housing rights), the provision of convincing evidence by litigants can serve to greatly strengthen a case. In housing rights cases, relevant evidence may include that of a statistical, economic, environmental, scientific or technical nature. Where litigants can provide data on matters such as the impact of government action (or inaction) on housing rights, information on the financial and other resources available to government, or evidence on how particular policies affect specific groups, this will reinforce their arguments and may serve to counter the discomfort displayed by courts in many jurisdictions when asked to deal with cases involving the positive obligations imposed by housing rights.

Case Selection

52 For recent information on the lack of implementation of the Commission’s findings in the SERAC case, see Amnesty International, ‘Ten Years On: Injustice and Violence Haunt the Oil Delta’ (2005) at . Available at: www.amnesty.org (accessed 6 December 2005). 53 See Articles 1 and 2, Additional Protocol to the European Social Charter Providing for a System of Collective Complaints 1995, (ETS No. 158) entered into force 1 July 1998. 54 Article 43(1) of the Constitution of Argentina provides that “Any person shall file a prompt and summary proceeding regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule.” Article 43(2) states that the action may be could be invoked by individuals, ombudsmen or certain associations in more general situations involving discrimination against groups or about rights affecting the environment.

11 Case selection is extremely important. A poorly chosen case may result in a negative precedent that might take years to reverse. Thus, the short-term choice of case may have long-term implications for the litigation of housing rights in a particular jurisdiction or before a particular forum. A study carried out by COHRE focussing on economic, social and cultural rights litigation, discovered that:

“ Three categories of case selection tend to be successful. First is litigation that starts from claims resembling a defence of civil and political rights … for example, forced evictions or discrimination. These actions tend to make the judiciary or the public more comfortable with ESC rights. Second are cases involving large, egregious violations or clear failures of governments to implement their own programmes. Third are modest claims that leave open the possibility for future development of jurisprudence.

Naturally, these observations will not be applicable to every (or even, perhaps, many) instances of litigation involving housing rights. However, based as they are on the observations of advocates with great experience in litigating housing and other socio- economic rights, they are worth bearing in mind for those intending to bring housing rights litigation.

With regard to choice of litigant, it is generally preferable to choose a group, or else to join a public interest litigant along with an individual claimant where this is possible in light of, amongst other things, the possibility of a collective action and standing rules. Where there is only one individual claimant, there is the risk of a matter being declared moot when the demands of that individual are met.55

Formulating Arguments

The legal arguments that can be, and have been, used in litigating housing rights largely depend on the decision-making body before which the litigation is brought and the way in which, and to what extent, housing rights are enshrined in the law applicable by that body.

International law has often been used before national courts and tribunals in order to support housing rights claims – both in so-called monist56 and dualist57 systems. In the United Kingdom, jurisprudence of the European Court of Human Rights has been used to support housing rights claims brought under the UK Human Rights Act 1998.58 International law and jurisprudence (both that originating from the United Nations and from regional organizations of states) have been used to bolster applications to regional

55 The same will be true where the needs of a group of claimants are met. 56 See, e.g., Argentina and France. 57 See, e.g., India, Canada and South Africa. 58 See, e.g., R. v. Secretary of State for the Home Department (Appellant) ex p. Adam (FC), R. v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent), R. v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent) (Conjoined Appeals) [2005] UKHL 66

12 human rights complaints bodies and have often been expressly cited by these bodies in reaching their decision on housing rights.59

Comparative jurisprudence can be employed to demonstrate to adjudicating bodies the approaches adopted to housing rights in other jurisdictions or regions. Presenting information on how housing-rights related issues have been dealt with elsewhere can help assuage judicial fears about the implications that court decisions involving housing rights may have for the separation of powers or budgets, or the potential impact of the orders requested in a particular case.60

Remedies

Remedies sought by litigants will be largely dictated by the situation which forms the basis of the litigation. Remedies should be relatively specific to the issues central to the case. Possible remedies for housing rights are numerous – they include damages or compensation,61 reparation in kind, restitution, declaratory orders,62 mandatory orders, ‘reading in’ of additional protections in a legislative scheme where a group has been unlawfully excluded63 and supervisory jurisdiction, through which a Court may retain jurisdiction over a matter in order to provide the legislature time to remedy a violation (e.g. by enacting legislation).

The remedy sought and granted is crucial to effectiveness of housing rights litigation. In the Grootboom case, the Court granted, inter alia, a declaratory order stating that state was constitutionally obliged to devise and implement within its available resources a comprehensive and co-ordinated program progressively to realise the right of access to adequate housing.64 The Court stated the extent to which the housing plan fell short of the constitutional requirement of reasonableness, and “provided some vague pointers as to what would be necessary in order to remedy the defects.”65 Pillay points out that although the order declared what was required by a constitutionally ‘reasonable’ programme, the declaratory nature of the order meant that it did not compel the state to take steps to ensure that its programme complies with the Constitutional requirements.66

59 See, e.g., the SERAC case (discussed above) in which the African Commission quoted at length from General Comments 4 and 7 of the Committee and Economic, Social and Cultural Rights when outlining the obligations imposed by the implied right to housing or shelter under the African Charter. For an example of one regional body referring to the jurisprudence of another in a housing rights case, see, European Roma Rights Centre v. Greece (discussed above) in which the Court stated that, “[t]he implementation of Article 16 as regards nomadic groups including itinerant Roma, implies that adequate stopping places be provided, in this respect Article 16 contains similar obligations to Article 8 of the European Convention of Human Rights.” (Para. 25). 60 Langford, supra n50 at 24. 61 This has been very common in housing rights cases decided by the European Court of Human Rights. 62 See, e.g., the Grootboom case discussed below. 63 See, e.g., the Jaftha case mentioned above. In this case ‘read in’ provisions to the Act requiring judicial oversight of executions against debtors’ immovable property, taking into consideration “all relevant circumstances”. 64 The Court also granted a interlocutory settlement order. 65 M. Pieterse, ‘Coming to Terms With Judicial Enforcement of Socio-Economic Rights’ (2004) 20 SAJHR 383 at 414. 66 K. PIllay, ‘Implementing Grootboom’ (2002) 3(1) ESR Review:

13 Furthermore, unlike the order granted by the High Court, the Constitutional Court’s order did not contain any time frames within which the state had to act.67 The Court also refrained from exercising a supervisory role, stating in its judgment that the South African Human Rights Commission would monitor and, if necessary, report in terms of these powers on the efforts made by the state to comply with its section 26 obligations in accordance with this judgment.68 There was some confusion in relation to the exact nature of the reporting duties of the Commission. Ultimately, however, the Human Rights Commission tended to focus more on monitoring the implementation of the first order which dealt with the situation of the Grootboom community. In the report which it filed with the Constitutional Court over a year after the handing down of the judgment, the Commission failed to provide information on what steps were taken to change the national housing programme to bring it in line with Grootboom and whether nationally and at provincial level there was compliance with the obligation to put in place and implement accelerated land release programmes.69 In addition to these issues, the lack of specificity in the order with regard to the allocation of responsibilities was blamed (possibly unfairly) for discord and uncertainty between the three spheres of government with regard to their obligations under the judgment.70 While the decision had a significant impact on South African constitutional jurisprudence on housing rights, 71 the implementation of the Court’s order was partial and delayed – both in terms of the development of a general housing program to progressively realise the right of access to adequate housing and in relation to the particular situation of the community who brought the litigation.

The nature of the remedy sought (and granted) will often take into account the attitude of the government during the course of the litigation or its previous record of compliance with court orders on related issues. Where there is a risk that governments will not give effect to a declaratory or other form of order, it may be desirable to seek a remedy involving an element of supervision. In the Rudolph case,72 the High Court judge found, on the evidence before him, that the City of Cape Town had displayed and continued to display, an unacceptable disregard for the order of the Constitutional Court in Grootboom and did not consider that that a declaration, standing on its own, would suffice.73 Therefore, he granted a structural interdict requiring the City of Cape Town to report back to the court on a set date with details on what steps it had, and would, take to comply with the order.

http://www.communitylawcentre.org.za/ser/esr2002/2002july_grootboom.php (accessed 8 December 2005) 67 Ibid. 68 Grootboom at para. 97. 69 Pillay, supra n65. 70 K. Pillay, ‘Implementation of Grootboom: Implications for the Enforcement of Socio-economic Rights’ (2002) 6 Law, Democracy and Development 255. 71 For greater detail on the limited implementation of the orders made in Grootboom, see ibid. 72 City of Cape Town v. Rudolph & Ors. 2003 (11) BCLR 1236 (C). (Hereinafter the ‘Rudolph case’ or ‘Rudolph’). 73 Nourse LJ stated that, “There has already been such a declaration, made by the Constitutional Court [in Grootboom]. It has not induced Applicant to comply with its constitutional obligations. Something more is therefore necessary”.

14 Finally, it is important that litigants do not regard their job ‘as done’ once a court or decision-making body has dealt with it and, where applicable, made an order. It is possible (and, indeed, advisable) to involve claimants and civil society in the follow-up and subsequent monitoring of state implementation of the decision of a court or other decision-making body. Similarly, the effectiveness of litigation of the right to housing will undoubtedly be strengthened where the litigation forms part of a broader social movement or campaign. The efficacy of housing rights litigation will be increased where there is a constituency or civil society movement prepared to take action, initially, by bringing an action before the courts and, subsequently, by ensuring that the order is given effect to by the state. It has been stated repeatedly by lawyers involved in the Grootboom case that one of the primary reasons for the delayed and partial implementation of the Constitutional Court’s order was the lack of social mobilisation around the case. 74 Such a movement could have worked to keep the case (and the state’s obligations under the Court’s order) in the public eye and on the political agenda.

Outcomes of litigating housing rights:

Successful litigation of the right to housing generally results in a heightened level of enjoyment, enforcement or realisation of that right. This may occur through, amongst other things, changes in either the law or administrative/social policy, the way in which a particular law or policy is applied, or an increase in state provision (financial or otherwise) for housing rights.

Litigation may also have indirect effects. For instance, where a decision is a ground- breaking legal precedent but is poorly implemented, it may serve as a useful foundation for subsequent cases which are more successful in terms of implementation.75

Litigating housing rights may result in a heightened public awareness and consideration of housing rights-related issues. This can serve to exert pressure on the elected branches of government to implement the court’s decision in a timely and effective way and the decision may serve as a basis for future political lobbying. Another potential indirect effect is that the establishment of a precedent might have the effect of pressurising politicians to examine other laws or policies which relate to housing rights, resulting in the amendment or improvement of measures which might be open to a similar challenge

74 (Interview with Geoff Budlender, Legal Resources Centre, in Cape Town (5 March 2003)). See also Interview with S. Liebenberg cited in supra n50 at 101. 75 Langford, supra n50 at 19. An example of this is the Rudolph case. In this case, the litigants obtained a structural interdict from the High Court arising out of the failure of the City of Cape Town to comply with the previous Grootboom judgment. In contrast to Grootboom, in this case, the state was approaching compliance after 18 months. Admittedly, it is likely that the fact that the Council are approaching compliance with its constitutional obligations in the Rudolph case is the nature of the order granted. A lawyer involved with the case has stated that, “it’s quite clear from the sequence of events that the fact that they are even approaching compliance is caused by the fact that they had to come back and tell the Court something because the actions get taken at the last moment.” (Interview with Geoff Budlender, Legal Resources Centre, in Cape Town, (21 Dec. 2005)). However, if the Grootboom precedent did not exist it seems highly unlikely that the Court would have granted such an order, bearing in mind the reluctance displayed by the South African courts generally towards granting structural interdicts.

15 in the future. Finally, litigation involving housing rights can serve to highlight shortcomings in development strategies and programmes.76

Of course, decisions in which the courts uphold housing rights may also have negative indirect effects in terms of the enforcement of those rights. These could include the government being spurred on to enact a change in the law or to call a constitutional referendum so as to reverse or frustrate the court’s ruling. Alternatively, a decision could give rise to a backlash from politicians or more conservative societal factions. Finally, there may be incidences in which the courts themselves become less willing to adopt a positive approach towards the enforcement of housing rights in the face of, for example, a series of cases from a particular group or focussing on a particular housing rights-related issue. 77

Even a ‘right to housing’ case which is lost may have beneficial results. Such decisions may generate increased societal consciousness of housing rights issues. This might lead to the legitimation of housing rights, as well as mobilising and concretising public and civil society support for it. (Of course, this can also often result from a successful case).78 Alternatively, where a housing rights case is initially successful but loses on appeal, the negative publicity generated by the earlier ruling, or discussion of the subsequent one, may serve to put pressure on the government either to desist from actively violating housing rights (e.g. by carrying out a particular forced eviction) or to take action to realise such rights, regardless of the final conclusion of the courts. Indeed, this may also occur where a case loses at first instance. Negative publicity surrounding litigation may also serve to motivate non-state actors such as multi-nationals to take steps to amend their policies and practices in order to avoid being sued.79

Conclusion:

In nearly all jurisdictions, litigation involving housing rights is on the increase. My primary aim with this paper has been to demonstrate how housing rights have been (and can be) litigated before courts and other judicial or quasi-judicial decision-making bodies. I have also sought to highlight the practical issues that housing rights litigants may face and suggest ways in which these might be dealt with. Housing rights play a central role in relation to guaranteeing human dignity and security and effective housing rights

76 For example, forced eviction litigation in Bangladesh has led to comprehensive plans for resettlement that have been developed by communities, architects and international agencies. Langford, supra n50 at 40-46. For more on this, see Centre on Housing Rights and Evictions & Asian Coalition for Housing Rights, We Didn’t Stand a Chance: Forced Evictions in Bangladesh (Geneva: COHRE, 2001) at 20 and 31. 77 In speaking about cases taken by himself and colleagues on behalf of Roma and Travelling People, Luke Clements Co-Director of the Traveller Law Research Unit at Cardiff Law School, Cardiff, Wales, has observed that: “we were initially quite successful. But then the judges got ‘sympathy fatigue’: they felt they had made their contribution and that Gypsies were being too demanding. We started losing major cases.” (Interview with Luke Clements cited in Langford, supra n50 at 130). 78 For instance, according to the person responsible for taking the Indian case of Olga Tellis, one of the effects of the case was that it “spawned a lot of interest in fighting for housing as a fundamental right; there are now many advocacy groups concerned with housing.” (Interview with Olga Tellis, cited in ibid at 34). 79 Ibid at 19.

16 litigation can contribute significantly towards the goal of assuring human rights for everyone.

17