a right is so much more than a word.
LEARN: As and independent expert she offers guidance on the interpretation of international law offering a deeper understanding of the right to housing. During country missions she observes and reports on the state of human rights on the ground, meeting with governments, civil society and community members.
ACT: A Special Rapporteur encourages dialogues between state and civil society as well as review complaints of the right to housing. When alleged violations of the right to housing occur, Leilani formally communicates with governments and connects with civil society to identify remedies.
Special Rapporteurs are part of the Special Procedures branch of the Human Rights Council which now has 43 thematic and 14 country-specific mandates.
IF YOU THINK YOUR RIGHTS RELATED TO HOUSING HAVE BEEN VIOLATED - REPORT IT TO THE SPECIAL RAPPORTEUR.
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The right to housing is interdependent with other socio-economic human rights such as rights to health, education, and employment. It is also integrally connected to rights to non-discrimination and equality. And, because adequate housing is crucial to the social conditions necessary for human dignity it is intimately connected to the right to life.
Too often violations of the right to housing happen across the globe with impunity. We need not look far to see homelessness, grossly inadequate housing, informal settlements without basic services, people living on streets and pavements, people living with no security of tenure, and people suffering in precarious or temporary shelters. Forced eviction and displacement in the name of development and real estate investment are commonplace. All of these are violations of the right to housing and all can be attributed to the failure of States to effectively implement the right to housing.
With the adoption of the Universal Declaration of Human Rights, the right to adequate housing was universally recognized as a fundamental human right.
•June 2014 – Present Day:
Ms. Leilani Farha is appointed as the third UN Special Rapporteur on the Right to Housing.
Kickstart of a new global initiative.
Tanudjaja v. Attorney General
Known as the “Right to Housing Case”, this case centres on the argument that the Canadian government (and its subnational counterparts) have the responsibility to uphold international human rights obligations with regard to the right to housing. It began in Ontario, Canada when a group of four individuals living in poverty and one institution came together to assert the rights of those living in poverty.
Canada has signed the International Covenant on Economic, Social and Cultural Rights and adopted a Charter of Rights and Freedoms. However, the right to housing is not explicitly stated in any Canadian law, making it difficult for individuals to claim this right.
In this case applicants argued that the Canadian and regional governments failed to adopt effective housing strategies leading to situations of homelessness and inadequate housing in Canada. Further, they argued that this has led to a violation of the applicants’ fundamental human rights, as well as a violation of their right to adequate housing protected under sections 7 and 15 of the Canadian Charter of Rights and Freedoms - sections which focus on equality and the right to life.
The case was dismissed at the provincial court level at the request of the government. The applicants then turned to the provincial Court of Appeal to overturn the decision and argued successfully for eight intervener groups to participate in the appeal. These groups represented a variety of perspectives on poverty, including racialized communities, women, and persons with disabilities. However, it was dismissed.
Finally, the applicants appealed to the Supreme Court of Canada (the highest level of domestic court), which also refused to hear the case. This marked the end of domestic remedies available for the case.
The Special Rapporteur was actively involved in this case from its inception and often spoke out against the decisions by the court and the government, stating that: “Without the courts it is not clear where homeless people in Canada can go to have their rights protected. Federal and provincial governments have refused to legislate in this area, tribunals haven’t taken up the issue, and the Courts have again reaffirmed their indifference towards the human rights of people living in poverty in this country.”
Buenos Aires (Argentina)
Rodrigo Bueno is an informal settlement in the city of Buenos Aires which emerged toward the end of the 1980s on lands highly coveted by the real-estate sector. Adjacent to Rodrigo Bueno is Puerto Madero, a neighborhood of luxury high rises with the most expensive prices per square meter in the city. Around 400 families live in Rodrigo Bueno under very precarious conditions, without access to any basic urban services.
The neighborhood´s precarious situation led to the death of Gastón Arispe Huamán, a 13-year-old boy, who in March 2014 fell into a cesspit, one of many in the area due to the lack of sewers. According to the deceased child´s family, the city´s medical emergencies service took 40 minutes to arrive on the scene. A few months later, delegates from the district, along with the Office of Public Defense of the City of Buenos Aires, CELS, and other organizations, presented the neighborhood’s issue of access to habitat before the Inter-American Commission on Human Rights (IACHR).
The neighborhood is bringing a lawsuit against the city government, demanding urban infrastructure development. Litigation began as a response by local residents to a decree passed by the government of the City of Buenos Aires (GCBA) offering a subsidy to anyone who agreed to leave the neighborhood. Rodrigo Bueno residents filed a lawsuit, with the representation of the Office of Public Defense of the City of Buenos Aires, an action challenging the government decree, requesting urban development of the area. In 2011, the decree was declared void and the government was ordered to refrain from engaging in any policies to evict residents or vacate property, as well as take all necessary measures to integrate the Rodrigo Bueno neighborhood from a social and urban perspective.
GCBA appealed the court´s ruling and, in September 2014, the city court of appeals in administrative matters overturned the ruling. Based on a new appeal prepared by the Office of Public Defense of the City of Buenos Aires, the issue came before the Superior Court of Justice for the city, the highest local body.
In April 2016, within the context of this dispute, CELS, ACIJ and other organizations filed a request for public hearing along with several amicus curiae for the court´s consideration containing arguments that reflect the city government´s obligation to take all necessary measures for the neighborhood´s socio-urban integration. However, after almost a year, in February 2016, the Court rejected all filings and denied the request for a public hearing with neighborhood organizations and residents.
The Buenos Aires municipal government recently committed itself to presenting a plan to the city’s highest court to urbanize Rodrigo Bueno and will create the plan with representatives of city government, the Public Defender´s Office and neighborhood delegates.
Buenos Aires (Argentina)
Barrio Garrote is 40-year-old informal settlement, where 800 families are currently living in a situation of severe urban housing deficit: without access to any basic urban services such as sewers, drinking water, gas, garbage collection, among others. The neighborhood is located in the municipality of Tigre, in the northern suburbs of Greater Buenos Aires, where a large number of lavish gated developments have been built over the past three decades.
In the case of Garrote, construction is underway on a gated neighborhood called "Venice" on an adjacent lot, which threatens to increase the risk of flooding in the area. In order to address this situation, Garrote residents, with legal representation from CELS, initiated a lawsuit against the construction company, the province of Buenos Aires, and the municipality of Tigre demanding that the technical studies for its construction be made available as part of the judicial process.
The lawsuit filed also demands the neighborhood’s social and urban integration through the implementation of the law of fair access to habitat of the province of Buenos Aires. This standard is a new precedent in Argentine urban normative tradition, given the principles that it recognizes, as well as for the instruments that it puts at the disposal of municipal governments to ensure the right of access to a decent habitat. In this regard, the law recognizes, the principles of the "right to the city" and "democratic management of the city" and a series of instruments to intervene in the real estate market. In this regard, in addition to reversing human rights violations involving the poor living conditions in which Garrote´s residents live, litigation for the urbanization of the neighborhood represents a strategy to generate legal precedents in support of the effective implementation of this law.
In regard to the risk of flooding in the neighborhood, in March 2016, the Court of Appeals confirmed that it is the real-estate developer´s responsibility to provide the technical studies for construction works. In terms of urbanization, it is expected that in the coming weeks the judge, who recently visited the area to verify the local resident´s living conditions, will call a hearing to discuss the position of the different parties involved in the case.
A judge ordered that the local government provide basic urban services to residents in Garrote. More specifically, he ordered periodic trash collection, improvement of sanitation infrastructure, and the provision of drinking water. The judge sustained his decision by stating that current conditions in the neighborhood constitute a risk to Garrote resident´s right to health, and life.
European Roma Rights Centre v. Portugal
The right to housing for Roma communities in Portugal was tested under the Revised European Social Charter. Citing allegations of violations of various rights that are protected by both the International Covenant of Economic, Social and Cultural Rights and the European Social Charter, the European Roma Rights Centre sought remedies through the European Committee of Social Rights.
In a unanimous decision, the Committee agreed that violations had occurred with respect to the right to housing, family, poverty and exclusion and discrimination. The concluding statement references both regional human rights laws and the International Covenant on Economic, Social and Cultural Rights.
To read more on the case see ESCR-Net”
Hungarian Constitutional Court struck down on the criminalization of homelessness
The highest court in Hungary, the Hungarian Constitutional Court, confirmed that punishing those who are homeless and living on the street is unconstitutional.
The City is for All, an organization involved in this case, notes that “The decision of the Constitutional Court is a victory for the rule of law, for homeless people and for everyone who has spoken out against the public persecution of homeless people over the years.”
According to the The City is For All the court declared, “It is detrimental to the freedom of movement derived from the right to human dignity if the state forces someone to use social services through punishment.” The organization further promotes a law on the right to housing to support the low-income and homeless populations.
For further information see: The City is for All”
HAQ v. Delhi Development Authority, W.P. (C) 2033/2011
On the 23rd and 24th of March, 2011, a large scale forced eviction was carried out by the Delhi Development Authority in Baljeet Nagar (also called Punjabi Basti or Gayatri Colony). A coalition of NGOs was formed to provide residents emergency reliefs as well as legal and advocacy support. On 24 March an urgent petition was filed at the Delhi High Court, resulting in a stay order that halted the demolition. The event left 2000 people homeless. While the outcome was that a majority of homes were saved, the community continues to live without security of tenure and access to adequate services.
More information is available on the website of Nazdeek, a human rights organization in India commited to access to justice.
E.S & S.C. v. United Republic of Tanzania, (March 2015)
In a significant case for women’s land rights, the Committee on the Elimination of All Forms of Discrimination against Women ruled in favour of the rights of women in Tanzania to inherit property. The Committee ultimately held Tanzania “accountable for multiple violations of women’s rights, particularly as relates to their inheritance and property rights.”
A complaint was submitted to the Committee concerning the rights of two widows who were denied the ability to inherit the estates of their late husbands and subsequently evicted from their homes. This appeal was made after exhausting legal remedies in their home country. The Committee challenged the role that discriminatory patrilineal inheritance laws play in leaving women economically disadvantaged and urged the government of Tanzania to take positive measures to compensate the women involved and correct existing inheritance laws.
In a written summary of the case ESCR-Net noted, “The Committee held that Tanzania, by condoning legal restraints on inheritance and property rights that discriminate against women, had violated several articles under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), including, among others, provisions pertaining to equality before the law [15 (1), 15 (2)], the right to bank loans, mortgages and other forms of financial credit [13 (b)], and the same rights for both spouses in respect of the ownership, management, administration and enjoyment of property [16(1)(h)]…
The Committee then called on Tanzania to grant E.S. and S.C. appropriate reparation and adequate compensation, commensurate with the seriousness of the violations of their rights. Moreover, the Committee urged Tanzania to repeal or amend its customary laws, including on inheritance, to bring them into full compliance with CEDAW requirements.”
For more information visit ESCR-Net.
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v.
Johannesburg, South Africa
A landmark case involving the City of Johannesburg affirmed that public engagement with rights-holders is a constitutional requirement before an eviction can proceed. The High Court of South Africa ordered the City of Johannesburg refrain from evicting 400 low-income residents as part of the Inner City Regeneration Strategy. Following unsuccessful appeals, the City followed orders from the Constitutional Court and began a meaningful dialogue with the affected residents. An agreement was reached whereby residents were relocated to accommodation within the city that was both safe and affordable and would be secure against future evictions.
The case itself lead to the resettlement of over 400 people, but has implications for the 67,000 people in the area that live in low-income without the security of tenure. ESCR-Net points to the greater significance of this case on future potential evictions:
“The Court ultimately issued a decision on those policy issues where it found that the city must engage meaningfully with occupants if an eviction is likely to result in homelessness; the Constitution requires that the city consider the potential of homelessness when it decides on an eviction; and that only after a court has ordered an eviction, can it be considered illegal for residents to remain. In light of this decision, where it is clear that the proposed clearance of an unsafe building would lead to homelessness, the State (or City) should, consult meaningfully with occupants to understand their economic situation and, within its available resources, provide adequate alternative housing in which occupants can live.”
More information on the case can be found on ESCR-Net.
To learn more about international guidelines for forced evictions visit the OHCHR website.
Burgess & Anor v Director of Housing & Anor
Ms. Burgess lived with her son in public housing in the state of Victoria, Australia, where she was on the verge of losing her home. Suffering from anxiety and depression, she was facing eviction proceedings for ‘illegal use’ of the property. In Victoria, the steps in the eviction process are: (1) issue a ‘notice to vacate’; (2) apply to the tribunal for a ‘possession order’; (3) if successful, purchase an eviction warrant; and (4) arrange for police to change the locks at the property.
On behalf of Ms. Burgess, Justice Connect Homeless Law lawyers and pro bono counsel applied to Victoria’s Supreme Court for judicial review arguing that that the decisions issue the notice to vacate and purchase the eviction warrant should be quashed on the basis of jurisdictional error (procedural unfairness); failure to take relevant matters into account; and failure to comply with obligations under the State’s human rights legislation, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), which provides that it is unlawful for a public authority to fail to act compatibly with, or give proper consideration to, human rights protected under the Charter (section 38).
The Victorian Charter protects civil and political rights but not economic and social rights (such as the rights to an adequate standard of living or to adequate housing). The Burgesses therefore relied on the right to be free from arbitrary and unlawful interference with home, family and privacy (section 13), and the protections of families and children (section 17), which are the Victorian equivalents of articles 17, 23 and 24 in the International Covenant on Civil and Political Rights.
A judge held, amongst other things, that the decision to issue the notices to vacate failed to observe the rules of natural justice and failed to take into account rights under section 17 of the Charter.
With regard to the warrant, the judge decided that information including the Burgess’ personal circumstances, the impact of eviction, and Ms. Burgess’ son’s best interest, should have been considered (Sec. 17). The failure to take relevant considerations into account was held to be a jurisdictional error and the failure to consider the section 17 rights of Ms. Burgess’ family made the decision unlawful under section 38 of the Charter. On this basis, the decision to purchase the warrant was quashed and Ms. Burgess and her son were able to stay in their home.
In addition to preventing Ms. Burgess entering homelessness, the decision encourages improved accountability and greater fairness in the decision-making of the state housing provider when choosing whether or not to evict tenants, including affording tenants natural justice and considering their human rights.
For more information regarding the use of human rights protections to prevent homelessness in Victoria see Justice Connect Homeless Law, Charting a Stronger Course.”
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