THE JUSTICIABILITY OF HOUSING RIGHTS

Introduction: Right to a Remedy

The right to adequate housing, including the right to be protected from forced eviction, has increasingly been the subject of judicial and quasi-judicial review at the international, regional and national levels. While some commentators and governments claimed for some time that housing rights were not justiciable, as long ago as 1948, the Universal Declaration of Human Rights recognised that there was a right to a remedy for violations of all human rights. Article 8 says,

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Therefore, access to justice should be viewed as an integral part of the right to housing. Canadian housing rights advocate, Bruce Porter, has captured the importance of procedural and substantive remedies for victims in the following statement:

When someone calls me up because they lost their children because of government’s refusal to provide emergency assistance or adequate shelter, isn’t this a human rights issue? When people see things and feel them and understand them as human rights issues, you claim them as rights.[1]

The provision of both individual and collective remedies is also critical for redressing systematic violations of housing rights.

What is justiciability?

Justiciability normally means two things. First, the ability of courtto apply a certain law to a certain situation. Secondly, the right of a person (or entity) to request that the court make such a ruling. This latter right is often called the right to have standing before the court or other similar body.

In traditional discussions over economic, social and cultural rights, it was often claimed that these rights were not inherently justiciable.[2] This was firstly argued on the basis of judicial capacity. It was claimed that economic, social and cultural rights were too complex (or too vague) for judicial adjudication. The second argument was more principled, as well as fundamental to many constitutions: That courts cannot adjudicate on economic, social and cultural rights since they will be making social policy which is the right of the government, in the form of the executive and parliament. This is the legitimacy argument. Similar objections are made to the decisions of international human rights bodies.

However, theory and practice has shown these two assumptions to be wrong. As this Manual has shown, housing rights do have a precise legal content and courts have demonstrated the capacity to make reasonable rulings on all aspects of housing rights. The South African Constitutional Court stated in 2000:

Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only…. and the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis.[3]

This Court in the subsequent four years went onto to give a variety of judgments on housing rights, including access to emergency housing assistance and protection from forced evictions – see Box 1. The case law also shows that Courts are often very sensitive to the policy-making prerogatives of the Parliament and Executive branches of governments, but that they will impose restrictions on that policy and legislative making power to make sure it complies with economic, social and cultural rights.

What aspects of housing rights are justiciable? Earlier writings and interpretations on housing rights attempted to identify, even if not conclusively, the various justiciable components. COHRE has often stated for example that any judge can rule upon the following aspects of housing rights:

  • Forced Evictions and Demolition
  • Security of Tenure
  • Non-discrimination and Equality of Access
  • Housing Affordability
  • Landlord-Tenant Relations
  • Access to Services
  • Property Rights
  • The Substantive Right to Accommodation
  • The Right to Counsel and Legal Aid
  • The Right to Participation
  • The Right to Habitable Housing

The UN Committee on Economic, Social and Cultural Rights views many component elements of the right to adequate housing as being consistent with the provision of domestic legal remedies. In other words, domestic courts and administrative tribunals already entail procedures that victims or potential victims of housing rights violations can access in order to enforce their rights. For instance, General Comment No. 4 (1991) of the United Nations Committee on Economic, Social and Cultural Rights on the Right to Adequate Housing states:

Depending on the legal system, such areas might include, but are not limited to:

  • Legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions;
  • Legal procedures seeking compensation following an unlawful eviction;
  • 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;
  • Allegations of any form of discrimination in the allocation and availability of access to housing
  • Complaints against landlords concerning unhealthy, unsafe or otherwise inadequate housing conditions. In some legal systems, it would also be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness. (General Comment 4)

However, it has been increasingly recognised that Courts and international mechanisms are able to rule on all aspects of housing rights, although the nature and scope of the judgment will vary according to the circumstances.[4] Professor Matthew Craven sums up what he believes as the core issue, or core obstacle, to justiciability as follows:

Justiciability depends not upon the generality of the norm concerned, but rather on the authority of the body making the decision.[5]

This analysis also takes us back to the original definition of justiciability. If a Court has the power to rule on a right, then it is justiciable.

But it is important to note that the injustice suffered by a claimant should (and often does) play an important role in judicial determinations over the content of a human right. Professor Craven has noted that development of legal concepts of justiciability could sometimes block legitimate human rights claims:

The silencing of the victim may occur, in other words, even in contexts in which the dispute is overtly amenable to judicial determination, but in which the victim is forced to represent their claim in a language that either distorts or denies the substance of their claim.[6]

Box 1: The fight for remedies: The Grootboom Case[7]

In early 1999, the ‘Grootboom community,’ members of a shantytown just outside Cape Town, boarded buses each day for the High Court. Forcibly evicted from nearby private property, they lived on the perimeter of a sports field, with no water, no sanitation, no security of tenure. ‘Our structures were simply bulldozed, and there was no opportunity for us to salvage our personal belongings,’ said one resident.

The High Court was told that the right to housing in the South African Constitution entitled the community to something better. While an interim settlement provided for water, sanitation and some aluminium sheets for shelter, the case wound its way up to the Constitutional Court. This court faulted the Government for failing to include provisions for emergency relief in its housing programme, but stopped short of declaring an immediate right to shelter.

The judgement was hailed a triumph. The carefully reasoned decision recognised that socio-economic rights carried legal duties. Government policy was closely scrutinised, and subsequent cases have built on the Grootboom precedent, some of the cases have been highly effective. But two years later, the mood was more sombre. The leader of the community told a visiting COHRE team, ‘We won the championship, but where’s the trophy?” Land would be made available only in 2005, and the judgement made no provision for further review of housing policy. The Ministry of Housing has now dedicated a portion of its budget to emergency housing assistance.

What are remedies?

National courts can offer many remedies, such as:

  • Declaring a violation and ensuring that a given result is achieved
  • A time-delayed provisional remedy
  • A structured, participatory process to recommend final remedies
  • Ordering the creation of a regulatory regime in which measures are actually specified as being necessary to solve a defined and concrete problem
  • Ordering a government committee of inquiry to report on the situation prior to litigation
  • Preventative damages, including injunctive relief
  • Reparation in kind
  • Supervisory jurisdiction
  • Orders to enact legislation

International courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, are able to impose wide-ranging remedies that are legally binding on the defending State party. However, these courts seem to have limited jurisdiction on housing rights, partly due to self-imposed conservative interpretations of their respective mandates.

International committees and commissions which are empowered to hear individual and collective complaints on economic, social and cultural rights usually make non-binding decisions or recommendations, for example the African Commission on Human and Peoples’ Rights or the Committee on the Elimination of Discrimination Against Women. Nevertheless, these decisions carry authoritative weight.

Do governments have to provide remedies?

Pacta sunt servanda is a legal principle, which means that States are under a legal obligation to perform their treaty obligations in good faith.[8] This means that States must adjust their domestic legal structure to comply with the international standards – for example the International Covenant on Economic, Social and Cultural Rights – to which they have committed themselves.

If a State party to this Covenant does not provide remedies for violations of ESC rights, the UN Committee on Economic, Social and Cultural Rights has said it carries the burden of justifying this position.[9]

Applying the Covenant in national courts

General Comment 9, of the UN Committee on Economic, Social and Cultural Rights offers important guidance on the application of the Covenant in national courts.

  • It argues that remedies do not have to be judicial in nature (e.g., Administrative remedies can be effective) but says that judicial remedies are necessary whenever a Covenant right cannot be made fully effective without some role for the judiciary.
  • There is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions
  • Courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.
  • When Governments are involved in court proceedings, they should promote interpretations of domestic laws, which can give effect to their Covenant obligations… It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms, which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.

It is generally accepted that domestic law should be interpreted as far as possible in a way, which conforms to a State’s international legal obligations. Thus, when a domestic decision-maker is faced with a choice between an interpretation of domestic laws that would place the State in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter.

Box 2: Reviewing Canada’s Performance on Applying the Covenant in Courts[10]

During its periodic review of Canada’s performance under the International Covenant on Economic, Social and Cultural Rights, the monitoring body faulted Canada for the positions taken by provincial governments and courts in various cases. The Committee said that ‘Provincial governments have urged upon their courts in these cases an interpretation of the [Canadian] Charter which would deny any protection of Covenant rights and consequently leave the complainants without the basic necessities of life and without any legal remedy.’ The cases were brought by people living in poverty (usually women with children) against government policies which them and their children adequate food, clothing and housing.

The Committee expressed deep concern at the result that ‘provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights.’ They also said, ‘[the] Committee notes with concern that the courts have taken this position despite the fact that the Supreme Court of Canada has stated, as has the Government of Canada before this Committee, that the Charter can be interpreted so as to protect these rights.’

What are some examples of cases?

There has been case law on virtually every aspect and element of the right to housing set out in General Comment No. 4 and No.7. This section will provide a few examples under the headings of non-discrimination and equality and the obligations to respect, protect and fulfil.

Non-Discrimination and Right to Equality

Many housing rights violations can be traced to conduct that discriminates on prohibited grounds, for example race or sex. Discrimination might be direct, it might be expressly stated in law for example. In ERRC v Greece, the claimants objected to a law that was dedicated to the removal of a minority group, the Roma.[11] Discrimination might be indirect and States are then obliged to eliminate practices and policies with have a discriminatory effect or impact.[12] Indirect discrimination might include for example a requirement that rent for prospective tenants be no more than a third of income as the Kearney case in Box 3 illustrates. Lastly, the duty to take positive steps towards ensuring substantive equality – including the policy of affirmative action – has been made justiciable in a number of cases.[13]

Box 3. Right to Housing Equality Cases

A Canadian human rights commission in Kearney v Bramlea examined whether the use of a 30 per cent rent-to-income ratio to screen prospective tenants discriminatory impact on groups with lower incomes: namely women, single people, racial minorities and those receiving public assistance.[14] The applicants firstly demonstrated that the rule could not be objectively justified: there was no evidence to show that poorer tenants were more likely to default if they paid higher rents, even though such rents were ’unaffordable’. The application of the rule in the tenancy market was found to indirectly discriminate on the basis of sex, marital status, race and income.

In the US case of Mt Laurel, zoning regulations and building codes that prevented the development of low and middle income housing were also held to violate equal protection laws since they had a disparate impact on African Americans, women and children.[15]

Obligation to Respect

The obligation to respect requires governments to refrain from interfering with people’s existing access to housing. One clear violation is forced evictions (see chapter on forced evictions in this Manual). Box 4 sets out one of many cases on this topic.

Box 4. Halting Force Evictions in Bangladesh

ASK (Ain o Salish Kendra) V. Government of Bangladesh (Supreme Court, 1999)[16]

In Dhaka city, a large number of inhabitants of bastis, or informal settlements, were evicted without notice. Their homes were demolished with bulldozers. Two inhabitants and three NGOs lodged a complaint.

The Supreme Court recognised that such inhabitants are often the victims of misfortune and natural calamities, migrants who earlier fled from rural areas where employment opportunities, food or shelter were scarce. Slum dwellers also contributed significantly to the national economy.

Evictions had a severe impact on the right to livelihood. Noting Olga Tellis V. Bombay Municipality Corporation (Supreme Court of India), the court found that the right to livelihood could be derived from constitutional fundamental rights. These included the right to life, respect for dignity and equal protection of the law.

The State must also direct its policy towards ensuring the provision of the basic necessities of life, including shelter (see Constitution, Article.15): ‘Thus, our country is pledge-bound, within its economic capacity and in an attempt for development, to make an effective provision for the right to life, livelihood.’ etc. ‘While such State policies were not judicially enforceable (Article. 15 is only a directive principle), the right to life implied the right not to be deprived of a livelihood and shelter.