Access to justice for the right to housing
The report to the 40th session of the UN Human Rights Council in March 2019 of the Special Rapporteur on the right to adequate housing, Leilani Farha, is devoted to the critical issue of ensuring access to justice for the right to housing.
The report can be read in all UN languages here: A/HRC/40/61
Access to justice is a cornerstone of the right to housing. Since her appointment in 2014, whether on missions, in communications or through research for her thematic reports, 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.
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 Special Rapporteur hopes to engage in constructive dialogue with all three branches of government for this report. It is 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.
In her report, the Special Rapporteur considers access to justice broadly, not focusing solely on courts but also examining administrative procedures and accessible, community based, informal mechanisms. The report identifies emerging local practices and participatory models for access to justice. The report highlights as well the role that human rights institutions, ombudspersons and similar bodies can play.
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 must satisfy to ensure that all components of the right to housing are subject to effective remedies. 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.
In the preparation of the report the Special Rapporteur invited Governments, civil society organizations and all other relevant stakeholders to provide inputs. The questionnaires and responses are published below.
Questionnaire for Governments, civil society and all relevant stakeholders:
National Human Rights Institutions