Researching the Right to Housing

By S M Atia Naznin

S M Atia Naznin is a sessional Lecturer at Macquarie Law School, Macquarie University, Australia. Her qualifications include a Ph.D. in Law from Macquarie University, a master’s in human Rights and Democratization from the University of Sydney, and LLM and LLB (Honours) degrees from the University of Dhaka. She was a faculty of law at Australian Catholic University, Australia; BRAC University; and Eastern University in Bangladesh. She worked as a Research Fellow and National Consultant at several international NGOs, including UNDP, CIDA, and Article 19. She was also a visiting Research Fellow at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (University of Johannesburg, South Africa). Her research expertise lies in the areas of international law, human rights law, and comparative constitutional law. Her most recent publications include two chapters respectively published in books entitled “Constitutional Law of Bangladesh: Progression and Transformation at its 50th Anniversary” (Springer 2023) and “International Handbook of Disaster Research” (Springer Nature 2022).

Published January/February 2024

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1. Introduction

The right to housing constitutes an integral component of human dignity vis-à-vis an adequate standard of life and living. It is crucial to the realization of other rights, including the right to life, the right to privacy, the right to health, and the right to development. Hence, the right to housing is recognized as a fundamental human right.

2. Components of the Right to Housing

Housing today means more than a roof over one’s head. Article 25 of the Universal Declaration of Human Rights (UDHR) and Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) contemplate housing as adequate housing that requires living a standard life with dignity, peace, and security and enables a person to utilize and expand his capabilities. In order to meet this standard, as the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment No. 4 postulates, the contents of adequacy must include the presence of legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location, and cultural adequacy. Following discussion provides a brief analysis of these components:

  • Legal security of tenure: Irrespective of the nature of tenure, all persons are entitled to a secure tenure to ensure legal protection from forced evictions, harassment, or other threats.
  • Availability of services, materials, facilities, and infrastructure: An adequate housing facility must ensure health, security, comfort, and nutrition. Hence, everyone should have sustainable access to natural and common resources, pure drinking water, energy for cooking, heating and lighting, sanitation, washing facilities, storage space, refuse disposal, site drainage and emergency services.
  • Affordability: Personal or household costs associated with housing should not exceed the income level and threaten or compromise the enjoyment of other basic needs.
  • Habitability: Adequate housing must provide the inhabitants with sufficient space and protect them from adverse weather conditions as well as other threats to health, structural hazards, and disease vectors.
  • Accessibility: Adequacy implies accessibility. Hence laws and policies on housing should address the special needs of vulnerable and marginalized groups, such as children, elderly people, physically disabled, and victims of natural disasters.
  • Location: Adequate housing must ensure access to employment opportunities, medical services, schools, childcare centers, and other social facilities. Additionally, households should situate within a reasonable distance from polluted zones to avoid any risk of health hazards.
  • Cultural adequacy: The construction materials, design, and construction of households should have a proper balance with the cultural identity and lifestyle of the residents.

3. Forced Eviction

According to General Comment No. 7 of the CESCR, forced eviction is a ‘permanent or temporary removal against the will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.’ In brief, forced eviction is a form of arbitrary displacement.

Forced eviction manifestly violates the right to adequate housing, which is prima facie a socio-economic right. Housing essentially constitutes the foundation for the enjoyment of all the human rights, ranging from the right to food to the right to life. Due to the interdependence and indivisibility of the civil-political and the socio-economic rights, these rights are manifested through the right to adequate housing.[1] For this reason, to realize and protect the right to adequate housing, all states are duty-bound as per their human rights commitment to refrain from forced eviction.[2]

However, there are circumstances when evictions become inevitable. For instance, evictions may occur due to compulsory land acquisition for initiating large-scale development projects or urban renewal or housing renovation programmes. CESCR in General Comment No. 7, while acknowledging these situations, states that even in these cases evictions must not result in the violation of a person’s human rights.[3] The committee, therefore, provides certain standards to identify whether an eviction is forced or not. That means, although eviction is justified in certain circumstances, there exists an explicit prohibition on forced eviction. As per the committee’s standards, two layers of protection that include substantive and procedural must be present at all the three stages (before, during and after) of eviction to avoid any use of force, illegality, or resulting harm. As the substantive level, eviction must not cause discrimination and must comply with the accepted principles of proportionality and reasonableness. Besides, any decision on eviction must be coupled with arrangement for alternative accommodation, compensation, and provision for legal aid to seek judicial redress. By contrast, the procedural protection includes opportunity for genuine consultation, service of adequate and reasonable notice prior to eviction, access to information on the proposed eviction and the purpose for which the land and/or housing will be used, presence of authorized and identifiable persons during eviction, and prohibition on eviction during bad weather or at night.[4]

A wider perspective suggests that forced eviction intensifies ‘inequality, social conflict, segregation and ghettoization’ and does irreparable harm to the poorest of the poor.[5] As a result, in certain circumstances when eviction becomes inevitable, even with the presence of a court order, it would still be considered forced eviction for not meeting up the international human rights standards on fair eviction and related state obligations.

4. State Obligations Towards the Right to Housing

The obligations to realize the right to housing can be categorized as specific and general obligations. While the ICESCR enshrines the specific obligations, the general obligations are found broadly in the international human rights framework.

4.1. Specific Obligations

Article 2 of the ICESCR outlines the fundamental duty of the state parties to realize the right to housing. However, considering the economic repercussions and the capacity of each individual state, the covenant subjects the duty to ‘progressive realization’ and ‘availability of resources.’ These limitations, however, are misinterpreted by state agencies, either by poor or resistant, to justify their continuous negation of the right. The CESCR, therefore, clarifies the intent of the covenant in General Comment No. 3. It states that considering full realization of social rights as the goal, states should take immediate steps to progressively realize the right. Such steps, for instance, include refraining from taking any discriminatory or retrogressive measure that deprives an individual of enjoying his rights. In addition, the committee concludes that resource constraint does not limit the duty of a state party to realize the minimum core content of a right. For example, security of tenure constitutes the basic content of the right to adequate housing. Consequently, all States bear an immediate obligation to prevent any form of forced eviction that infringes the security of tenure.[6]

4.2. General Obligations

Like other socio-economic rights, enforcement of the right to housing refers to a tripartite typology of state obligations to (i) respect, (ii) protect, and (iii) fulfill this right. These obligations are further categorized as a state’s duty to avoid depriving, duty to protect from deprivation, and duty to assist the deprived for the effective realization of the right.[7]

Duty to Respect: The obligation to respect requires the state to refrain from doing any act that violates a right either directly or indirectly.[8] The duty to respect denotes a negative obligation as it typically requires the state to do nothing or to do no harm in the sense that no resource distribution is needed.[9] It ‘[r]equires the state and others to refrain from interfering with people’s existing enjoyment of rights, and when such interference is unavoidable, to take steps to mitigate the impact, and to refrain from impairing access to those rights.’[10]

Duty to Protect: The duty to protect requires the state to take all the necessary measures for preventing the violation of a right by third parties that may be individuals, groups, business enterprises, or any other non-state actors.[11] The duty to protect, although mostly positive in nature, may also impose negative obligation depending on the circumstances if the state fails to a) respect the right, b) prevent the encroachment into the enjoyment of the right from a third party, or c) respect the existing protection to the right for not taking sufficient measures to avoid violation.[12]

Duty to Fulfill: Duty to fulfill obliges the state to ensure that appropriate legislative, administrative, budgetary, judicial, and other measures are in place towards the full realization of a right.[13] Consequently, any person either evicted, forcibly evicted, or threatened to be evicted must have recourse to legal institutions and claim redress to secure the access to his home. However, regarding the state’s duty to fulfill right to housing, availability of resources is certainly an issue. But the negative obligation associated with this right requires the state and other duty holders not to deprive anyone of his right to housing either through forced eviction or other regressive measures. In this context, by analysing article 26.1 of the South African Constitution that provides a justiciable right to housing, the SACC rightly observed that ‘[t]here is at the very least, a negative obligation placed upon the state and all other entities and persons to desist from preventing or impairing the right to access to adequate housing.’[14]

5. Justiciability of the Right to Housing

The concept ‘justiciability’ refers to the capacity of the court to enforce the violation of a right due to non-performance of state obligations.[15] Hence, infringement of a justiciable right is the precondition of its adjudication.[16] In other words, to be enforceable a right must contain some justiciable or enforceable elements. Traditionalists argue that domestically a constitution determines the legal status of a right. In the absence of constitutional recognition, courts are unable to enforce an alleged violation.[17] However, it has been increasingly observed that, despite having a conservative constitution, a rights-sensitive, change-minded, as well as a creative judiciary can expand the meaning of justiciability and enforce the non-justiciable principle of the housing.[18] For instance, in the Olga Tellis case, the Indian Supreme Court observed the violation of the directive principle of housing as a denial of the enforceable right to life. The government, therefore, should not forcibly evict a person and arbitrarily deprive him of his access to housing.[19] Thus, the court devised an indirect means of enforcement to adjudicate the violation of the non-justiciable housing provision by resorting to the justiciable fundamental right to life. In recent years, the increase of domestic case law on the violations of the constitutional provision on housing has reflected a growing global consensus towards its justiciability.

Critics of judicial enforcement of the right to housing also contend that since realization of social rights has immense repercussion on economic redistribution as well as complex policy choices, it is the political organs, not the courts, that should exercise the legitimate authority to deal with these cases. Any deviation from this principle results in an infringement of the democratic legitimacy of the court.[20] To redress violations, they negate the availability of judicial remedies and argue for alternative remedies such as administrative actions, legislative responses, advocacy campaigns, or interventions by the human rights commissions.[21] However, the CESCR in its General Comment No. 9, para 9 conceived the need of judicial remedies to enforce an immediate obligation, such as the duty not to discriminate or, when other remedies remain ineffective, to redress the wrong. Thus, the jurisprudence of the Committee has contributed to clarify the justiciable content of the right to housing.

6. International Instruments on the Right to Housing

Multiple international human rights instruments have recognized the right to housing as one of the core fundamental human rights and provide measures for its protection. The following discussion gives a brief account of this aspect:

The Universal Declaration of Human Rights (UDHR), 1948: The UDHR is the first international human rights instrument to recognize the right to housing. Article 25(1) of the declaration considers the right to housing as a human right that is either equal or even more essential than other human rights like food, clothing, or medical care to ensure an adequate standard of living.

International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966: The ICESCR provides the most significant recognition of the right to housing. As per article 11(1) of the covenant, all state parties shall recognize an individual’s right to housing and take steps to ensure the realization of the right alongside other human rights to secure an adequate standard of life. The wordings may seem to be a repetition of the UDHR provision on housing. However, unlike article 25(1) of the UDHR which only states housing as a ‘right,’ ICESCR imposes a duty upon the state parties to recognize that right and act accordingly to further their commitment.

The International Covenant on Civil and Political Rights (ICCPR), 1966: The ICCPR guarantees the right to life (article 6), the right not be subjected to torture, cruel, inhuman and degrading treatment or punishment (article 7), and the right to be protected from arbitrary or unlawful interference with one’s privacy, family, and home (article 17). Although there is no explicit reference to the right to housing, due to the indivisibility of human rights, these provisions are crucial to protect the former.

Basic Principles and Guidelines on Development-based Evictions and Displacements, 2007: The Basic Principles and Guidelines reaffirm the right to housing as a human right that constitute a vital prerequisite of an adequate standard of living. According to the document, the content of the right includes a prohibition against forced eviction that arbitrarily or unlawfully interferes with an individual’s privacy, family, home, or his legal security of tenure. However, the principles and guidelines are limited to development-related displacements in rural and urban areas and do not cover forced evictions due to the recovery of land from unlawful tenants, slum clearance, or discriminatory laws and practices.

In addition, several group-specific international human rights treaties guarantee the right to housing. For instance, article 21 of the Convention relating to the Status of Refugees 1951, article 5 of the International Convention on the Elimination of all forms of Racial Discrimination 1965, article 14 of the Convention on the Elimination of All Forms of Discrimination against Women 1979, article 27 of the Convention on the Rights of the Child 1989, and article 43 of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 impose both positive and negative obligations upon the state parties to protect the right to housing of the vulnerable communities such as refugees, women, children, and migrants.

7. Regional Instruments on the Right to Housing

At the regional level, several treaties, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights, incorporate provisions on the civil and political rights, such as the right to life, the right to be protected from arbitrary interference with one’s home, family and privacy, provide indirect protection to the right to housing. By contrast, human rights instruments, such as the European Social Charter, the African Charter of the Rights and Well Being of the Child, and the Protocol of the African Charter of the Human and Peoples’ Rights on the Rights of Women in Africa, explicitly recognize the right to housing.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950: By recognizing housing as a human right, article 8 of the convention guarantees the right to respect for the home of everyone as well as prohibits arbitrary state inference with the enjoyment of this right except under specified circumstances. It states that even in situations when evictions become unavoidable or necessary, the concerned authorities must comply with relevant legal rules, the necessity of societal values, collective safety, and economic welfare.

The European Social Charter, 1961 (as revised in 1996): Article 31 of the charter mandates that for the effective enjoyment of the right to housing, the state parties should promote access to adequate housing, prevent homelessness, and reduce the cost of housing for economically disadvantaged people.

The Charter of the Organization of American States (OAS Charter), 1948: Article 34 (k) of the charter states that the member states of the charter have the basic goal to accomplish adequate housing for all sectors of society.

The American Convention on Human Rights, 1969: The convention does not recognize the right to housing per se. It rather offers an indirect recognition to the right by guaranteeing the right of an individual to be free from arbitrary non-interference with his private life, family, home, or correspondence as well as unlawful attacks on his honour and reputation (article 11).

The African Charter on Human and Peoples’ Rights, 1990: Numerous provisions of the charter refer to the direct and indirect protection to the right to housing. For instance, it prohibits arbitrary and unlawful interference with the enjoyment of the right to property (article 14), the right to the highest attainable standard of mental and physical health (article 16), and the protection accorded to the family (article 18.1).

The African Charter of the Rights and Well Being of the Child, 1990: The charter imposes a positive obligation upon the state parties to take all appropriate measures as per their capacity and means to assist parents and other responsible persons for the child to ensure adequate housing facilities (article 20).

The Protocol of the African Charter of the Human and Peoples’ Rights on the Rights of Women in Africa, 2003: The protocol guarantees the right to equal access to housing to women and obliges the state parties to ensure the enjoyment of the right (article 16).

8. The Right to Housing in National Constitutions

Numerous national constitutions throughout the world enshrine the right to housing under two levels. Depending on diverse socio-economic and political ideologies, the constitutional provisions either recognize housing as a justiciable, meaning legally binding right, or a non-justiciable directive or fundamental principle of state policy.

8.1. Housing as a Justiciable Right

The constitutions of Armenia, Belgium, Burkina Faso, Congo, Ecuador, Equatorial Guinea, Guyana, Haiti, Honduras, Maldives, Mali, Mexico, Nicaragua, Paraguay, Russia, Sao Tome and Principe, Seychelles, South Africa, Spain, Uruguay, Venezuela, and Viet Nam provide explicit recognition to the right to housing. States functioning under these constitutions bear a legal obligation to protect and ensure the enjoyment of the right. Due to the economic implication in enforcing the right to housing, the positive duty of the state is subject to progressive realization and availability of resources (See, for example, article 28.2 of the Constitution of South Africa 1996). However, following a breach of this obligation or at the very least, due to the violation of a negative obligation as in the case of forced eviction, a victim can claim effective redress from the court (See the decision of the ‘Grootboom’ case).

8.2. Housing as a Non-Justiciable Principle

Several states, for instance, Argentina, Bahrain, Bangladesh, Colombia, Costa Rica, Dominican Republic, El Salvador, Finland, Greece, Guatemala, India, Iran, Italy, Nepal, Netherlands, Nigeria, Pakistan, Panama, Peru, Philippines, Poland, Republic of Korea, Slovenia, Sri Lanka, Suriname, Switzerland and Turkey, constitutionalize housing as a directive or fundamental principle. In these countries, the government considers the realization of the provision of housing as a mere political commitment rather than a legal duty. That means, these constitutions do not entitle a victim to judicially enforce its infringement. For example, the Constitution of Bangladesh 1972 (the 1972 Bangladesh Constitution, reinstated in 1986 and revised in 2014 is also available on Constitute Project) states that the provision of housing which constitutes a basic necessity as well as a principle shall not be justiciable (article 8.2).

9. International Organizations on the Right to Housing

Center for Economic and Social Rights strives to advancing global social justice through the promotion of economic and social rights including the right to housing. Through innovative research firmly grounded in the lived experience of diverse communities, they generate compelling evidence to elucidate the existing economic structure that undermine people’s right. To propel this transformation, they foster alliances and advocate for policy reform to sustain the changes.

Office of the High Commissioner for Human Rights (OHCHR): OHCHR represents the commitment of the United Nations to protect and promote human dignity. The office realizes this aim by mainstreaming rights, building partnerships, setting standards, and monitoring and ensuring implementation. The right to adequate housing constitutes an important area of its work.

The Committee on Economic, Social and Cultural Rights (CESCR): The committee monitors the implementation of state obligations relating to the right to housing alongside other socio-economic rights as guaranteed by the ICESCR. It puts forth ‘general comments’ and ‘concluding observations’ to interpret the content of the right and the extent of state obligations.

The Commission on Sustainable Development (CSD) monitors the progress in implementing the commitments of Earth Summit, Agenda 21, Rio Declaration, and the Johannesburg Plan of Action. The agendas of the commission largely cover the aspects of the sustainable human settlement.

United Nations Human Settlement Programme (UN-Habitat): UN-Habitat is a United Nations Programme that has been working since 1978 on promoting sustainable urban settlement. Its key working areas include legislation, land, governance, safety, housing, and slum upgrading.

Habitat International Coalition (HIC): HIC is a non-profit global network of civil society that works on several aspects of human habitat including housing rights. The organization emphasizes on strengthening the network, supporting communities, and influencing public politics to carry out its strategic objectives.

Habitat for Humanity: Habitat for Humanity is a US-based organization that focuses on ensuring a decent and affordable housing for everyone. As per this mandate, it builds new homes, renovates existing community houses, and provides advocacy support to raise awareness for improving housing conditions around 70 countries.

10. Regional Organizations on the Right to Housing

Africa: The African Court of Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights are primarily responsible for observing the implementation by the state parties of the human rights obligations, including the housing rights obligations contained in the African Charter on Human and Peoples’ Rights and other human right instruments ratified by the member states.

America: The Inter-American Court of Human Rights and the Inter-American Commission of Human Rights monitor the observance of the states’ human rights obligations in the Americas. These organizations play a crucial role in protecting the right to housing as enshrined in the American Convention on Human Rights and the Charter of the Organization of American States (OAS Charter).

Asia: Unlike other regions, Asia does not have a centralized mechanism to protect human rights vis-à-vis the right to housing. In recent years, Asian Coalition for Housing Rights (ACHR) has gained prominence in housing rights. It is a Thailand-based regional network of grassroots community organizations that work on land tenure security, housing right, and eviction in urban areas of Asian countries.

Europe: The European Court of Human Rights is the judicial body to decide upon the violations by state parties of their obligations relating to housing rights. In addition, under the auspices of the Council of Europe, the European Committee of Social Rights monitors the implementation of the European Social Charter. To realize this agenda, it operates through two complementary mechanisms: first, collective complaints procedure and second, national reporting systems. Its decision on several aspects of housing rights influences the domestic laws and judicial decision of the state parties to the charter. They also publish their reports and decisions.

11. Domestic Organizations on the Right to Housing

Below is a list of some prominent organizations that work on the right to housing either exclusively or alongside other aspects of rights at the national level:

12. International and Regional Judicial Decisions on the Right to Housing

Ben Djazia and Belili case, 2017: In this case, an individual complaint was lodged to the Committee on Economic, Social and Cultural Rights (CESCR). Alleging eviction induced violations of the right to housing by the Spanish government. CESCR observed that eviction from rental accommodations may be legal and necessary; however, it should not lead to homelessness. Hence, the authorities are under an obligation to provide alternative accommodation to the evictees. López Albán, 2018 and Pedro, 2018: In both of these cases, prompted by individual complaints, the CESCR once more addressed the issue of evictions from rental homes. Building upon the reasonings in the Ben Djazia case, the committee observed that the alleged evictions despite the causes of eviction remain justiciable. States are still required to implement reasonable and proportionate measures and provide suitable rehabilitation.

Maria Mejia v Guatemala, 1996: In Maria Mejia v Guatemala, the Inter-American Court of Human Rights held that forcible removal of a group of people from their homes without any service of notice and any measure for rehabilitation violated the right to freedom of movement and the right to choose one’s residence as guaranteed under article 22(1) of the Inter-American Convention on Human Rights.

Ogoni Case (The Social and Economic Rights Actions Centre and the Centre for Economic and Social Rights v Nigeria), 2002: The Ogoni Case arose as a result of the state as well as non-state led forced demolition of the households of Ogoni community who lived in the Niger Delta region of Nigeria. The African Commission on Human and Peoples’ Rights declared the eviction as arbitrary and a gross violation of the right to land and housing as set forth in the African Charter for Human and People’s Rights.

Endorois Case (Centre for Minority Rights Development, Kenya and Minority Groups International on behalf of Endorois Welfare Council v Kenya), 2003: In the Endorois case, the African Commission on Human and Peoples’ Rights observed that by evicting the Endorois, an indigenous community from their ancestral homes, the Kenyan government violated their rights to religious practice, property, culture, free disposition of natural resources, and over and above their right to development. By depriving them of enjoying these fundamental human rights, alleged eviction resulted in discrimination. The commission observed the process of eviction also as discriminatory since there was no genuine consultation with the affected community.

Connors v The United Kingdom, 2004: The European Court of Human Rights in the case Connors v The United Kingdom held that forcible removal of a person and his family from their usual abode by the local authority without maintaining adequate procedural safeguards could not be justified by ‘pressing social needs.’ It was rather extremely disproportionate to public interests and amounted to a gross violation of the right to housing under article 8 of the European Convention on Human Rights and Fundamental Freedoms.

13. Domestic Judicial Decisions on the Right to Housing

Decision T-088, 2021: In this ruling, the Colombian Constitutional Court reviewed three cases of homelessness that previously had been adjudicated in lower courts. The plaintiffs, who were experiencing homelessness, alleged that they were denied access to a temporary shelter and medical service intended to avoid the spread of COVID-19. The court concluded that given the vulnerability of homeless individuals, the government bears a special duty to implement measures that address their exclusion. Any actions that regress their rights based on the conditions of their living conditions were deemed unjustified, being disproportionate and unreasonable.

Olga Tellis Case, 1985: In Olga Tellis v Bombay Municipal Corporation, the Indian Supreme Court interpreted the constitutional provision of the justiciable right to life to include the non-justiciable principle of housing. The court held that the pavement dwellers threatened of eviction could only be evicted once they were provided with alternative accommodation.

Ahmedabad Municipal Corporation’s Case, 1996: In Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan and Others, the Indian Supreme Court observed that the evicted pavement dwellers were entitled to notice as a procedural protection that emerges from the principle of natural justice. The court also noted that the state has a constitutional obligation to ensure adequate housing facilities particularly for the poor and marginalized people to make their life meaningful.

Ajay Maken and Others v Union of India, 2019: In Ajay Maken’s case, The Delhi High Court ruled that slum dwellers are not considered as illegal occupants without rights. They are entitled to the right to adequate housing which encompasses the access to various aspects that enable them to enjoy the freedom to live in a city. Further, rather than being a mere shelter, the right to housing combines a spectrum of rights, including right to livelihood, right to health, right to education, and right to food. Consequently, even in cases when eviction becomes necessary, they should be provided with reasonable notice and appropriate arrangement for rehabilitation.

The Slum Dwellers’ Case (Ain o Salish Kendra v Bangladesh), 1999: In the often cited Slum Dwellers’ case, the High Court Division of the Supreme Court of Bangladesh observed that the constitution directs the state to realize the fundamental rights of its people to life, show respect for human dignity, give equal legal protection, and take appropriate steps for ensuring the basic necessities of life, including housing. This duty is stricter in favour of the vulnerable and marginalised people. Although the violation of the housing provision is not judicially enforceable, it is an integral component of the right to life and livelihood, the protection of which is the fundamental duty of the state. This case alongside the abovementioned Indian cases is significant to show the liberal approach of the courts to enforce the violations of the provisions of housing despite the constitutional bar on its justiciability.

Grootboom Case, 2001: In the watershed judgment of Grootboom, the South African Constitutional Court tested the reasonableness of government action in light of its constitutional and statutory obligations when it had demolished several squatter settlements without providing any alternative accommodation. Relying on the constitutional provision that entitles everyone to have access to adequate housing and to be protected from forcible eviction, the court held that the state must arrange appropriate resettlement measures before initiating an eviction attempt.

Port Elizabeth Municipality Case, 2005: In Baartman and Others v Port Elizabeth Municipality case, the South African Supreme Court of Appeal rejected the eviction order of the government on the ground that when eviction results in encroachment into the security of tenure to deprive the evictee of exercising his housing rights, then it is certainly not ‘just and equitable’ under section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998. The court further states that the Constitution obliges the state to provide adequate resettlement options before conducting evictions.

Schubart Park Residents’ Association v City of Tshwane Metropolitan Municipality and Another, 2012: The popularly known Schubart Park case held that emergency removal of individuals from their residential complex without a court’s order constituted an arbitrary eviction, breaching the constitutional protection of the right to housing. Hence, the court ordered that the evictees be promptly reinstated in their dwellings. Furthermore, the court issued a supervisory and engagement order that underscored the involvement and engagement of the affected individuals in that may affect their lives.

14. Useful Resources

Books

Journals

Book Chapters and Journal Articles

  • Bengtsson Bo, ‘Housing as a social right: implications for welfare state theory’ (2001) 24(4) Scandinavian Political Studies 255.
  • Brian Ray, ‘Evictions, aspiration and avoidance’ (2013) 5 Constitutional Court Review 172.
  • Darcel Bullen, ‘A road to home: the right to housing in Canada and around the world’ (2015) 24 Journal of Law and Social Policy 1.
  • David Landau, ‘The reality of social rights enforcement’ (1997) 53 Harvard International Law Journal 189.
  • Margot Strauss, Sandra Liebenberg, ‘Contested spaces: housing rights and evictions law in post-apartheid South Africa’ (2014) 13(3) Planning Theory 428.
  • M Rezaul Islam, Ndungi wa Mungai, ‘Forced eviction in Bangladesh: a human rights issue’ (2016) 59(4) International Social Work 494.
  • Miloon Kothari, ‘The Human Right to Adequate Housing and Its Development at the United Nations: An NGO protection Role Success Story’ in Bertrand Ramcharan, Rachel Brett, and Ann Marie Clark (eds), The Protection Roles of Human Rights NGOs’ (Brill, Nijhoff, 2022) Murray Wesson, ‘Grootboom and beyond: reassessing the socio-economic rights jurisprudence of the South African Constitutional Court’ (2004) 20 South African Journal on Human Rights 284.
  • Raquel Rolnik, ‘The Human Right to Housing in Post-Disaster Contexts’ in Flavia Zorji Giustiniani, Emanuele Sommario Sommario, Federico Casolari and Giulio Bartolini (eds) Routledge Handbook on Human Rights and Disasters (Routledge, London, 2018).
  • Rebecca J. Barber, ‘Protecting the right to housing in the aftermath of natural disaster: standards in international human rights law’ (2008) 20(3) International Journal of Refugee Law 432.
  • Leigha C. Crout, ‘Forced evictions, homelessness, and destruction: summer “games”? Olympic violations of the right to adequate housing in Rio de Janerio’ (2018) 8(1) Notre Dame Journal of International and Comparative Law 36.
  • Lilian Chenwi, ‘Advancing the right to housing of desperately poor people: City of Johannesburg v Rand Properties’ (2006) 14(1) Human Rights Brief 13.
  • Mark Jordan, ‘Contesting housing inequality: housing rights and social movement’ (2023) Modern Law Review 1.
  • Sandra Fredmen, ‘The right to housing’, Comparative Human Rights Law (Oxford University Press, 2018).
  • Scott Leckie, ‘The UN Committee on Economic, Social and Cultural Rights and the right to adequate housing: towards an appropriate approach’ (1989) 11(4) Human Rights Quarterly 522.
  • Sean Romero, ‘Mass forced evictions and the human right to adequate housing in Zimbabwe’ (2007) 5(2) Northwestern Journal of International Human Rights 275.
  • Sophie L. Stadler and Damian Collins, ‘Assessing Housing First Programs and from a right to housing perspective’ (2023) 38(9) Housing Rights Studies 1719.
  • Stuart Wilson, ‘The Right to adequate housing’ in Jackie Dugard, Bruce Porter, Daniela Ikawa and Lilian Chenwi (eds) Research handbook on economic, social, and cultural Rights as human rights (Edward Elger publishing, 2020).
  • Owen Taylor, Snadrine Loubiere and Pascal Auquier, ‘Homelessness, housing first and the right to housing- confronting right and reality’ (2020) 21(4) Human Rights Review 373.

Websites

  • ESCR-Net has a case law database that contains international, regional and domestic judicial decisions on various aspects of socio-economic rights.
  • South African Legal Information Legal Information Institute (SAFLII) is an online repository that provides information on various aspects of law, human rights and justice of South Africa.
  • Sabinet offers a gateway to access journal articles, books, research reports, newspaper articles, legal information in South African context.
  • UN-Habitat provides updated information on human settlements in urban areas.

[1] UN Committee on Economic, Social and Cultural Rights, General Comment No. 7: The Right to adequate housing (Art. 11.1): Forced Eviction, 16th Session (1997), para 4.

[2] Ibid.

[3] Ibid, para 5.

[4] Ibid, paras 10, 14, 15, 16.

[5] Basic Principles and Guidelines on Development-based Evictions and Displacements (A/HRC/4/18, annex I).

[6] UN Committee on Economic, Social and Cultural Rights, General Comment No. 4, para 8.

[7] Henry Shue, Basic Rights: Subsistence, Assistance and U.S. Foreign Policy (Princeton Unievrsity Press, 1980) 58.

[8] Asbjon Eide, ‘Economic and Social Rights’ in Janusz Symonides (ed), Human Rights: Concepts and Standards (UNESCO Publishing, 2000) 127.

[9] Malcolm Langford, ‘The Justicibility of Social Rights: From Practice to Theory’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge Unievrsity Press, 1st edition ed, 2008) 3, 14.

[10] Danie Brand, ‘Socio-economic Rights and Courts in South Africa: Justiciability on a sliding slide’ in Fons Coomans (ed), (Intersentia, 2006) 212.

[11] ICESCR, General Comment No. 12, para 15; Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (Hart Publishing, 2009) 24.

[12] Governing Body of the Juma Musjid Primary School and Others v Essay N.O. and Others 2011 (8) BCLR 761 (CC).

[13] Supra note 7, 172.

[14] Government of the Republic of South Africa v Grootboom, 2001 (1) SA 46 (CC) para 34.

[15] Craig Scott and Patrick Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141(1) University of Pennsylvania Law Review 1, 17.

[16] Ludovic Langlois-Thérien, ‘The Justiciability of Housing Rights: From Argument to Practice’ (2012) 4(2) Journal of Human Rights Practice 213, 215.

[17] Craig Scott and Patrick Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141(1) University of Pennsylvania Law Review 1, 22.

[18] Matthew C.R. Craven, ‘The Domestic Application of International Covenant on Economic, Social and Cultural Rights’ (1993) XL Netherlands International Law Review, 389.

[19] Ogla Tellis v Bombay Municipal Corporation AIR (1986) SC 180.

[20] Cecile Febre, ‘Constitutionalising Social Rights’ (1998) 6 Journal of Political Philosophy 263, 280; Aryeh Neier, ‘Social and Economic Rights: A Critique’ (2006) 13(2) Human Rights Brief 1.

[21] Henry J. Steiner, Philip Alston, Ryan Goodman, International Human Rights Law in Context: Law, Politics and Morals: Text and Materials (Oxford University Press, 3rd ed, 2008) 313.