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Housing Rights Legislation: Re View of International and National Legal Instruments

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Housing Rights Legislation: Re View of International and National Legal Instruments Page 1 Housing rights legislation: Re view of international and national legal instruments Table of Contents Foreword Acknowledgements Executive summary I. Introduction: From the promotion to the protection of housing rights I.A. The Universal Declaration of Human Rights I.B. International Covenants and Conventions I.C. General Comments and Recommendations adopted by United Nations Treaty-Monitoring Bodies I.D. United Nations resolutions I.E. Other international declarations on housing rights I.F. OHCHR and UN-HABITAT I.G. Other United Nations mechanisms I.H. Conclusion II. Housing rights as progressive legal obligations II.A. Terminology II.B. Are states obliged to build homes for everyone? II.C. Legal obligations of housing rights II.D. Conclusion III. Implementing housing rights through national law: a key focus of the Global Campaign for Secure Tenure III.A. Constitutional recognition III.B. Are states required to adopt national legislation in support of housing rights? III.C. Is national legislation sufficient? IV. National legislation on housing rights IV.A. Constitutional protection IV.B. General policy statements on housing IV.C. Legal security of tenure IV.D. Protection from forced eviction Page 2 IV.E. Protection from forced eviction by non-state actors IV.F. Non-discrimination IV.G. Non-discrimination: gender issues and customary law IV.H. Provision of affordable housing for the poor IV.I. Accessibility IV.J. Restitution IV.K. Habitability IV.L. Homelessness IV.M. Land rights V. Enforcing housing rights V.A. Violations of economic, social and cultural rights V.B. Violations of housing rights V.C. Judicial and other remedies for housing rights violations V.D. International adjudication of housing rights violations V.E. Regional adjudication of housing rights violations o V.E.1. Europe o V.E.2. The Americas V.F. National adjudication of housing rights violations VI. Recommendations for legislative reform: towards a unified and mutually consistent global body of housing rights law VI.A. International VI.B. Regional VI.C. National VI.D. Local List of references and relevant documents List of references International legal instruments (and related interpretations) and declarations/ programmes of actions of United Nations conferences o International Covenants, Conventions and Declarations o Interpretative texts of International Covenants/Conventions o Declarations and programmes of action of United Nations Conferences Page 3 o Regional Covenants, Conventions and Declarations United Nations resolutions and other documents o General Assembly (A/…) o Economic and Social Council (E/…) o Committee on Economic, Social and Cultural Rights (E/C.12/…) o Commission on Human Rights (E/CN.4/…) o Sub-Commission on the Promotion and Protection of Human Rights under the Commission on Human Rights (until 1999 the Sub-Commission on Prevention of Discrimination and Protection of Minorities) (E/CN.4/Sub.2/…) o United Nations Commission on Human Settlements (HS/C) Relevant court decisions Page 4 Housing rights legislation: Re view of international and national legal instruments List of Boxes Box 1. South Africa: Constitution (1996) Box 2. Argentina: Constitution (1994) Box 3. Portugal: Constitution (1976, fourth revision based on Constitutional Law No. 1/97 of 20 September 1997) Box 4. Philippines: The Urban Development and Housing Act of 1992 (Republic Act No. 7279) Box 5. Indonesia:Basic Agrarian Law, Law No. 5 (1960) Box 6. Peru: Peruvian Law for the Promotion of Access to Formal Property. Legislative Decree No. 803 (1997) Box 7. Philippines: The Urban Development and Housing Act of 1992 (Republic Act No. 7279) Box 8. United Kingdom: Protection From Eviction Act (1977, as amended by section 29 of the Housing Act 1988) Box 9. Canada: Human Rights Code (1981). Statutes of Ontario (1981, chap. 53), as amended in 1984 (Chapter 58, s. 39 and 1986, Chapter 64, s. 18) Box 10. Uganda: Land Act of 1998 Box 11. Russian Federation: Constitution of the Russian Federation (1993) Box 12. France: Law 90/449 of 31 May 1990 (Law Aimed at the Right to Housing) Box 13. United States of America: Civil Rights Code (as amended 1990, "Americans with Disabilities Act") Box 14. South Africa: Constitution, Article 25 (1996) Box 15. Kosovo (Federal Republic of Yugoslavia): UNMIK Regulation No. 1999/23 (on the establishment of the Housing and Property Directorate) (15 November 1999) Box 16. Kosovo (Federal Republic of Yugoslavia): UNMIK Regulation No. 1999/23 (on the establishment of the Housing and Property Claims Commission) (15 November 1999) Box 17. New Zealand: The Residential Tenancies Act No. 120 (1986) Box 18. Germany: Constitution of Sachsen-Anhalt (1992) Box 19. Greece: Constitution (1975) Box 20. United Kingdom: Homeless Persons Act (1977, as amended 1996) Box 21. Draft Declaration on the Rights of Indigenous Peoples Box 22. International Labour Organization: Convention No. 169 concerning Indigenous and Tribal Peoples Box 23. Examples of acts constituting housing rights violations Box 24. Examples of omissions constituting housing rights violations Box 25. Concerns raised by the Committee on Economic, Social and Cultural Rights regarding discriminatory practices in Algeria Page 5 Box 26. Elements of the right to adequate housing which are inherently justiciable Box 27. The case of the Dominican Republic (1): Initial reaction by the Committee on Economic, Social and Cultural Rights (December 1990) Box 28. The case of the Dominican Republic (2): Written statement submitted by Habitat International Coalition (3 December 1991) Box 29. The case of the Dominican Republic (3): Report of the Committee on Economic, Social And Cultural Rights (6 December 1991) Box 30. The case of the Dominican Republic (4): The Committee on Economic, Social and Cultural Rights’ concluding observations on the reports submitted by the Dominican Republic pursuant to the 6 December 1991 request Box 31. The case of the Dominican Republic (5): The Committee on Economic, Social and Cultural Rights’ concluding observations to the second periodic report of the Dominican Republic Box 32. [European] Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8) Box 33. [First] Protocol to the [European] Convention for the Protection of Human Rights and Fundamental Freedoms (Article 1) Box 34. American Declaration on the Rights and Duties of Man Box 35. American Convention on Human Rights Box 36. Grootboom: National courts and the application of economic, social and cultural rights Page 6 Box 1. South Africa: Constitution (1996) Article 26. Housing (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. (3) No 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. Article 28. Children (1) Every child has the right - to … shelter…. Page 7 Box 2. Argentina: Constitution (1994) Article 14bis The State shall grant the benefits of social security, which shall be comprehensive and unwaivable. In particular, the law shall establish: ... access to decent housing. Article 75 The Congress shall have the power: 22. To approve or reject treaties entered with other nations and with international organizations, and concordats with the Holy See. Treaties and concordats have a higher standing than laws. The following [international instruments], under the conditions under which they are in force, stand on the same level as the Constitution, [but] do not repeal any article in the First Part of this Constitution, and must be understood as complementary of the rights and guarantees recognized therein: the American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights and its Optional Protocol; the [International] Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishment; the Convention on the Rights of the Child. Source: Translation by Jonathan M. Miller and Fan-Lian Liao, in Flanz, (ed.), 1999a. Page 8 Box 3. Portugal: Constitution (1976, fourth revision based on Constitutional Law No. 1/97 of 20 September 1997) Article 65. Housing and Urban Planning (1) All have the right, both personally and for their family, to a dwelling of adequate size, that meets satisfactory standards of hygiene and comfort and preserves personal and family privacy. (2) In order to ensure the right to housing, it is incumbent on the State to: (a) draw up and implement a housing policy as part of general national planning and to support plans for urban areas that guarantee an adequate network of transport and social facilities; (b) promote, in conjunction with local authorities, the construction of economic and social housing; (c) promote private construction, when in the public interest, and access to privately owned or rented dwellings; and (d) encourage and support the initiatives of local communities for the resolution
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