40/61 Access to justice for the right to housing - Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context

GE.19-00608(E)



Human Rights Council Fortieth session

25 February–22 March 2019

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Access to justice for the right to housing

Report of the Special Rapporteur on adequate housing as a component

of the right to an adequate standard of living, and on the right to non-

discrimination in this context*

Summary

In her report, prepared pursuant to Human Rights Council resolution 34/9, the

Special Rapporteur examines the critical issue of access to justice for the right to housing.

She suggests that the global housing crisis is rooted in a crisis in access to justice because

without access to justice, housing is not properly recognized, understood or addressed as a

human right. Millions who live in homelessness or unacceptable living conditions have no

place where they can claim their right to housing when States have failed to progressively

realize the right, imposed forced evictions, or criminalized those who live in homelessness

or in informal housing. She argues that the outdated division of the right to housing into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.

* Agreement was reached to publish the present report after the standard publication date owing to circumstances beyond the submitter’s control.

United Nations A/HRC/40/61

Contents

Page

I. Introduction: the housing crisis as a crisis in access to justice ...................................................... 3

II. Access to justice for the right to housing: the normative framework ............................................ 4

A. The right to housing made whole.......................................................................................... 4

B. Key principles of access to justice for the right to housing .................................................. 5

III. Access to justice for the progressive realization of the right to housing ....................................... 7

A. The standard of reasonableness ............................................................................................ 7

B. Application in domestic law ................................................................................................. 9

IV. Access to justice in the context of evictions and displacement ..................................................... 10

A. Affirming the rule of law and halting forced evictions ......................................................... 10

B. Reconceiving justice in the context of evictions, displacement and relocation .................... 11

V. Access to justice to end criminalization and discrimination based on housing status ................... 12

VI. Ensuring equality in access to justice ............................................................................................ 13

VII. Access to justice beyond courts ..................................................................................................... 15

A. National human rights institutions ........................................................................................ 15

B. Business and human rights and the right to a remedy ........................................................... 16

C. Informal and customary justice ............................................................................................. 18

VIII. Conclusion and the way forward ................................................................................................... 18

I. Introduction: the housing crisis as a crisis in access to justice

1. An estimated 1.8 billion people lack adequate housing. Twenty-five per cent of the

world’s urban population live in informal settlements. Homelessness and forced evictions

are on the rise in virtually every country. In the United States of America, over 2 million

households are evicted from their homes every year – 4 per minute.1 These numbers reflect

the global crisis in access to adequate housing, but they also reveal a global crisis in access

to justice for the right to housing. When the capacity exists to eliminate widespread

homelessness and inadequate housing, the only explanation for their persistence at current

levels is that States and other actors have failed to recognize housing as a human right. The

denial of access to justice is the embodiment of that failure. The right to access to justice is

“fundamental to the very notion of human rights”.2 To be a rights holder, and for housing to

be treated as a fundamental human right, one must be able to claim rights, to give voice and

context to the deprivation of dignity and rights experienced.

2. Violations of the right to housing are as much failures in the administration of

justice as they are failures of housing programmes. If those living in inadequate housing

and in homelessness have no access to justice, they are deprived of agency to bring

violations to light, to address root causes or ensure appropriate responses. They are unable

to challenge the policy choices and decisions that created the conditions in which they live.

3. Housing is the aspect of peoples’ lives that is most likely to engage the need for

access to justice. Yet access to justice for the right to housing is commonly ignored. In a

survey of 45 countries by the World Justice Project, the most common issues identified by

respondents in which access to justice was needed were overwhelmingly related to

housing.3 When the same project assesses States’ performance in providing access to justice

for fundamental human rights, however, the right to housing is not among the human rights

considered.4 In the 2030 Agenda for Sustainable Development, the targets and indicators

for access to justice under Goal 16 do not consider any aspect of access to justice for the

right to housing. The Guiding Principles on Business and Human Rights have been applied

to the responsibilities of businesses to ensure access to effective remedies, but residential

housing – the world’s largest business – has been almost entirely ignored.

4. Ensuring access to justice for the right to housing must therefore challenge dominant

notions of what access to justice entails. The inquiry must begin by asking what kind of

justice is needed for the right to housing to be vindicated. The procedural and practical

barriers facing potential rights claimants seeking access to courts and tribunals must be

addressed, and so too must substantive barriers stemming from inadequate protection of the

right to housing afforded by existing laws and by the prevailing interpretation and

application of those laws within courts. Courts and tribunals are more often experienced by

those who are living in informal settlements or homelessness as places where evictions are

ordered or criminalizing sanctions imposed, rather than as venues where the right to

housing can be claimed.

5. There have, however, been historic advances in access to justice for the right to

housing in recent years that provide the foundations for a new and transformative approach.

At the international level, the right to housing has been the subject of precedent-setting

adjudication by the Committee on Economic, Social and Cultural Rights. At the national

level, the right to housing has been at the centre of emerging socioeconomic rights

jurisprudence. And at the local level, advocacy for meaningful accountability for the right

1 See https://evictionlab.org/national-estimates/. These estimates represent only rental evictions ordered

by courts and mortgage foreclosures.

2 A/HRC/25/31, para. 2; see also A/63/275 paras. 48–67.

3 World Justice Project, Global Insights on Access to Justice: Findings from the World Justice Project

General Population Poll in 45 Countries (Washington, D.C., 2018). The dominance of housing issues

is clear if issues of housing title and access to water and sanitation are combined in the responses.

4 See https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-

2017%E2%80%932018/factors-rule-law/fundamental-rights-factor.

to housing has become a central focus of social movements and city declarations of human

rights.5

6. The Special Rapporteur has found that in all countries, the right to housing is

understood by rights holders essentially as it is defined under international human rights

law: “the right to live somewhere in security, peace and dignity”.6 The question that follows,

and is invariably put to the Special Rapporteur, is: “Where do we go to claim our right to

housing?” The first and most important step to realizing the right to housing is for States to

answer that question, to ensure that the right to housing is afforded fair hearings and

effective remedies, “by all appropriate means”, through courts, tribunals, rights-based

strategies, human rights institutions, and community-based and informal justice systems.7

II. Access to justice for the right to housing: the normative framework

A. The right to housing made whole

7. Article 8 of the Universal Declaration of Human Rights affirms that everyone has

the right to an effective remedy by the competent national tribunals for acts violating the

fundamental rights granted to him [or her] by the constitution or by law. This applies to all

rights in the Universal Declaration without distinction, including the right to housing under

article 25.

8. The division of the rights in the Universal Declaration of Human Rights into two

separate covenants and the provision of an optional complaints procedure only for civil and

political rights when the two covenants were first adopted led to debates and confusion

regarding the obligation to ensure access to justice and effective remedies for economic,

social and cultural rights. This differential treatment of the two categories of rights

translated into restrictions on access to justice for the right to housing. Usually, only those

components of the right to housing that conform with a civil and political rights model of

protection from State interference, such as freedom from cruel and inhuman treatment or

from interference with privacy and home, were provided with access to justice.

9. As the Secretary-General noted in a 2013 report, the initial confusion regarding

access to justice for economic, social and cultural rights has “since been largely overcome”.

In the last two decades, “the United Nations human rights system has consistently

recognized the right to an effective remedy for violations of economic, social and cultural

rights”.8 These advances, with significant support from civil society, culminated in the

adoption by the General Assembly, by resolution 63/117, of the Optional Protocol to the

International Covenant on Economic, Social and Cultural Rights, heralded as “human rights

made whole” by the United Nations High Commissioner for Human Rights and putting an

end to the differential treatment of the two categories of rights.9

10. These historic advances at the international level grew out of national- and regional-

level struggles for the right to housing, led by human rights defenders. Behind the famous

case names are women such as Olga Tellis in India, Irene Grootboom in South Africa and

Felisa Alicia Saavedra in Argentina and street children such as Villagran Milagra in

5 See information on the new global movement The Shift, available at www.unhousingrapp.org/the-

shift.

6 Committee on Economic, Social and Cultural Rights, general comment No. 4 (1991) on the right to

adequate housing, para. 7.

7 The Special Rapporteur thanks States, national human rights institutes and civil society organizations

for their submissions for the present report. They are available at www.ohchr.org/EN/Issues/Housing/

Pages/AccessToJustice.aspx. The Special Rapporteur also thanks Bruce Porter for his assistance in

preparing the report.

8 A/HRC/25/31, para. 2.

9 Louise Arbour, “Human rights made whole”, Project Syndicate, 26 June 2008.

Guatemala, whose experiences brought to light the inherent connection between the right to

housing and central human rights values linked to the right to a dignified life.10

11. A growing number of States included the right to housing as a justiciable right in

their constitutions, and in jurisdictions that did not recognize the right to housing explicitly

courts began to provide effective remedies for the right to housing by recognizing its

indivisibility with the right to life.11 Ensuring access to justice for the right to housing is

less a question of the specific constitutional protections in place and more a question of

whether courts and Governments are willing to recognize that the right to housing is central

to the core human rights values that courts must safeguard and to which Governments must

be held accountable.

B. Key principles of access to justice for the right to housing

12. The central question, “Where do I go to claim my right to housing?”, must be

answered in the context of a State’s particular legal order. States are permitted to determine

how best, but not whether, to ensure access to justice for various components of the right to

housing. International human rights law imposes a number of overarching obligations on

Governments and courts with respect to access to justice for the right to housing, based on

the following 10 key principles.

Principle 1 – Access to justice must be ensured by all appropriate means and address

the needs of diverse groups.

13. States must ensure access to justice for the right to housing by all appropriate means,

including legislation, to the maximum of available resources, and without discrimination.12

Access to justice for the right to housing must be conceived inclusively, addressing the

diverse circumstances of different groups. It relies on a wide range of approaches, venues

and institutions, including rights-based housing strategies, courts, landlord-tenant tribunals,

human rights institutions and informal and customary justice systems.

Principle 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.

14. Access to justice must be ensured for all components and dimensions of the right to

housing that are guaranteed under international human rights law, ensuring accountability

for the State’s obligations to respect, protect and fulfil the right to housing. Access to

justice must be provided not only for a right to physical shelter, but to a safe and secure

home in which to live in security, peace and dignity. Effective remedies must be available

to ensure legal security of tenure, affordability, habitability, availability of services,

accessibility, location and cultural adequacy.13

Principle 3 – Individuals and groups, households and communities must have standing

to advance claims and to participate throughout legal processes and the

implementation of remedies.

15. Violations of the right to housing may affect both individuals and groups. Entire

communities are often affected by development plans or evictions. Access to justice must

therefore extend to both individuals and groups. Support should be available for them to

participate in all stages of rights claims and in the implementation of remedies. Groups with

10 Supreme Court of India, Olga Tellis and Others v. Bombay Municipal Council, Judgment of 10 July

1985; Constitutional Court of South Africa, Government of the Republic of South Africa and Others v.

Grootboom and Others, Judgment of 4 October 2000; and Supreme Court of the City of Buenos Aires,

Comisión Municipal de la Vivienda v. Saavedra, Felisa Alicia y otros, Judgment of 7 October 2002.

11 See A/71/310.

12 Committee on Economic, Social and Cultural Rights, Ben Djazia and Bellili v. Spain

(E/C.12/61/D/5/2015) para. 13.4.

13 General comment No. 4, para. 8.

interest and expertise in systemic issues being addressed should be provided with amicus or

public interest standing in hearings and be permitted to participate in the implementation of

remedies.

Principle 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.

16. Denying access to justice for the right to housing places the State in non-compliance

with its obligations to ensure effective remedies for all fundamental human rights. This

cannot be justified on the basis that the right to housing or any of its components is not

considered justiciable within the domestic legal order, as this would be contrary to article

27 of the Vienna Convention on the Law of Treaties.14 Domestic courts must therefore

reject any submissions that a claim to the right to housing should not be heard by courts if

no alternative independent body is available to hear the claim. Governments should desist

from making these arguments before courts or international human rights bodies.

Principle 5 – Access to justice must apply to both negative and positive State

obligations, including obligations to progressively realize the right to housing.

17. There must be access to justice for positive rights claims engaging resource

allocation, such as for rental assistance or “housing first” programmes, as well as negative

rights claims challenging State action resulting in deprivation of the right to housing, such

as forced eviction or home demolition. Any distinction between the two categories of rights

with respect to access to justice “is incompatible with the principle that the two sets of

human rights are indivisible and interdependent”. Moreover, it would “drastically curtail

the capacity of the courts to protect the rights of the most vulnerable and disadvantaged

groups in society”.15

Principle 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.

18. The right to an effective remedy does not always require a judicial remedy.

Administrative and other forms of remedies that ensure compliance with the right to

housing may be adequate as long as they are “accessible, affordable, timely and

effective”.16 Many States rely on administrative tribunals for remedies for protections of

tenants’ rights, health and safety or land title. Alternative forms of remedy, however, should

generally be reinforced and complemented by judicial remedies. Whenever the right to

housing “cannot be made fully effective without some role for the judiciary, judicial

remedies are necessary”.17

Principle 7 – Courts must interpret and apply domestic law in accordance with the

State’s obligations to respect, protect and fulfil the right to housing.

19. The role played by courts and administrative decision makers is one of the most

important factors determining State compliance with the right to housing. Courts are not

simply neutral arbiters of rights claims; they are also the guardians of rights.18 Jointly with

other branches of Government, they are bound by the State’s obligations to respect, protect

and fulfil the right to housing.19 The judiciary must, therefore, exercise its authority to

interpret and apply domestic law in a manner that promotes the realization of the right to

housing and ensures effective remedies for this right. 20 “Neglect by the courts of this

14 “A party may not invoke the provisions of its internal law as justification for its failure to perform a

treaty.”

15 Committee on Economic, Social and Cultural Rights, general comment No. 9 (1998) on the domestic

application of the Covenant, para. 10.

16 Ibid., para. 9.

17 Ibid.

18 See Human Rights Council resolutions 29/6 and 31/2.

19 Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal

obligation imposed on States parties to the Covenant, para. 4.

20 General comment No. 9, para. 15.

responsibility is incompatible with the principle of the rule of law, which must always be

taken to include respect for international human rights obligations.”21 When courts approve

evictions without ensuring alternative accommodation or fail to provide remedies for

violations of the right to life caused by homelessness, they violate international human

rights and the rule of law and, in so doing, place the State in non-compliance with its

international human rights obligations.

Principle 8 – States must promote decision-making that is consistent with the right to

housing.

20. Governments and courts must ensure that all exercises of statutory authority,

administrative decisions and policies accord with a State’s obligations to ensure the right to

housing. In litigation, Governments should promote and adopt interpretations of domestic

law that are consistent with the obligation to ensure effective remedies, including when

defending against alleged violations.22 Decision makers with discretionary authority should

exercise that authority consistently with the right to housing, for example by dismissing an

eviction application which may result in homelessness or an application for zoning

approval for a development which fails to further the realization of the right to housing.

Principle 9 – Remedies must address both individual and systemic violations.

21. Individual remedies should include, where appropriate, compensation and reparation

for any violation of the right to housing, including the right to return to a home after an

illegal eviction. Remedies must also address the structural causes and policies that gave rise

to the violation and ensure non-repetition. Where appropriate, Governments should be

required to adopt or amend legislation, allocate necessary resources or regulate private

actors in the housing market to address structural causes of violations of the right to

housing.

Principle 10 – Remedies must be implemented by Governments and enforced by

courts with participation by rights holders.

22. Remedies ordered by courts with respect to the right to housing, whether to prevent

threatened evictions or to implement effective housing strategies to address systemic

violations, are too often ignored by Governments. It is fundamental to the rule of law that

Governments respect the decisions of courts and human rights bodies by implementing

required remedies. Where Governments or others require time to implement structural

remedies, such as developing programmes to address the housing needs of particular groups,

remedies should provide for independent supervision by the court or another authority,

enforceable timelines, monitoring and reporting, and provision for participation and

consultation with those affected.

III. Access to justice for the progressive realization of the right to housing

A. The standard of reasonableness

23. The majority of violations of the right to housing derive from the failure of States to

progressively realize the right to housing by adopting appropriate measures to address the

unacceptable circumstances in which people are living. Whether it is a failure to implement

participatory upgrading plans in informal settlements or to implement plans to reduce and

eliminate homelessness within a reasonable time, States’ failures to take positive measures

to ensure the realization of the right to housing must be addressed as human rights

violations affecting individuals and communities. Those affected must have access to

justice to hold States accountable to the obligations described in article 2 (1) of the

21 Ibid., para. 14.

22 E/C.12/CAN/CO/4-E/C.12/CAN/CO/5, paras. 11 (b) and 36.

International Covenant on Economic, Social and Cultural Rights: to take steps “to the

maximum of its available resources, with a view to achieving progressively the full

realization of the [right to housing] by all appropriate means, including particularly the

adoption of legislative measures”.

24. The adoption of the Optional Protocol resolved two critical issues that were debated

during the drafting process. The adopted text established that claims submitted by

individuals who have been affected by States’ failures to progressively realize Covenant

rights are justiciable.23 And it also established that while there may be a range of policies or

approaches through which States may comply with article 2 (1), the means chosen must

comply with a standard of “reasonableness”.24

25. The Committee on Economic, Social and Cultural Rights has identified a number of

factors to consider in assessing reasonableness. Measures must be deliberate, concrete and

targeted towards the fulfilment of the right; implemented within a reasonable time frame;

allocate resources in accordance with international human rights standards; address the

precarious situation of disadvantaged and marginalized individuals or groups; and ensure

that decision-making is transparent and participatory.25

26. The assessment of reasonableness relies on hearing from rights holders. It is a

contextual analysis that takes as its starting point the dignity interests brought to light

through access to justice. The text of article 8 (4) of the Optional Protocol drew directly

from the decision of the Constitutional Court of South Africa in the Grootboom case, in

which the reasonableness of housing policies was assessed in the context of the

circumstances of Irene Grootboom and others living with their children under plastic sheets

on a sports field, without water or sanitation. The Court emphasized that progressive

realization is not simply about statistical progress. Adequate housing is recognized as a

fundamental human right “because we value human beings … [E]veryone must be treated

with care and concern. If the measures, though statistically successful, fail to respond to the

needs of those most desperate, they may not pass the test.”26

27. The standard for access to justice for the right to housing under international law,

therefore, requires an assessment of measures taken to realize the right to housing, in the

context of both the capacity of the State and of lived realities brought forward through the

claiming of rights. It is a standard that accords flexibility as to the precise policy measures

chosen but is firmly grounded in the obligation to fully realize the right to housing in the

shortest possible time. Sandra Liebenberg explains that applying the reasonableness

standard does not mean simply deferring to Government to make policy choices, but rather

provides a critical space for rights claimants to participate in designing and implementing

strategies and programmes. 27

28. Access to justice must also be ensured when States reduce the enjoyment of the right

to housing through retrogressive measures. 28 Courts and other adjudicative bodies must

require the State to prove that any such measures are fully justified on the basis of very

strict criteria, and taking into account the maximum available resources and any alternatives

available. Measures must be necessary and proportionate, remain in place only insofar as

they are necessary, not result in discrimination and ensure that the rights of disadvantaged

and marginalized individuals and groups are not disproportionately affected, and that the

23 Catarina de Albuquerque and Malcolm Langford, “The origins of the Optional Protocol” in The

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A

Commentary, Malcom Langford and others, eds. (Cape Town, Pretoria University Law Press, 2016).

24 Article 8 (4) of the Optional Protocol.

25 General comment No. 3 (1990) on the nature of States parties’ obligations, para. 2.

26 Government of the Republic of South Africa and Others v. Grootboom and Others, para. 44.

27 Sandra Liebenberg, “Participatory justice in social rights adjudication”, Human Rights Law Review,

vol. 18, Issue 4 (December 2018), pp. 623–649.

28 See Aoife Nolan, Nicholas J. Lusiani and Christian Courtis, “Two steps forward, no steps back?

Evolving criteria on the prohibition of retrogression in economic and social rights”, in Economic and

Social Rights After the Global Financial Crisis, Aoife Nolan, ed. (Cambridge University Press, 2014),

pp. 128–129.

affected groups have been afforded genuine participation. All legal protections of the right

to housing, and access to justice to ensure compliance, must remain in place.29

29. The critical link between individual claims and progressive realization of the right to

housing has been elucidated in the jurisprudence of the Committee on Economic, Social

and Cultural Rights under the Optional Protocol. In the case of Ben Djazia and Bellili v.

Spain, the Committee assessed measures taken by the State party in light of the

circumstances of a family who became homeless after an eviction. The reasonableness

standard was formulated as requiring the State to make “all possible effort, using all

available resources, to realize, as a matter of urgency, the right to housing of persons who,

like the authors, are in a situation of dire need”. 30 This necessitated attention to both

individual circumstances and structural factors.31 As remedy, the State party was required to

engage in genuine consultation with the family to ensure that they were afforded adequate

accommodation and to develop a comprehensive plan with the necessary resources,

indicators, time frames and evaluation criteria for the progressive realization of the right to

housing for low-income persons.32

B. Application in domestic law

30. The right to housing should be implemented in domestic law so as to include

obligations of progressive realization. The 2010 Constitution of Kenya provides a helpful

model, requiring the State to take “legislative, policy and other measures” for progressive

realization of the right to housing, and setting out principles for the assessment of whether

resource allocation and policy choices are in line with article 8 (4) of the Optional

Protocol.33

31. In many Latin American countries, the amparo procedure can provide remedies for

the right to housing, including for violations linked to progressive realization. 34 For

example, in a case brought by a woman and her son living in homelessness, a court in

Argentina required the Government to implement a plan to eliminate homelessness, with a

timetable for the implementation, the participation of those affected and the allocation of

the maximum available resource.35

32. Indian courts have recognized that a constitutional obligation of progressive

realization of the right to housing may be inferred from the guarantee of the right to life.36

This interpretive approach is consistent with the Human Rights Committee’s recently

adopted general comment on the right to life, which recognized that the right to life requires

“appropriate measures” to address “general conditions in society [such as] homelessness” in

order to ensure the conditions necessary for a dignified life.37

29 E/C.12/2016/1, para. 4.

30 E/C.12/61/D/5/2015, para. 17.5.

31 Ibid., para. 17.2.

32 Ibid., para. 21 (d).

33 Constitution of Kenya, art. 21 (2); see, however, Court of Appeal, Kenya Airports Authority v. Mitu-

Bell Welfare Society and others, civil appeal No. 218, Judgment of 11 April 2013, in which the Court

invokes the “political questions” doctrine to limit the protection of the right to alternative housing for

an evicted community.

34 Supreme Court of Argentina, Q.C., S.Y. c. Gobierno de la Ciudad de Buenos Aires, petition for

amparo, Judgment of 24 April 2012; Constitutional Court of Ecuador, case No. 1207-10-EP,

Judgment of 17 April 2012; and Colombian Constitutional Court, decision No. T-025/04, 17 June

2004.

35 Cámara de Apelaciones en lo Contencioso Administrativo y Tributario de la Ciudad Autónoma de

Buenos Aires, Ramallo, Beatriz y otros c. Gobierno de la Ciudad de Buenos Aires, Judgment of 12

March 2002.

36 Supreme Court of India, People’s Union for Civil Liberties v. Union of India and Others, No. 196 of

2001, Judgment of 30 November 2001; and Bombay High Court, Shivaji Krishna Zunjare v. State of

Maharashtra and Others, Judgment of 23 July 2004, para. 6.

37 General comment No. 36 (2018) on the right to life, para. 26.

33. The Revised European Social Charter has provided an important context for

advancing claims related to the progressive realization of the right to housing. Article 31 of

the Revised Charter requires States to undertake positive measures to promote access to

adequate housing in order to prevent and reduce homelessness and to ensure affordable

housing for low-income households. In FEANTSA v. France the European Committee on

Social Rights clarified the obligation on States to “take steps within a reasonable time, with

measurable progress and making maximum use of available resources”.38 More recent cases

have addressed the right to housing of the Traveller and Roma communities, families and

unaccompanied children.39

34. Despite the emerging regional and domestic jurisprudence, the extent to which

claimants are securing access to justice for the progressive realization of the right to

housing remains extremely limited. Ensuring access to justice in this context is an

immediate and urgent obligation. All States must adopt housing strategies that include

claiming mechanisms for accountability to the obligations of eliminating homelessness and

realizing the right to adequate housing for all in the shortest possible time.40 As noted in the

Special Rapporteur’s previous report, these legal obligations should be aligned with the

commitments made in the 2030 Agenda for Sustainable Development to ensure adequate

housing for all by 2030.41

IV. Access to justice in the context of evictions and displacement

A. Affirming the rule of law and halting forced evictions

35. The definition of forced evictions under international human rights law centres on

the denial of access to justice, and access to justice is critical for their prevention. Forced

evictions are defined as “the permanent or temporary removal against their will of

individuals, families and/or communities from the home and/or land which they occupy,

without the provision of, and access to, appropriate forms of legal or other protection”.42

This definition also applies to any removal of homeless people from where they are living.

Forced evictions constitute a gross violation of international human rights and must be

strictly prohibited in domestic law, properly enforced by courts. Court orders must be fully

respected and implemented by State authorities.43

36. Access to justice must ensure that eviction is only carried out as a last resort, in

accordance with all legal requirements and with prior genuine consultation with those

affected, that all viable alternatives to the eviction are explored, and that no one will be

rendered homeless as a result of the eviction. Courts must require all appropriate measures

to be taken to ensure, where possible, that adequate alternative land and housing are

available.44 Victims of forced evictions must receive fair and just compensation for any

losses, both personal and real, including the loss of other property or goods. 45 Where

38 European Committee on Social Rights, European Federation of National Organisations Working with

the Homeless (FEANTSA) v. France (complaint No. 39/2006), Merits, decision of 5 December 2007,

para. 58.

39 European Committee on Social Rights, European Roma and Travelers v. Czech Republic (complaint

No. 104/2014), Merits, decision of 17 May 2016; International Federation for Human Rights (FIDH)

v. Ireland (complaint No. 110/2014), Merits, decision of 12 May 2017; and European Committee for

Home Based Priority Action for the Child and the Family v. France (complaint No. 114/2015), Merits,

decision of 24 January 2018.

40 See general comment No. 4. See also OL CAN 2/2018, available from the communications database

of special procedures (www.ohchr.org/en/hrbodies/sp/pages/communicationsreportssp.aspx).

41 See A/HRC/37/53.

42 Committee on Economic, Social and Cultural Rights, general comment No. 7 (1997) on forced

evictions, para. 4.

43 Commission on Human Rights resolutions 1993/77 and 2004/28.

44 See general comment No. 7; and E/C.12/61/D/5/2015, paras. 13.4 and 15.1–15.2.

45 General comment No. 7, para. 13.

possible, they must be granted a right of return with any destroyed housing reconstructed or

replaced with adequate housing.46

37. Forced evictions and violations of these clear legal standards are rampant worldwide.

Usually there is no access to courts. At other times, courts order evictions in violation of

international human rights law and in some circumstances, authorities act in blatant

defiance of court injunctions. The Housing and Land Rights Network documented the

demolition of over 53,000 homes in forced evictions in 2017 in India. Court orders were

responsible for 17 per cent of them.47 In recent communications the Special Rapporteur has

been informed that tens of thousands of migrants on the outskirts of Beijing48 and 26,000

households in Italy49 were evicted in 2017 with no provision of alternative housing. Recent

changes to legislation in Hungary require the forced eviction of homeless people from

where they are residing, with mandatory incarceration after two warnings.50 Some 30,000

residents of the Otodo Gbame community were forcibly evicted from their ancestral fishing

settlement in Nigeria and their homes demolished in violation of a court injunction.51 In

Kenya, authorities similarly ignored a court order and forcibly evicted the Sengwer

indigenous people from the Embobut, burning 1,800 homes to the ground.52

B. Reconceiving justice in the context of evictions, displacement and

relocation

38. Access to justice in the context of displacement cannot be restricted to responding to

threatened evictions or to seeking remedies after irreparable damage has been done to

peoples’ lives and communities. Applications to evict communities are usually symptoms

of States’ failures to meaningfully engage with communities to develop alternatives that

respect their rights and that can be implemented cooperatively, without the use of force.

Access to justice must be reconceived both in legislation and in practice to ensure rights-

compliant decision-making from the earliest stages of any relocation or development plan.

Engagement must go beyond mere consultation and ensure rights-based negotiation, with

recourse to courts where necessary to ensure human rights compliance.53 A facilitator from

a human rights institution or ombudsperson’s office may be appointed to oversee this

process.

39. Human rights impact assessments must be conducted prior to the approval of any

development plan. 54 These assessments must provide for hearings and meaningful

engagement through which residents can affirm and secure their right to housing.

Commitments made by international financial institutions and development banks to

integrating human rights in development should similarly require rights-based engagement

with affected communities and ensure access to justice through complaints procedures.55

40. Access to justice must also be provided to address the underlying causes of

displacement and evictions. Where increased numbers of households are unable to afford

rent or mortgage payments, courts should require Governments to provide financial

assistance and to adopt other measures to allow people to remain in their homes. Effective

46 A/73/310/Rev.1, para. 34. See also A/HRC/4/18, annex I; and High Court of Kenya at Embu, Ibrahim

Sangor Osman v. Minister of State for Provincial Administration and Internal Security, Judgment of

16 November 2011.

47 Housing and Land Rights Network, Forced Evictions in India in 2017: An Alarming National Crisis,

fact sheet, February 2018.

48 JAL CHN 8/2018.

49 JAL ITA 3/2018.

50 See www.ohchr.org/Documents/Issues/Housing/AmicusConstitutionalCourtHungary_1.pdf.

51 UA NGA 4/2016.

52 See submission by Amnesty International for the present report, pp. 6–7.

53 Lucy Williams, “The right to housing in South Africa: an evolving jurisprudence”, Columbia Human

Rights Law Review, vol. 45, No. 3 (Spring 2014), pp. 827–834.

54 See A/HRC/4/18, annex I, paras. 28–36.

55 C. Daniel and others, eds., Glass Half Full? The State of Accountability in Development Finance

(Amsterdam, Centre for Research on Multinational Corporations, 2016).

mechanisms must also be in place to ensure hearings of challenges to development plans

that would result in displacement of lower-income communities.

V. Access to justice to end criminalization and discrimination based on housing status

41. Laws and their interpretation and application by courts frequently perpetuate

systemic discrimination and stigmatization against those who are homeless or living in

informal settlements.56 Rather than being treated as rights holders entitled to remedies for

serious violations of the right to housing, these groups are treated as violators of laws and

“encroachers” on the land.

42. In keeping with international human rights law, access to justice must be

reconceived to focus on protecting and ensuring the right to housing for those who are

homeless and inadequately housed and must not be used to criminalize them. The Human

Rights Council has called upon States to take all measures necessary to eliminate legislation

that criminalizes homelessness and to ensure an effective remedy and the right to access to

justice.57 United Nations treaty bodies have established that discrimination on the grounds

of socioeconomic status, including homelessness, is a prohibited ground under international

human rights law and must be recognized within domestic justice systems. 58 The

Committee on the Elimination of Racial Discrimination has recognized the criminalization

of homelessness as intersectional discrimination, linked to systemic racism and colonization

of indigenous peoples.59

43. The Human Rights Committee has found that the criminalization of homelessness

may violate the right to freedom from cruel, inhuman or degrading treatment, the right to

liberty and security of the person and protection from arbitrary arrest or detention. 60

Domestic courts have reached similar findings. Courts in the United States have invoked

constitutional protection from cruel and unusual punishment to strike down local

ordinances that ban sleeping in public spaces and prohibited vehicles serving as homes

from being towed away for parking infractions.61 Canadian courts have struck down city

bylaws preventing homeless people from sheltering themselves overnight in parks under

makeshift homes of tarps or cardboard boxes as violating the right to life, liberty and

security of the person.62

44. Ensuring access to justice to challenge forced eviction and criminalization in these

cases is important, but it is alarming that courts have not gone further to recognize the need

for positive measures for access to adequate housing. Ensuring only a right to live in a

cardboard box or under plastic in the most affluent countries in the world does not remotely

satisfy the standard of reasonable measures required under international human rights law.

Courts must interpret the rights relied upon in these cases – to life, security of the person

and equality or freedom from cruel and inhuman treatment – consistently with States’

obligations to take positive measures to address homelessness itself as an egregious

violation of human rights.63 Initiatives like the Homeless Bill of Rights in Europe and the

Housing Not Handcuffs movement in the United States advocate strongly against

56 See A/HRC/31/54 and A/73/310/Rev.1.

57 Resolution 31/9. See also A/HRC/13/20.

58 Human Rights Committee, Whelan v. Ireland (CCPR/C/119/D/2425/2014); and general comment No.

36, para. 26.

59 See, for example, CERD/C/USA/CO/7-9.

60 CCPR/C/USA/CO/4.

61 United States Court of Appeals for the Ninth Circuit, Martin and others v. City of Boise, Opinion of 4

September 2018; and Superior Court of Washington for King County, Seattle v. Steven Gregory Long,

ruling of 2 March 2018.

62 Supreme Court of British Columbia, Abbotsford (City) v. Shantz, Judgment of 21 October 2015.

63 For an analysis of cases in the United States in this light, see Eric Tars and others, “Can I get some

remedy? Criminalization of homelessness and the obligation to provide an effective remedy”,

Columbia Human Rights Law Review, vol. 45, Issue 3, pp. 738–771.

criminalization while properly emphasizing that “the most important right a homeless

person has is to exit homelessness”.64

VI. Ensuring equality in access to justice

45. Victims of violations of the right to adequate housing are among the most

marginalized groups in society. They face a range of barriers to accessing justice, including

challenges related to literacy, education, poverty, discrimination, access to legal

representation and ability to navigate complex legal and administrative systems.65 Where

legal aid is available, it is often unavailable for housing cases and rarely available to

advance substantive claims to the right to housing. Lengthy delays in cases being heard and

decided means that access to justice may be too late to be effective for those in the most

dire circumstances. Linguistic, cultural and religious barriers are particularly acute for

indigenous peoples, ethnic minorities and migrants. 66 States must take all reasonable

measures to overcome these barriers and ensure the widest possible enjoyment of access to

justice for the right to housing. Mobile courts can provide access to justice in remote areas

and legal assistance should be provided through community outreach, combined with

community legal education about the right to housing and how to claim it. The right of

access to justice for the right to housing requires distinctive approaches for different groups.

46. Access to justice for indigenous peoples must be implemented in accordance with

the United Nations Declaration on the Rights of Indigenous Peoples.67 The Declaration

affirms that indigenous peoples have the right to determine and develop priorities and

strategies for exercising their right to housing and other programmes through their own

institutions where possible. No relocation or development affecting indigenous

communities may occur without their free, prior and informed consent. 68 States must

establish, in conjunction with indigenous peoples, “a fair, independent, impartial, open and

transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs

and land tenure systems, to recognize and adjudicate the rights of indigenous peoples

pertaining to their lands, territories and resources” (art. 27). The Indigenous and Tribal

Peoples Convention, 1989 (No. 169) of the International Labour Organization similarly

guarantees free and informed consultations, and due regard to indigenous custom where

compatible with international human rights. Thus, indigenous peoples have the right to the

adjudication of their claims to the right to land and housing in a manner which respects

their own laws and traditions.

47. Indigenous justice systems should be fully supported by States so that they may

develop distinctive approaches to ensuring the right to housing. Particular efforts are

required to ensure that the rights of urban indigenous peoples living outside of traditional

territories, often in homelessness or inadequate housing, are equally protected. A number of

States have incorporated these international norms into domestic law, either through

legislation or through judicial interpretations.69 Article 57 of the Constitution of Ecuador is

exemplary in this regard, though its implementation has been lacking.

48. Some indigenous claims to the right to land and housing that have been denied

within national systems have been addressed within regional systems. Considering the

eviction of the Ogiek community from ancestral lands in the Mau Forest of Kenya, the

African Court on Human and Peoples’ Rights drew on the United Nations Declaration to

recognize the obligations of the State to take positive measures to support the rights of

64 See www.housingrightswatch.org/sites/default/files/Template%20Homeless

%20Bill%20of%20Rights%20EN_0.pdf; see also http://housingnothandcuffs.org.

65 A/67/278, paras. 5–6; see also submission by Defenseur des droits, France, for the present report.

66 Julinda Beqiraj and Lawrence McNamara, International Access to Justice: Barriers and Solutions

(International Bar Association, 2014).

67 For an elaboration of access to justice for indigenous peoples based on the Declaration, see

A/HRC/27/65.

68 Articles 10, 11, 19, 28 and 32.

69 Inter-American Court of Human Rights, Kichwa Indigenous People of Sarayaku v. Ecuador,

Judgment of 27 June 2012, para. 164.

indigenous peoples to development and culture and to remain on their traditional

territories.70 The Inter-American Court of Human Rights has affirmed that the distinctive

relationship with land, property and housing among indigenous peoples must be

incorporated into the interpretation and application of the right to property under the

American Convention on Human Rights and has developed extensive jurisprudence on the

rights of indigenous peoples. 71 In the recent case of Kaliña and Lokono Peoples v.

Suriname, the Court found that the laws of Suriname failed to provide legal remedies for

the protection of the collective land rights of indigenous peoples, depriving the Kaliña and

Lokono peoples of land and access to a river that was essential to both their cultural life and

their survival. 72 The Court ordered the adoption of legislative and other measures to

recognize the rights of all indigenous and tribal peoples subject to State jurisdiction.

49. Women experience multiple systemic barriers to access to justice. As noted by the

Committee on the Elimination of Discrimination against Women, obstacles include “gender

stereotyping, discriminatory laws, intersecting or compounded discrimination, procedural

and evidentiary requirements and practices, and a failure to systematically ensure that

judicial mechanisms are physically, economically, socially and culturally accessible to all

women”.73 Access to justice for the right to housing for women – as described in thematic

reports of previous mandate holders – means women must be able to challenge systemic

discrimination with respect to land, housing and property74 in a range of areas, including

inheritance, marriage, divorce, succession and title registration.

50. Where access to justice in housing and land relies on customary laws and traditional

practices, women must have recourse to formal justice systems to challenge systemic

discrimination.75 On the other hand, when customary ownership and tenure arrangements

are replaced by formal title, property rights, financing and new tenure arrangements,

women also face systemic discrimination within formal justice systems. Women are often

denied equal access to title, rental agreements or credit to finance housing.76 Concerted

efforts are required to provide spaces and support for women to make substantive equality

claims in all areas related to housing and through which women-led transformative

remedies can be designed and implemented. Support should be provided for legal

empowerment strategies and community-based human rights education for women.77

51. Access to justice for persons with disabilities requires States to take positive

measures in accordance with article 13 of the Convention on the Rights of Persons with

Disabilities to ensure effective participation in all stages of legal processes. Justice systems

must recognize both the barriers faced in developing and taking forward disability-related

claims and the distinctive nature of the right to housing claims advanced. Adjudication of

such claims must operate within the “disability human rights paradigm” affirmed in the

Convention and described in the Special Rapporteur’s report on the right to housing of

70 African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v.

Republic of Kenya (application No. 006/2012), Judgment of 26 May 2017, para. 126.

71 For a summary, see Inter-American Court of Human Rights, Kaliña and Lokono Peoples v. Suriname,

Judgment of 25 November 2015, paras. 129–132.

72 Ibid., paras. 152–160.

73 General Recommendation No. 33 (2015) on women’s access to justice, para. 3; see also Committee

on Economic, Social and Cultural Rights, general comment No. 16 (2005) on the equal right of men

and women to the enjoyment of all economic, social and cultural rights, paras. 21 and 38.

74 See E/CN.4/2006/118 and A/HRC/19/53.

75 See International Network for Economic, Social and Cultural Rights Women and ESCR Working

Group, “Mapping study on women’s rights related to land, housing and natural resources”, July 2016.

76 Ben Cousins and Espen Sjaastad, “Formalisation of land rights in the South: an overview” in Land

Use Policy, vol. 26, No. 1 (January 2009).

77 United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women) and

others, A Practitioners’ Toolkit on Women’s Access to Justice Programming: Introduction (United

Nations, 2018). See, for example, the mobile courts initiative in the Democratic Republic of the

Congo, available at http://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/Case-

Study-DRC-Mobile-Gender-Courts.pdf; and the women’s initiative in Bangladesh, available at

www.angoc.org/wp-content/uploads/2016/01/Women-issue-brief1.pdf .

persons with disabilities, focused on dignity, substantive equality, accessibility and

participation and ensuring the right to live independently in the community.78

52. Children’s access to justice for the right to housing must be founded on the

principle of the best interests of the child and require the legal empowerment of children

through access to information and support, provided in an age-appropriate manner, and

ensure effective means to claim their rights.79 Special measures must be taken to provide

access to justice for children in street situations. According to the Committee on the Rights

of the Child, this includes, “access to individual complaints mechanisms, by children

themselves and/or represented by adults, and to judicial and non-judicial redress

mechanisms at the local and national levels, including independent human rights

institutions”.80

53. Access to justice for racial and ethnic minorities must address the intersection of

systemic racism and violations of the right to housing. The International Convention on the

Elimination of All Forms of Racial Discrimination prohibits discrimination in housing

based on race, colour, or national or ethnic origin and ensures equality in the enjoyment of

the right to housing. Discrimination and evictions facing Roma communities in Europe and

the disproportionate number of African Americans among the homeless in the United States

are examples of grossly unequal enjoyment of the right to housing that require enhanced

access to justice for structural remedies. Remedies must include positive measures to

address systemic inequality in housing conditions as well as preventing racial

discrimination in access to land, mortgages, rental housing and services. Discrimination on

the grounds of race and ethnicity intersecting with other grounds, including socioeconomic

status and gender, must be recognized.

54. Access to justice for migrants must ensure effective remedies for widespread

systemic discrimination in access to shelters and public and private housing.81 Migrants

must be empowered to challenge laws that exclude them from accessing social housing or

that forbid private landlords from renting to them. Where migrants themselves are not in a

position to advance claims on their own behalf, claims should be heard from representative

organizations. Migrants must have access to legal assistance without requiring disclosure of

their immigration status to public authorities and, where necessary, access to complaints

procedures that preserve anonymity. Violations of the right to housing of migrants cannot

be justified as measures to discourage irregular migration.

VII. Access to justice beyond courts

A. National human rights institutions

55. National human rights institutions have a clear responsibility and a critical role to

play in promoting and ensuring access to justice for the right to housing. To qualify as such

under the principles relating to the status of national institutions for the promotion and

protection of human rights (the Paris Principles), human rights commissions,

ombudspersons or public defenders are required to identify and address areas of State non-

compliance with obligations to ensure access to justice for violations of all human rights.

They should therefore examine legislative and administrative provisions relating to the right

to housing to ensure compliance with the normative framework for access to justice as

described above. While many national human rights institutions have failed to devote equal

resources to economic, social and cultural rights, and to the right to housing in particular,

78 A/72/128, paras. 1–7 and 17–19.

79 A/HRC/25/35.

80 General comment No. 21 (2017) on children in street situations, para. 22.

81 Committee on the Elimination of Racial Discrimination, General Recommendation No. 30 (2004) on

discrimination against non-citizens.

most have authority to address human rights in housing and are well positioned to play a

critical role in this regard.82

56. National human rights institutions should monitor the progressive realization of the

right to housing, hold hearings to ensure that the circumstances of marginalized groups are

fully addressed and recommend appropriate remedial actions or policy responses by

Governments or private actors.83 In their engagement with the Sustainable Development

Goals, they should ensure access to justice and accountability for progressive realization,

including goals and timelines consistent with target 11.1 to ensure access to safe, secure

and affordable housing for all by 2030.

57. National human rights institutions should provide public legal education and

assistance to rights claimants to access justice for the right to housing through all available

mechanisms. They may assist rights holders to bring cases to courts or tribunals by

initiating claims jointly with rights holders, by participating as third parties or amicus, by

providing necessary evidence on systemic issues or by supervising the implementation of

remedies. The Defensoría del Pueblo in Colombia has conducted site visits in order to hear

directly from communities, forwarded information about systemic violations of the right to

housing to municipal or national authorities and followed up with strategic litigation on the

right to housing when necessary.84 The Scottish Human Rights Commission is playing a

leading role in developing models for ensuring effective remedies for the right to housing

and other socioeconomic rights.85

B. Business and human rights and the right to a remedy

58. With widespread deregulation and privatization of housing and unprecedented

investment by private equity firms, pension funds and other financial actors in housing

markets, ensuring access to justice to hold private actors accountable to the right to housing

is more important than ever. This is an obligation of States, not something that can be left

up to private actors to implement on a voluntary basis. Whatever role is accorded private

actors and investors in the housing system, States cannot contract out of their obligations to

provide access to justice for the right to housing. They must adopt “legislative,

administrative, educational and other appropriate measures” requiring that the actions of

private actors be consistent with, and do not undermine, the realization of the right to

housing.86

59. States must ensure access to effective remedies not simply when private actors

create “harms” or “human rights abuses” as they are traditionally understood, but also to

ensure the progressive realization of the right to housing “by all appropriate means”.

Access to justice must be available not only when corporations have actively deprived

people of the right to housing through evictions, land grabbing or other “abuses”, but also

when their actions undermine the realization of the right to housing, such as when private

equity and asset management firms purchase affordable housing to replace it with luxury

developments. Whether local, national or transnational, businesses involved in developing,

renting, selling, managing or investing in housing, as well as those providing credit for

housing, must be held accountable through access to justice for those affected by their

actions.

82 Committee on Economic, Social and Cultural Rights, general comment No. 10 (1998) on the role of

national human rights institutions in the protection of economic, social and cultural rights; see also

submissions for the present report by Azerbaijan, Colombia, France, Georgia, Germany, Guatemala,

Nicaragua, the South African Human Rights Commission, the Ombudsman Institution of Turkey and

Housing and Land Rights Network.

83 See submission by the South African Human Rights Commission for the present report, p. 8.

84 See submission by the Defensoría del Pueblo of Colombia for the present report.

85 Katie Boyle, Models of Incorporation and Justiciability for Economic, Social and Cultural Rights

(Edinburgh, Scottish Human Rights Commission, 2018).

86 Committee on Economic, Social and Cultural Rights, general comment No. 24 (2017) on State

obligations under the International Covenant on Economic, Social and Cultural Rights in the context

of business activities, para. 14.

60. A wide range of options are available to States to ensure such accountability. In

some constitutions, the right to housing applies directly to private actors, allowing access to

effective remedies where actions of landlords, banks and financial actors undermine this

right. 87 In others, where constitutional obligations are restricted to Governments,

constitutional litigation may require Governments to impose necessary regulations.

Privatization should also be subject to judicial review when it is contrary to the progressive

realization of the right to housing.88

61. The barriers facing claimants seeking to hold corporate actors accountable, however,

are often insurmountable. Complex corporate structures and veils are prevalent among

investors in housing and are difficult to pierce. There is no “equality of arms” between low-

income communities and massive private equity firms. The Special Rapporteur has heard

directly from tenants in multiple countries dealing with the same transnational private

equity firms acting as remote landlords. All have common complaints but nowhere to go for

hearings.

62. Where private investors have been provided with development assistance, access to

justice may be provided by way of complaints procedures through the relevant international

financial institutions. The Compliance Advisor/Ombudsman for private sector lending

through the World Bank has investigated several complaints related to housing, including

when an investor failed to consider the rights of current residents in a development

project. 89 By and large, however, international financial institutions have failed to

implement meaningful accountability or access to justice for the right to housing.90

63. Under the “third pillar” of the United Nations Guiding Principles on Business and

Human Rights – the responsibility to ensure access to effective remedies – it is proposed

that effective remedies be put in place for human rights violations through a combination of

judicial and non-judicial mechanisms, all of which must comply with standards of

independence, fairness, transparency and legitimacy.91 Stakeholders should be able to raise

concerns related to accountability to human rights and “remediation of adverse human

rights impacts”. Mechanisms must be developed collaboratively and must be trusted by

stakeholder groups and must be procedurally fair, provide adequate assistance to enable full

participation, and include clear time frames and monitoring of remedies. They must ensure

access to information, independent advice and expertise, and facilitate engagement and

dialogue. Most importantly, they must ensure that outcomes and remedies accord with the

right to housing and other internationally recognized human rights.

64. If such mechanisms are properly focused on ensuring compliance with the right to

housing, they may play an important role in ensuring access to justice in the context of

private housing development and management. However, it is important that human rights

obligations of States not be confused with corporate responsibility: it is the obligation of

States to regulate private actors and to ensure access to justice when the actions of private

actors result in a violation of the right to housing. Compliance with the right to housing

cannot rely on voluntary commitments or mediated settlements. Where necessary, States

should impose obligations on private actors to facilitate access to justice. Just as housing

developers may be required to adopt measures to protect the environment or to

accommodate disability, they may also be required, through legislation, to provide for

independent adjudication of human rights complaints, legal assistance for residents, and

independent monitoring and oversight of implementation of remedies.

87 See Aoife Nolan, “Holding non-state actors to account for constitutional economic and social rights

violations: experiences and lessons from South Africa and Ireland”, International Journal of

Constitutional Law, vol. 12, Issue 1 (January 2014), pp. 61–93.

88 See https://www.eldiario.es/madrid/Ana-Botella-Gobierno-condenados-millones-venta-vivienda-

fondos-buitre_0_851114898.html.

89 See Compliance Advisor Ombudsman, Belarus/Strominvest II-01/Minsk, case filed on 24 March 2016;

see also South Africa/Lonmin-02/Marikana, case filed on 16 June 2015; and Guinea/Nedbank-

01/Kintinian, case filed on 27 April 2017.

90 A/73/310/Rev.1, paras. 101–102.

91 Principles 25–31.

C. Informal and customary justice

65. As housing issues are usually resolved outside of courts, often at the local level, it is

important to ensure that informal and customary justice systems also provide access to

justice for the right to housing. Such systems may include customary or religious courts,

local or administrative authorities, community-based paralegals, tenants’ unions or

collaborative dispute resolution procedures. Compared to formal courts, informal justice

systems can be culturally and socially less threatening, more timely and more cost-effective,

and they can enjoy greater social legitimacy and trust among rights claimants. They can

also be more participatory, with stakeholder representation on adjudicative bodies, and can

integrate rights-empowerment strategies and human rights education at the local level. They

often have distinctive competencies to address local housing issues such as informal

tenancies and land use. When properly guided by human rights norms, with particular

attention to gender equality, informal justice systems are capable of “delivering accessible

justice to individuals and communities where the formal justice system does not have the

capacity or geographical reach”.92

66. In many states in the Global South, customary tenure covers the vast majority of

land transactions. In such circumstances, States should integrate informal processes through

which housing issues are resolved at the community level with formal justice systems that

are capable of ensuring compliance with international or constitutional human rights law.

This combined approach is likely to achieve better results in terms of human rights.

67. The Special Rapporteur, during her missions, has experienced first-hand the benefits

of informal justice systems for the right to housing. In the Republic of Korea, for example,

the municipal government of Seoul has established a committee against human rights

violations to enable communities and individuals to raise human rights complaints before a

diverse panel of experts that includes city officials, human rights lawyers, people with lived

experience and social workers. The committee investigates and makes recommendations on

human rights violations at the city level. It works in tandem with a city ombudsperson who,

once a violation has been established, can make an official complaint and trigger formal

proceedings.93

68. In Spain, a country with a staggering number of evictions each month due to

mortgage and rental arrears, a grass-roots movement called Plataforma de Afectados por la

Hipoteca (PAH) works with tenants to delay evictions and ensure access to alternative

housing. Since 2013, the organization has stopped at least 4,065 evictions; almost all of the

residents have been rehoused.94

VIII. Conclusion and the way forward

69. Access to justice for the right to housing is inseparable from the right itself. All

States, therefore, must have an answer to the question so often put to the Special

Rapporteur: “Where can I go to claim the right to housing?”

70. 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.

71. Rampant evictions of those living in informal settlements, disregard of court

orders and the rule of law and criminalization of those who are homeless suggest one

92 Informal Justices Systems: Charting a Course for Human-Rights Based Engagement (New York,

United Nations Development Programme, United Nations Children’s Fund and UN-Women), p. 11.

93 Introduction to the human rights governance handbook issued by the municipality of Seoul, given to

the Special Rapporteur during her visit.

94 See https://afectadosporlahipoteca.com/asesoria-y-recursos/asesoria-colectiva/.

thing: those whose right to housing has been violated have not been recognized and

treated as equal members of the human family. As long as States deny access to justice

for the right to housing, they perpetuate a hierarchy of human rights, exposing the

discriminatory position that some rights (and thus some rights holders) matter more

than others.

72. Access to justice is not about demanding a State-provided house. It is about

recognizing the inherent dignity of, and equal and inalienable rights for, those whose

right to housing has been violated. It is about providing a human rights space in which

the claim to a right to live in dignity and security is clearly heard, valued and

responded to.

73. There is growing worldwide support for creating spaces where the right to

housing can be claimed. Social movements, city mayors, and an increasing number of

Governments, human rights institutions and courts are recommitting to the right to

housing and to empowering rights holders to claim their rights and hold all levels of

government, transnational corporations and other financial actors accountable.

74. 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.

75. 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.

76. Achieving access to justice for the right to housing remains a work in progress.

It is built from the ground up. It begins with individuals, groups and communities

recognizing their circumstances as a violation of the right to housing and articulating

a human rights claim. Claimants must be supported by their communities, legal

advocates, human rights organizations and others to advance the claim. They must be

provided a space in which the claim can be heard and adjudicated. And finally, they

must be assured of effective remedies, fully implemented.