Access to justice for the right to housing


Published
25 July 2018
Author
Special Rapporteur on the right to adequate housing, Leilani Farha
Presented
At the 40th session of the UN Human Rights Council in March 2019

"States cannot hold themselves up as leaders in human rights while leaving increasing numbers of residents to live and die on their streets, with no means to hold their Governments accountable and with no access to effective remedies. The time for excuses, justifications and looking the other way when access to justice is denied for the right to housing has long passed. Rights must have remedies, and Governments must be held accountable to rights holders."
- Conclusions, page 18 of the report (A/HRC/40/61)

Background

Access to justice is a cornerstone of the right to housing. The Special Rapporteur has found that individuals and communities seeking remedies for violations of the right to housing such as homelessness or grossly inadequate housing usually have no place to go to claim the right to housing. They have no effective access to hearings before courts, tribunals or other bodies, where the unacceptable circumstances in which they are forced to live will be considered as human rights violations requiring effective remedies.  They have no ability to challenge the decisions, policies, unregulated markets or systemic neglect that lead to violations of the right to housing. 

Summary

Important advances have been made in recent years to enhance access to justice for the right to housing. At the international level, the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights was an historic advance. Most countries’ constitutions now recognize at least some components of the right to housing and courts have increasingly recognized the right to housing as a component of other rights such as the right to life.  Yet, access to justice, particularly to address systemic issues, remains very limited and  violations of the right to housing are perpetuated when courts  authorize unnecessary evictions, enforce discriminatory planning laws, criminalize homelessness , or refuse to hear systemic claims. When remedies to violations of the right to housing have been ordered, there has often been no assurance that they will actually be implemented.

The report underlines the responsibility of the legislative and executive branches to ensure that laws and regulations are in place to ensure the right to housing and that justice systems are established to provide accessible hearings and effective remedies. Courts, tribunals and administrative decision-makers also have a central role to play in implementing the State’s obligations. They must ensure that the right to housing is considered in all relevant decisions and that domestic law is applied consistently with States’ obligations to respect, protect and fulfil the right to housing.

The Special Rapporteur outlines how compliance with the obligation to progressively realize the right to housing is adjudicated; how forced evictions and criminalization must be prevented through access to justice and participation in decision-making; how national human rights institutions and informal justice systems should complement the role of courts; and how private actors are required to ensure access to justice for the realization of the right to housing.

Access to justice beyond courts

Access to justice needs to be understood broadly, not focusing solely on courts, but including administrative procedures and accessible, community based, informal mechanisms. The report identifies some participatory models for access to justice and highlights the role that human rights institutions, ombudspersons and similar bodies can play.

The report discusses how equal access to justice can be ensured, in particular for victims of housing rights violations, which frequently belong to groups and individuals at risk of marginalization or discrimination, such as indigenous peoples, persons with disabilities,children or racial and ethnic minorities.

The Special Rapporteur argues that the outdated division of the right to housing into justiciable and non-justiciable components, negative and positive rights, must be firmly rejected. Ten key normative principles are identified which States should satisfy to ensure that all components of the right to housing are subject to effective remedies.

Ten guiding principles to ensure access to justice

1. Access to justice must be ensured by all appropriate means and address the needs of diverse groups.

2. States must implement the right to housing within the domestic legal system so as to provide at least the same level of protection as is afforded under international human rights law.

3. Individuals and groups, households and communities must have standing to advance claims and to participate throughout legal processes and the implementation of remedies.

4. Denying access to justice cannot be justified on the basis that the right to housing is not considered justiciable within the State’s domestic legal order.

5. Access to justice must apply to both negative and positive State obligations, including obligations to progressively realize the right to housing.

6. States may delegate components of access to justice for the right to housing to administrative bodies, but judicial remedies must be available when needed.

7. Courts must interpret and apply domestic law in accordance with the State’s obligations to respect, protect and fulfil the right to housing.

8. States must promote decision-making that is consistent with the right to housing.

9. Remedies must address both individual and systemic violations.

10. Remedies must be implemented by Governments and enforced by courts with participation by rights holders.

The Special Rapporteur concludes that access to justice for the right to housing can be provided in all States. It just takes a commitment to do so. In States that have accorded constitutional recognition of the right to housing, courts must breathe life into these provisions so that all components of the right to housing can be claimed, adjudicated and ensured effective remedies. Where States lack explicit constitutional recognition of the right to housing, access to justice can be achieved through the recognition of its interdependence and indivisibility with the right to life and other rights.

A wide range of actors must abandon the marginalization of the right to housing and its claimants from mainstream human rights practice. National human rights institutions, judicial councils, legal communities and international human rights organizations should be at the forefront of collaborative initiatives to ensure access to justice for the right to housing. It is, however, ultimately the State’s responsibility to provide all necessary supports and institutional mechanisms in this regard.

Related event

Access to Justice for Housing Discrimination and Spatial Segregation
Consultation with judges, lawyers, human rights institutions and non-discrimination bodies
7 May 2021, 15:00 CEST (Geneva)
Registration

Further reading

  • Read the full report
  • Committee on Economic, Social and Cultural Rights: General Comments no. 4 (right to housing), no. 7 (forced eviction) and no.9 (duty to give effect to economic, social and cultural rights in the domestic legal order)
  • Guidelines for the implementation of the right to adequate housing, A/HRC/43/43
  • Basic principles and guidelines on development-based evictions and displacement, A/HRC/4/18, Annex I
  • OHCHR Fact Sheet No.21, The Human Right to Adequate Housing

Methodology

The Special Rapporteur invited Governments, civil society organizations and all other relevant stakeholders to provide inputs. The questionnaires and responses are published below.
Questionnaire in English (word | pdf) | Français  (word | pdf) | Español (word | pdf

Inputs received

States

International Organizations

National Human Rights Institutions

Civil Society