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Rights Archives: Right to adequate housing

South Fork Band Council and others v. United States Department of the Interior

Year: 2009 (Date of Decision: 3 December, 2009)

Forum, Country: Court of Appeals, United States of America

Standards, Rights: Right to free exercise of religion; Rights to water and sanitation; Right to adequate housing; Right to health; Indigenous people

Summary Background: The plaintiff appellants comprised the South Fork Band Council of Western Shoshone Nevada and other tribes and organizations (“the Tribes”). The Tribes sought an emergency injunction regarding the approval of a gold mining project by the US Department of Interior and its Bureau of Land Management (“BLM”) located in a sacred site. The project involved ten years of mining and up to three years of ore processing, and would allegedly create a “substantial burden to the exercise of religion.” Domestic law prohibits governmental entities from imposing such burdens unless the government can show that the practice is in furtherance of a “compelling governmental interest” and is the “least restrictive means” of furthering that interest (US Code §2000bb-1). The injunction was denied by the Federal District Court. The appellants alleged violations of the Federal Land Policy Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) and sought an injunction to be granted on appeal.

Holding: To be granted injunctive relief, the Court required that the appellants demonstrate they were likely to “suffer irreparable harm” if a preliminary injunction were denied, that the balance of equities tipped in their favour and that an injunction was in the public interest [para. 14]. In addition, it was necessary to show the BLM’s actions were either arbitrary and capricious or contrary to law [p. 15828].

While the Court declined to find that the appellants had demonstrated the likelihood of success for their FLPMA claims given the in-depth Environmental Impact Statement undertaken by the respondents in consultation with the Tribes and public over a two-year period, it did grant an injunction regarding the NEPA actions to allow a study that adequately considered the environmental impact of “millions of tons of refractory ore,” the adverse impact on local springs and streams, and the extent of fine particulate emissions [pp. 15828 and 15831-15840].

Additional Comments: This case is relevant to the broader framework of issues raised by international human rights bodies condemning the failure of US federal policy to protect Indian land rights and environmental law (see, for instance, the western Shoshone petition to the UN Committee on the Elimination of Racial Discrimination (2006) and the Inter-American Commission on Human Rights (2002).)

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Joseph v. City of Johannesburg, Case CCT 43/09

Year: 2009 (Date of Decision: 9 October, 2009)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Procedural fairness; Human dignity; Right to adequate housing

Summary Background: In this case, the applicants sought a declaration regarding their entitlement to notice before municipal agencies terminated their power supply. Although the applicants who were tenants had regularly paid the owner of their building their electricity bills as part of the rent, the owner had run up arrears, due to which the City of Johannesburg’s electricity service provider, City Power, discontinued supply, giving notice to the owner, but not the tenants with whom City Power has no contractual relationship. The applicants lived without electricity for around one year, as they could not afford to move.

Holding: In this case, violation of human dignity was argued as the termination of electricity supply constituted a retrogressive measure violating the negative obligation to respect the right to adequate housing protected under the Constitution; however the case was primarily decided on the basis of the procedural fairness principle [paras. 2 and 32].

The Court held that electricity is one of the most important basic municipal services and that municipalities have constitutional and statutory obligations to provide electricity to the residents in their area as a matter of public duty [paras. 34-40]. The Court thus affirmed that the applicants were entitled to receive this service as a public law right [para. 40].

The Court further held that the government was required to act in a manner that is responsive, respectful and in conformity with procedural fairness when fulfilling its constitutional and statutory obligations [para. 46]. The Court outlined the importance of procedural fairness in the following terms: “Procedural fairness … is concerned with giving people an opportunity to participate in dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy” [para. 42]. Accordingly, the Court decided that in depriving the tenants of a service they were receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right [para. 47]. The Court found that procedural fairness in this case included adequate notice (containing all relevant information) at least 14 days before disconnection [para. 61]. Implied in the affording of such notice is that users of the municipal service may approach the City, within the notice period, to challenge the proposed termination or to tender arrangements to pay off arrears [para. 63]. The order also declared that, to the extent the electricity by-laws permit the termination of electricity supply “without notice”, these by-laws are unconstitutional.

In addition the discontinuation of electricity supply to the applicant’s residence was found to be unlawful and the City was ordered to reconnect the building immediately [para. 78].

Additional Comments: This case addresses the State’s duty to respect ESC rights.

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Residents of the Joe Slovo Community, Western Cape v. Thubelisha Homes and others, 2010 (3) SA 454 (CC)

Year: 2009 (Date of Decision: 10 June, 2009)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Right to adequate housing; Right to an adequate standard of living

Summary Background: Around 20,000 occupiers of the Joe Slovo informal settlement in Cape Town appealed an order for their eviction. The order was issued by the High Court on the basis of a petition from government agencies and a housing company developing low-income housing at the site. The housing company pledged temporary accommodation, but did not guarantee any permanent housing to the occupiers.

Holding: The Constitutional Court analyzed the evictions in question against the reasonableness standard, referenced precedents in this area of review, such as the Grootboom case, and held that while there might have been more meaningful engagement with the residents who were established as “unlawful occupiers”, overall the eviction action was reasonable [paras. 6, and 115-118]. Given that the eviction was sought for the purpose of developing low cost housing with safe and healthy conditions as a step to progressively realizing the right of housing for those living in extreme conditions of poverty, homelessness or intolerable housing, as well as that the respondents had since assented to a significant allocation of the new development for the present occupiers to account for their dire housing needs, the judgement considered that the government had acted in a reasonable manner in seeking to promote the human right to housing [paras. 138, 139, 172-175, 228 and 234]. However, as regards the eviction, the court order stipulated, based on a suggestion by the respondents, that adequate alternative temporary accommodation meeting court-specified standards had to be provided [para. 10] and the occupiers’ expectation that 70 percent of the houses in the new development would be allocated to them had to be fulfilled if they qualified for the housing [paras. 5 and 400].

The Court further mandated that there must be individual engagement with householders before their move, including on the timetable for the move and other issues, for instance, assistance with moving their possessions, and the provision of transport facilities to schools, health facilities and places of work. Additionally, the Court specified that the accommodation had to be ensured at the point of eviction [paras. 5 and 400].

Additional Comments: In this case, the standard of reasonableness review is difficult to evaluate, as the emphasis of the Court is on achieving consensus between the two parties, rather than scrutinizing the State policy for compliance with its housing right obligations under the Constitution. It becomes clear when looking at the various case law invoking the reasonableness test as a standard of review, that it “allows the court considerable freedom when assessing the constitutionality of State action”. (Kirsty McLean, Constitutional Deference, Courts and Socio-economic Rights in South Africa, p. 173). The emphasis on the need to comply with certain procedural protections before any eviction can take place (and the reference in this context to General Comment 7 of the CESCR) [paras. 236 and 237] highlights the State’s duty to respect the right to housing while the focus of the State’s long term plan to progressively realize the human right to housing elevates the State’s duty to fulfil the right.

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Case of the Sawhoyamaxa Indigenous Community

Year: 2006 (Date of Decision: 29 March, 2006)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Indigenous people

Summary Background: The Sawhoyamaxa Community has historically lived in the lands of the Paraguayan Chaco, which since the 1930s have been transferred to private owners and gradually divided. This increased the restrictions for the indigenous population to access their traditional lands, thus bringing about significant changes in the Community’s subsistence activities and finally caused their displacement.

Holding: The Court found various violations of the ACHR, such as of article 8 and 25 (right to a fair trial and judicial protection), article 21 (right to property), article 4(1) (right to life), and article 3 (right to recognition as a Person before the Law), all of them in relation to article 1(1) (the obligation to respect rights) [paras. 112, 144, 178 and 194]. The Court ordered the Paraguayan government to adopt measures for returning the ancestral lands to the Community within three years [para. 215], to provide basic goods and services and implement an emergency communication system until they recovered their land [para. 230]. Moreover, a development fund for the Community in the amount of one million US dollars had to be created [para. 224], compensation in the amount of 20,000 US dollars was to be paid to the families of the 17 persons who died as the result of the forced displacement of the Community [para. 226] as well as for non-pecuniary damages, costs and expenses [para. 239].

Additional Comments: However, in the years following the judgement no progress was made toward the implementation of the judgements and the communities decided to unite their efforts and to ask Amnesty International to help them set up an international campaign designed to put pressure on the government.

The fact that the two communities were in the exact situation and undertook joint actions may have been an important factor in the enforcement process.

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Case of the Yakye Axa Indigenous Community

Year: 2005 (Date of Decision: 17 June, 2005)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Right to health; Right to education; Indigenous people

Summary Background: The Yakye Axa community, a Paraguayan indigenous community, has traditionally lived in the lands of the Paraguayan Chaco, large parts of which were sold through the London stock exchange at the end of the 19th century. In 1979, the Anglican Church began a comprehensive development program and fostered resettlement of the indigenous groups to Estancia El Estribo, where the natural environment and resources are different from those of the place of origin of these indigenous groups. While they stayed there, the community lacked adequate access to food and water, health services and education. Sixteen persons died due to these living conditions.

Holding: The Court found that Paraguay had violated various provisions of the American Convention on Human Rights (ACHR) in relation to article 1(1) (the obligation to respect rights), such as the right to a fair trial and judicial protection (article 8 and 25) [para. 119], the right to property (article 21) [para. 156] and the right to life (article 4) [para. 176], since it failed to adopt the necessary positive measures required to ensure the community lived under dignified conditions during the period they had to do without their land [para. 168-169]. The Court considered that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land and concluded that the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups that require priority protection were at stake [para. 162]. The Court ordered the State to submit the traditional land to the community at no cost [para. 217], to establish a fund for the purchase of land for the community [para. 218], and to provide basic goods and services necessary for the community to survive as long as the Community remained landless [para. 221].

Moreover, the State was ordered to create a community development fund and a community program for the supply of drinking water and sanitary infrastructure. In addition, the Court ordered the State to allocate 950,000 US dollars to a community development program consisting of the implementation of education, housing, agricultural and health programs [para. 205]. Pecuniary damage had to be compensated and costs and expenses reimbursed within one year [para. 233].

Additional Comments: The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified [para. 241].

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Park West Management Corp. v. Mitchell, 391 N.E.2d 1288 (N.Y. 1978)

Year: 1978 (Date of Decision: 2 May, 1978)

Forum, Country: Appellate Division of the Supreme Court of New York, United States of America

Standards, Rights: Reasonableness; Right to adequate housing; Right to health

SummaryBackground: This case involves the property law right of the “implied warranty of habitability”, which guarantees a tenant a liveable home environment. The landlord is responsible for the upkeep and maintenance of a property, and cannot allow for conditions that would affect the health and safety of the tenant. In this case, tenants of this building withheld their rent to protest the interruption of extensive garbage removal and janitorial services which affected the health and safety of the tenants. The janitorial staff had gone on strike, causing many services and amenities to stop. This caused the building to turn into an environment where rats, roaches and other vermin flourished. Routine maintenance was not completed and trash incinerators were wired shut.

Holding: The Court determined that anything detrimental to life, health, and safety is considered a breach of the warranty of habitability and violates a tenant’s rights as guaranteed by the housing code. The ruling described a residential lease as a sale of shelter and needs to encompass services, which render the premises suitable for which they are leased. While the premises need not be perfect, they must not perpetuate conditions that can adversely affect the tenant’s health and safety [p. 1294-95]. Further, the overarching test for determining whether a property is liveable is based on a reasonable person standard. If a reasonable person would not find a place habitable, then the implied warranty of habitability has been breached [p. 1295].

This would also be a violation of the Right to Housing.

Additional Comments: Damages should be awarded through a balancing test in which the fact finder must weight the severity of the violation, the duration of the conditions, and the steps taken by the landlord to remedy the situation. In this case, the judge awarded 10 per cent deduction on the rent due to the severity of the conditions and the meagre attempts by the landlord to remedy the situation [p. 1295].

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