COHRE Housing and ESC Rights Law Quarterly Vol4 No.1 2007

housing and esc rights law Centre on housing rights and evictions

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Vol. 4 - No. 1 October 2007

quarterly

With the Housing and ESC Rights Law Quarterly, the COHRE ESC Rights Litigation Programme aims to present advocates and other interested persons with information on national and international legal developments related to housing and ESC rights.

THE LONG AND WINDING ROAD: ESC RIGHTS IN AUSTRALIA

By Spencer Zifcak1 Introduction Any discussion of economic, social and cultural rights in Australia must necessarily begin with the nation’s constitution.2 Adopted in 1901, as the means to bring six former British colonies into one federated nation, the document is showing its age. One clear sign of this is that the Constitution contains nothing resembling a Charter of Rights.3 Of the recognised civil and political rights, only the freedom of religion is protected.4 The only economic or social rights set down are the economic rights to freedom to trade across state borders and to be compensated for the compulsory acquisition of property.5

Nevertheless, despite the absence of constitutional protections, Australia is a party to every major international human rights treaty. It has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), thus signalling

1 2 3 4 5

to the international community its willingness to observe and strengthen such rights.

Speaking generally, Australian Governments of all political hues have been successful in providing the material conditions in

which the majority of Australians may prosper. This has been no mean feat as economic conditions have continued to improve despite downturns elsewhere, most notably during the Asian economic collapse in the 1990s.

Australia’s economic strength, however, hides the fact that there remain significant pockets of poverty and disadvantage. And, not infrequently, these pockets attach to identifiable minorities in the Australian community. It is for these minorities that the advancement of economic, social and cultural (ESC) rights is of the most significance.

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Associate Professor, La Trobe University School of Law, Australia.

Commonwealth of Australia Constitution Act (1900).

See further G. Williams, Human Rights in the Australian Constitution (Oxford: Oxford University Press, 1999).

Ibid, Sec. 116 Ibid Subsections 92 and 51(31).

1 • The long and winding road: ESC rights in Australia

9 • Adjudication of Article 8 ECHR and positive obligations by the Irish High Court

2 • Editorial

6 • The housing rights crisis in Darfur

10 • Vindicating the rights of the San people in the Botswana High Court

7 • Guaranteeing the right to adequate housing of Roma in Bulgaria – a European decision

11 • Round-up of recent decisions in ESC rights cases

12 • Case to watch

This publication has been made possible with the support of the United Nations Housing Rights Programme, www.unhabitat.org/unhrp The views expressed in this publication are not necessarily shared by the UN or by UN-Habitat

ISSN 1812-240 X

Editorial In the opening article of this bumper edition, Prof. Spencer Zifcak discusses ESC rights under Australian constitutional law and outlines the draft federal Human Rights Act, which is due to be introduced into the Commonwealth Parliament as a Private Members’ Bill this autumn. This is followed by a piece

by Mayra Gómez focusing on the housing rights violations suffered by the inhabitants of the Darfur region. The next section consists of detailed summaries of two recent ESC rights decisions.

First, a decision of the European Committee of Social Rights dealing with the right to adequate housing of Roma families in Bulgaria, and, second, a ruling of the High Court of Botswana on the ESC rights of Bushmen from the Central Kalahari Game Reserve. Finally, there is information on a ‘case to watch’ from Sri Lanka, which centres on the forced eviction of ethnic Tamils in Colombo.

We are thankful to the Housing Rights Programme, a joint initiative of UN‑HABITAT and the UN Office of the High Commissioner for Human Rights, for providing the necessary funding to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure the widest possible distribution.

We welcome any comments, submissions of case notes and articles, as well as information on new cases and relevant events and publications.

Please feel free to contact us at: quarterly@cohre.org

» Australia’s record at the UN The present conservative Australian Government, which has been in power for more than a decade, does not favour the domestic legal recognition of ESC rights despite Australia being a party to the Covenant. One illustration of its general negative stance towards these rights has been its recent voting record on relevant matters in the UN’s Economic and Social Council (ECOSOC) and other UN bodies. 6 Australia voted against a resolution to strengthen the Office of the UN High Commissioner for Human Rights. Fifty-two countries voted in favour. Australia was in minority of two. It has also consistently opposed the adoption of the Optional Protocol to the International Covenant on Economic and Social Rights.7 Australia abstained on a resolution designed to advance the formulation of a right to development. Although admittedly the right remains somewhat abstract, this resolution was of great symbolic importance to the poorer nations of the world. Fifty-one countries were supportive. Only two others took the Australian position. It was a similar story on a resolution that sought to put further work into framing a right to food. Australia was the only state to oppose the resolution. Fifty-two countries adopted it. Australia abstained from a vote which supported the realisation of economic and social rights in all countries and which proposed a detailed study of the problems that developing countries face in their efforts to achieve decent standards of living in accordance with such rights. Forty-nine countries voted in favour. The Council considered a resolution expressing concern about the impact of economic globalization on the full enjoyment of international human rights. Given the ever-widening North-South gap, one would have thought that it would not cost the state too much to give in principle support to such a concern. Australia, however, was the only country to vote against.

Australia’s domestic record This reluctance in relation to rights is reflected equally in the Australian domestic context.8 The country is the only one in the Western world not to have adopted either a constitutional or statutory charter of rights. In other words, with the exception of anti-discrimination laws, it has not given domestic legal effect to its international treaty obligations. This has been a persistent source of criticism from every UN human rights treaty body. 9 In its Concluding Observations on Australia’s most recent periodic report to the UN Committee on Economic Social and Cultural Rights, for example, the Committee expressed its regret that ‘because the Covenant has not been entrenched as law in the domestic legal order, its provisions cannot be invoked before a court of law.’ 10 The Committee noted with approval that the majority of Australians

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See further S. Zifcak, Mr Ruddock Goes to Geneva (Sydney: University of New South Wales Press, 2003) and S. Zifcak ‘Second Opinion: Australia before the Economic and Social Council’ in The Diplomat, Vol.2, No.9 (October-November 2004).

7 See, e.g., Report from the First Session of the Open-Ended Working Group to consider options for an Optional Protocol to ICESCR (2004) E/CN.4/2004/44; Report from the Second Session of the Open-Ended Working Group to consider options for an Optional Protocol to ICESCR (2005) E/CN.4/2005/52, and Report from the Third Session of the Open-Ended Working Group to consider options for an Optional Protocol to ICESCR (2006) E/CN.4/2006/47 8 See further H. Charlesworth ‘The Australian Reluctance about Rights’ in P. Alston (ed), Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law, Australian National University, 1994).

9 See further S. Zifcak Mr Ruddock Goes to Geneva, (n. 6 above).

10 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia, U.N. Doc. 01/09/2000, E/C 12/1/Add.50.

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have a high standard of living and that the Government continues to make significant efforts to maintain that standard. However, it then proceeded to identify a number of significant sources of concern about Australia’s record.

Indigenous peoples in Australia, it said, continue to be at a significant comparative disadvantage in the enjoyment of their ESC rights particularly in the fields of employment, housing, health and education.11 Further, the Committee commented that changes to the Native Title Act 1993 (Cth) which pared back aboriginal entitlements to land has had a detrimental impact upon endeavours to effect a reconciliation between indigenous peoples and the countrie’s inhabitants of European descent.12 The absence of an official poverty line had deprived the Committee of the criterion it required to determine what progress, if any, had been achieved in the alleviation of poverty.13 In this respect, it singled out homeworkers for special mention.14 It noted that homeworkers, who are predominantly women, do not enjoy any form of social protection and consequently are frequently paid wages lower than the prescribed minimum.15 This compels them to work substantially longer hours in order to ensure the daily subsistence of their families.16

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

The Committee also criticised the Government’s changes to the national industrial relations framework.17 A central thrust of these alterations had been to legislate a preference for individual contracts as opposed to collectively bargained agreements.18 The Committee expressed its concern that this preference may result in a lessening of protection for wages, job security and temporary employment.19 It noted that in all States of Australia there were lengthy waiting lists for elective surgery in public hospitals despite a guarantee of adequate health coverage for all under the nation’s Medicare insurance system.20 This had resulted in a substantial difference in the quality of service provided by public and private health care facilities. Similarly, the Committee noted the developing disparity in quality between public and private schooling.21 In a more recent set of Concluding Observations, the Committee on the Elimination of Racial Discrimination (CERD) added its deep concern about the position of refugees.22 Refugees who arrived without a valid visa, it noted, were issued only with temporary protection visas.23 These visas, valid for only three years, deprived refugees of any entitlement or expectation of family reunion, and provided them with only the most

limited access to social security, health, education and work. The Committee rightly described the situation of refugees as precarious and possibly discriminatory.24 The Australian Government has established and maintained a Human Rights and Equal Opportunity Commission. However, whereas the Commission is given a mandate to take complaints with respect to any aspect of Australia’s performance under the International Covenant on Civil and Political Rights (ICCPR), and other treaties dealing with such rights, it has been given no similar mandate with respect to the observance of ESC rights. 25 Some positive signs of legal and attitudinal change It may be, however, that the tide is beginning to turn. In 2004, for example, the Australian Capital Territory enacted the first statutory charter of rights in the country.26 This was preceded by an extensive report recommending the adoption of a Charter.27 The report’s authors proposed that the new Charter contain economic and social rights as well as civil and political rights.

It said that: “The draft Human Rights Act attached to this report makes clear the indivisibility of economic, social and cultural rights and civil and political rights by grouping them together in

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Ibid, para. 15 Ibid, para. 16 Ibid, para. 20 Ibid, para. 18 Ibid.

Ibid.

Ibid, para. 17 Ibid.

Ibid.

Ibid, para. 22 Ibid, para. 23 Concluding Observations of the Committee on the Elimination of Racial Discrimination: Australia, 14/04/2005, April 2005, U.N. Doc. CERD/C/AUS/CO/14, para. 14.

Ibid, para. 24 Ibid.

On the implementation in Australia of the ICESCR and the other international human rights covenants more generally see N. O’Neill, S. Rice & R. Douglas, Retreat from Injustice: Human Rights Law in Australia (Sydney: Federation Press, 2004) Chapter 7.

Human Rights Act 2004 (ACT).

H. Charlesworth, L. Behrendt, E. Kelly & P. Leyland, Report of the ACT Bill of Rights Committee: Towards an ACT Human Rights Act, (Canberra: Australian Capital Territory, 2003)

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relevant categories. For example, the right to be free from hunger, contained in the ICESCR, is in essence an aspect of the right to life, usually categorised as a civil and political right. Similarly, the right not to be held in slavery or servitude, set out in the ICCPR, is closely related to the right to work, contained in the ICESCR. The Committee hopes that by identifying the deep connections between the two Covenants in the Human Rights Act, the simplistic distinctions often drawn between economic, social and cultural rights on the one hand, and civil and political rights on the other, will be seen to have no substance.”28 The Territory Government rejected the idea that ESC rights should form part of the new legislation.

However, the Committee’s report reignited the debate about the desirability of comprehensive human rights legislation at Federal and State level and about the place of ESC rights within domestic law.

The State of Victoria followed in 2006. 29 It accepted a recommendation from an expert consultative committee that Victoria should enact a Charter of Rights and Responsibilities giving domestic effect within the State to the rights contained in the ICCPR.30 This legislation comes into force in 2008. In the terms of reference for the committee, the State Government had ruled out the inclusion of ESC rights in state legislation. However, it adopted the committee’s recommendation that the desirability of enacting such rights should be a matter revisited at the time of the new Charter’s review, four years after its enactment. Subsequently, the States of Tasmania and Western

Australia have initiated their own inquiries as to whether they should introduce similar statutory human rights protection.

The Commonwealth Government remains opposed to a Charter of Rights, whether statutory or constitutional. However, this has not prevented the commencement of a new and significant campaign for such a Charter, a campaign that has gathered momentum in the past eighteen months. The centrepiece of this campaign is a fully drafted Australian Human Rights Act, which was written by this author. 31 The campaign has gained the support of three of the four major political parties at national level. The Human Rights Act is likely to be introduced into the Commonwealth Parliament as a Private Members’ Bill in Autumn 2007. It will, therefore, be considered by the Parliament in the run up to the Federal Election which is expected to take place in November 2007.

It is notable, in this present context, that the draft Human Rights Act contains a number of the most important economic, social and cultural rights. These are primarily derived from the ICESCR but take their source from human rights instruments across the globe. More specifically, the Act incorporates the rights to education, health, social security and to an adequate standard of living. It provides for the right to work and, in the context of sweeping new changes to industrial relations,32 reaffirms the right of workers to bargain collectively and the right to strike. It also sets down economic, social and cultural rights pertaining to the nation’s indigenous peoples. While, in general terms, these rights are framed in

28 29 30 31

internationally recognisable form, there are, nevertheless, some innovations worth remarking upon.

The right to education in Section 37, for example, is cast in the following terms: (1) Every person has the right to education that seeks to develop each to his or her optimal capacity and character. This right includes a right (a) to primary education which is compulsory and available free to all without discrimination; and (b) to secondary education which is compulsory up to the age determined by each State and Territory and available free to all without discrimination.

(2) Higher education must be made equally accessible to all, on the basis of capacity, by every appropriate means.

(3) To ensure the religious education of their children in conformity with their own convictions, parents may choose schooling for their children, other than that provided by public authorities, so long as that schooling conforms to such minimum standards of education as are required by law and which is consistent with the observance of the human rights set out in this Act. Consistently with the ICESCR, this section defines the purpose of education as being to develop one’s personality to the fullest possible extent and adds the corollary that it should aim to strengthen one’s individual talents to their maximum. 33 It makes it clear that education at all levels shall be provided without discrimination on any recognized ground. Tertiary education, which

Ibid, p.96.

Charter of Rights and Responsibilities Act 2006 (Vic)..

Report of the Human Rights Consultation Committee: Rights Responsibilities and Respect (Melbourne: Government of Victoria, 2006).

The campaign is sponsored by the online magazine of political and social opinion, New Matilda. It may be found at www.newmatilda. com. The Draft Act and details of the national campaign are available at www.humanrightsact.com.au.

32 See Workplace Relations Act 2005 (Commonwealth).

33 ICESCR, Article 13.

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in Australia as the result of the introduction of fees and loans is becoming ever less available to students from disadvantaged backgrounds, is to be provided on the basis of merit alone. Parents may choose religious schools for their children but only where the education provided in such schools respects and accords with fundamental human rights. The Covenant’s reference to moral education is removed since it tends to imply that education in ethics is not provided in public schools.

An entirely new provision (Section 39) has been framed to provide for the cultural rights of the indigenous peoples of Australia. It is as follows: (1) Indigenous peoples have the collective right to live in freedom, peace and security and to full guarantees against genocide or any other act of violence.

(2) Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.

(3) Indigenous peoples have the right to practise and revitalize their spiritual and cultural traditions, customs and ceremonies.

(4) These rights may not be exercised in a manner inconsistent with any of the human rights set down in this Act. This provision is the only one in the Human Rights Act that confers rights collectively. In the context of the violent suppression of the indigenous peoples of Australia at the time of the nation’s colonisa-

tion and paternalistic policies which included the wholesale removal of Aboriginal children from their families through the first six decades of the 20th century, the section makes it clear that genocidal and other violent and discriminatory policies will not be permitted. In the present Australian context, thankfully, the provision is largely symbolic. The wording of the rights set down here is a variant of that contained in similar provisions of the UN’s Draft Declaration on the Rights of Indigenous Peoples (1994). These rights, as with other minority rights, are made subject to the requirement that they shall not be practised in a manner that infringes upon other fundamental human rights.

Finally, the Act contains an interpretation clause (Section 40), which seeks to clarify the role of the Court when addressing the fulfilment of ESC rights: In relation to (the relevant sections), it is acknowledged that these human rights are subject to progressive realisation and that their realisation may be limited by the financial resources available to government.

Accordingly in any proceeding under this Act that raises the application and operation of these human rights, a court must consider all the relevant circumstances of the particular case including – (a) The nature of the benefit or detriment likely to accrue or be suffered by any person concerned; and (b) the financial circumstances and estimated amount of expenditure required to be made by a public authority to act in a manner compatible with human rights

before determining that the provisions of any law or that the acts or conduct of a public authority are incompatible with the Act. This provision reflects, in legislative form, the necessary qualifications upon the achievement of ESC rights contained in the ICESCR.34 That Article requires States Parties to take steps towards the progressive realisation of these rights to the maximum of their available resources. This section of the Act seeks to effect an appropriate balance between the interest of an individual party in obtaining the benefit of any ESC right and the acknowledged constraints upon the capacity of government to provide for such a right given necessary and competing budgetary constraints and priorities.

Conclusion Of course, it remains to be seen whether and when the draft Human Rights Act will enter Australian law. It is unlikely to do so under the present Conservative administration in Canberra. It will require a change in government at the 2007 election before such legislation is enacted. Even then the Opposition Labor party might need some persuasion. Nevertheless, current developments at both Commonwealth and State level, particularly several States’ recent embrace of human rights legislation, provide some cautious cause for optimism that Australia’s idiosyncratic reluctance about rights will be redressed in the not-toodistant future. It is not unreasonable to predict that, as elsewhere, it will be civil and political rights that will achieve legal recognition in the first instance. It can only be hoped that ESC rights will be taken seriously not long thereafter.

34 ICESCR, Article 2(1).

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THE HOUSING RIGHTS CRISIS IN DARFUR

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By Mayra Gómez36 Sudan is today one of the world’s most bitterly divided countries, and, in recent years, the crisis in Darfur has received considerable international attention as the human rights situation has deteriorated into nothing short of a catastrophe. Grave human rights violations are being perpetrated daily in Darfur, with almost total impunity; and housing rights violations have been no exception. In fact, in 2004, COHRE named Sudan as one of the three worst Housing Rights Violators for its “persistent, systematic and unjustified violation of the housing rights of its citizens, including internally displaced persons [IDPs] in Darfur and Khartoum, and for its ongoing failure to apply international and regional human rights standards.”37 Since then, the housing rights situation in Darfur has, if anything, deteriorated. Darfur is home to 6.5 million people. About one third of them have lost their homes in the ongoing conflict. Statistics from the United Nations and international non-governmental organisations indicate that 2.5 million people are now living as internally displaced persons in Darfur. Over 200,000 have crossed over the Chad border and reports estimate that another 200,000 have been killed.

In a visit to Darfur last year, housing concerns were described to COHRE by one UN agency representative as being one of the “big headaches” in the region. There has been a massive destruction of housing, forcing hundreds of thousands of people to flee to IDP and refugee camps. Because of the construction of traditional housing across the region (typically constructed from mud, wood, and straw) up to 170 huts have been reported burned within the span of just one half hour. Tracer bul-

lets are often used to accomplish this. While such weapons are officially only available to the government, they are often used by the Janjaweed militia. This scorched earth policy has accompanied other egregious human rights crimes, including murder, rape and torture.

By all accounts, land is a very political and politicised issue in Darfur. Some suspect that the Government of Sudan has promised the lands of the IDPs to the Janjaweed militia in exchange for the displacement. Yet, because of the conflict there is also reportedly a widespread problem of land degradation. Due to the mass migration of entire communities, large numbers of animals have occupied certain areas, have contaminated water sources and damaged the soil structure. Infrastructure has been destroyed due to the conflict, and some areas have been mined.

Nonetheless, control over land is not the root cause of the conflict. Despite the fact that the Government of Sudan often likes to frame the conflict as one between farmers and herders in the region, the real roots of the conflict lie in the Government’s quest to alter the political make-up of the region and solidify its own political control.

Darfur, like other regions in Sudan, has a long history of being both politically and economically marginalised by Khartoum. Nor is the conflict strictly delineated along ethnic lines, although the Western media has often portrayed it as such. Certainly, Darfur is very ethnically diverse, and various armed groups have played off these ethnic identities and tensions to increase their own political power, leading to inflammatory language about ‘Arabs’ and ‘Africans.’ Nonetheless, it is clear that access to and control over land has become inextrica-

bly embroiled in the conflict, and that the displacement has led to widespread secondary occupation throughout the region.

There is a widespread feeling that peace is not in sight in Darfur, despite the signing of the Darfur Peace Agreement (DPA) on 5 May 2006. If anything, the DPA seems to have led to a further deterioration of the security situation in the region. Because of the poor security situation, people will not return, although reportedly many would go back if security improved. Some displaced persons, however, do not want to go back because of the trauma which they and their families experienced. All sources which COHRE interviewed seemed to agree that in Darfur return will be very complicated; land has been mined, water sources contaminated, villages burnt and occupied. According to one source, 2006 ‘continue[d] to be a year for protection, not a year for return.’

Complicating the protection effort, the African Union (AU) is losing (or perhaps has lost) respect in Darfur among IDPs who feel that they were not a fair broker during the Darfur peace negotiations.

In Kalma camp, visited by COHRE in July 2006, one AU official was murdered by a mob of IDPs in May 2006, and the outpost of the AU within the camp has been burned to the ground. By all accounts, life in the camps has shaken the social life of communities, and many IDPs are extremely traumatised and suspicious of outsiders.

The situation on the ground One UN official working in Darfur described Kalma camp – which accommodates more than 160,000 IDPs – as a “hot potato”, and said it was an extreme example of one of the worst camps in the region

35 From 18-31 August 2006, COHRE conducted a fact-finding mission (FFM) in the Sudan, with visits to Khartoum (capital of Sudan), Nyala (South Darfur State) and Juba (Central Equatoria State and capital of South Sudan). The mission was carried out under the auspices of the COHRE Housing and Property Restitution Programme (HPRP) with financial and logistical support from UNHCR. 36 Coordinator, Women and Housing Rights Programme, COHRE. 37 COHRE, Press Release, 24 Nov. 2004.

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where there is a high demand for services. There is reportedly a great deal of mistrust on the part of IDPs in relation to not only the AU, but also the UN and local NGOs. Indeed, some of these IDPs are amongst the strongest opponents to the DPA due to their belief that the agreement provides neither the protections they seek in terms of political reforms (for instance, representation of Darfur as a region) nor adequate compensation for losses.

Kalma residents told COHRE how their communities had been attacked by the Janjaweed in February of 2003. Attackers arrived on foot, in cars, and on camel-back, shooting as they came.

These attackers reportedly burned houses, killed villagers, burned and destroyed crops, looted animals and abducted children. They kept burning surrounding villages, until they had razed a total of 22 villages to the ground, displacing a total of some 84,000 people. Since arriving at Kalma, residents have faced many problems, including difficulties with basic living conditions and reported repeated attempts by Government authorities to force them out of the camp and back to the villages.

Security in the camp remains a crucial concern. According to reports received from IDPs, the members of the Janjaweed continue to come to Kalma on a regular basis (3-4 times a week) to harass and intimidate residents. Rape of women and girls continues to be a pressing concern. In the days just prior to COHRE’s visit of Kalma camp, close to 50 women and girls were reported to have been raped when leaving the camp to collect water, firewood, or to tend small garden plots. Residents told COHRE that they would like to see an international peacekeeping force deployed immediately to Darfur in order to provide for their protection.

Conclusion While a peaceful Darfur is not yet in sight, it is critical to take action now to end impunity for the many human rights abuses taking place there – before the situation spirals even further out of control.

In March 2005, the UN Security Council referred Darfur to the International Criminal Court and, in May this year, the Special Prosecutor of the International Criminal Court issued arrest warrants for a militia leader and The Current CURRENT Minister OF Humanitarian Affairs (formerly the

Minister of State for the Interior) in May of this year. In addition, the African Commission on Human and Peoples’ Rights has declared admissible a complaint brought

by COHRE against the Sudan in relation to the forced evictions and accompanying human rights violations perpetrated in Darfur.38 However, these regional and international legal efforts seem unlikely to result in extensive, concrete improvements on the ground, at least in the immediate future. Arguably a more potentially effective development is the UN Security Council Resolution of 31 July 1 2007 authorising the deployment of 26,000 UN and African Union troops and police to Darfur in the form of an AU/UN Hybrid Peacekeeping Operation.39 Sudan has stated that it will cooperate fully with the deployment of the force. Bearing in mind the appalling conditions and rights violations being suffered by the Darfurians, it is crucial that Resolution be immediately and effectively implemented in order to ensure the adoption of a comprehensive effective approach to preventing and remedying human rights violations.

38 Communication 296/05 – Centre on Housing Rights and Evictions (COHRE)/The Sudan (The African Commission is expected to make a decision on the merits of this case in late 2007).

39 Resolution 1769 (2007), U.N. Doc. S/RES/1769 (2007).

Guaranteeing the right to adequate housing of Roma in Bulgaria – a European decision European Roma Rights Centre v. Bulgaria 40 European Committee of Social Rights Revised European Social Charter – housing rights – non-discrimination – evictions – Roma rights Facts The European Roma Rights Centre (ERRC) claimed that Bulgaria discriminates against Roma in the field of housing with the result that Roma families are segregated in

housing matters, lack legal security of tenure, are subject to forced evictions, and live in substandard conditions in breach of Article 16 of the Revised European Social

Charter (the Revised Charter) read alone or in conjunction with Article E (the prohibition of non-discrimination in the enjoyment of Charter rights).

40 Complaint No. 31/2005, 18 Oct. 2006. The full text of the decision is available at: http://www.coe.int/t/e/human_rights/esc/4_collective_complaints/list_of_collective_complaints/MeritsRC31_en.pdf

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Decision At the admissibility stage, the Bulgarian Government argued that the complaint was unfounded because it relied on Article 16, which deals with the right of the family to social, legal and economic protection, whereas the right to housing is covered under Article 31 of the Revised Charter. In particular, the Government argued that the right to housing provided under Article 16 is considerably more restricted in scope and that the ‘automatic’ transfer of the rights contained in Article 31 to Article 16 would deprive the former of any content.

Since Bulgaria has not accepted Article 31, it asked the Committee to declare the complaint inadmissible. At the merits stage, having reiterated its comments in ERRC v Greece41 on the requirements of the right of housing under Article 16, the Committee stated that Articles 16 and 31, though different in personal and material scope, partially overlap with respect to several aspects of the right to housing: “In this respect, the notions of adequate housing and forced eviction are identical under Articles 16 and 31.”42 The Committee went on to discuss the actual complaint, stating that it raised two specific issues: (a) the inadequate housing situation of Roma families and the lack of proper amenities; and, (b) the lack of legal security of tenure and the forced eviction of Roma families from sites or dwellings unlawfully occupied by them. The Committee understood the arguments of the complainant as an allegation that the situation violated Article 16 of the Revised Charter taken together with Article E. The Committee began by noting that, upon ratification, the Charter had been incorporated into Bulgarian domestic legal order with a status higher than statutory

law. Therefore, it formed part of domestic law.

Reiterating its comments in relation to the definition of adequate housing in ERRC v Greece, the Committee emphasized that the temporary supply of shelter cannot be considered as adequate and individuals should be provided with adequate housing within a reasonable period.43 The Committee has referred to the jurisprudence of the European Court of Human Rights (ECtHR) on several occasions in its previous rulings on the right to housing.44 However, in this case, in a new (and potentially worrying) development, the Committee proceeded to state that States enjoy ‘a margin of appreciation’ in determining the steps to be taken to ensure compliance with the Charter, “in particular as regards to the balance to be struck between the general interest and the interest of a specific group and the choices which must be made in terms of priorities and resources”.45 In doing so, the Committee referred to jurisprudence of the ECtHR. The Committee stated further that it is not its task to substitute itself in determining the policy best adapted to the situation. While the reference to the multiplicity of options open to the state seems unproblematic, it is to be hoped that this express accordance of ‘margin of appreciation’ to States – hitherto not an express feature of Committee decision-making – will not be interpreted so widely as to interfere with the effective and consistent enforcement of Charter rights by the Committee.

The Committee went on to repeat its statement in Autisme-France v.

Europe that, when the achievement of a Charter right is exceptionally complex and particularly expensive to resolve, “States are required

to take measures that allow it to achieve the objects of the Charter within a reasonable time, with measurable progress and to an extent constituent with maximum use of available resources”.46 The Committee held that the Government had failed to take measures which met these criteria.

The Committee then looked at Article E and recalled its statements in Autisme-Europe that the provision prohibits both direct and indirect discrimination.

It found that with regard to Roma families, the simple guarantee of equal treatment as the means of protection against discrimination under Bulgarian law did not suffice: “Article E imposes an obligation of taking into due consideration the relevant differences and acting accordingly. This means that for the integration of an ethnic minority as Roma into mainstream society measures of positive action are needed”.47 This had not occurred here.

With regard to (ii), the Committee found that the Bulgarian legislation on the legalisation of illegal constructions set conditions too stringent to be useful in redressing the particular urgent situations of the housing of Roma families and that it affected Roma families in a disproportionate manner. The Committee found that by strictly applying the rules on legalisation to Roma, whose situation differs as a consequence of the state nonintervention over a certain period (regarding property documents, or the respect of construction safety and hygiene rules), Bulgaria had discriminated against Roma families by failing to take due consideration of the specificity of their living conditions. The Committee emphasised that, although state authorities enjoy a wide margin of appre-

41 Complaint No. 15/2003, 8 Dec. 2004. For more, see A. Nolan, ‘A Recent European Housing Rights Case’ (2005) Vol.2, No.3 Housing & ESC Rights Law Quarterly 7.

42 ERRC v. Bulgaria, para. 17.

43 Ibid, para. 34.

44 See, e.g., ERRC v. Greece, paras 20 and 25.

45 ERRC v. Bulgaria, para. 10.

46 Complaint N° 13/2002, 4 November 2003, para. 53. For more see, A. Nolan, ‘Autisme-Europe v France’ (2005) Vol.1, No.2 Housing & ESC Rights Law Quarterly 6.

47 ERRC v. Bulgaria, para. 42.

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ciation as to the taking of measures concerning town planning, “they must strike the balance between the general interest and … the right to housing and its corollary of not making individual becoming homeless [sic.]”.48 The Court concluded that, by failing to take into account that Roma families run a higher risk of eviction as a consequence of the precariousness of their tenancy, Bulgaria had discriminated against them. Significantly, the Committee

built on its previous statements in relation to eviction of illegal occupiers, stating that, in this case, “the evictions carried out did not satisfy the conditions required by the Charter, in particular that of ensuring persons evicted are not rendered homeless”.49 The Committee concluded (a) that the situation concerning the inadequate housing of Roma families and the lack of proper amenities

constituted a violation of Article 16 taken with Article E, and, (b) that the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwelling unlawfully occupied by them constitute a violation of Article 16 taken with Article E. This case note was prepared by Aoife Nolan

48 Ibid, para. 55.

49 Ibid, para. 57.

ADJUDICATION OF ARTICLE 8 ECHR AND POSITIVE OBLIGATIONS BY THE IRISH HIGH COURT O’Donnell v South Dublin County Council 50 High Court of Ireland

order requiring the defendant to make sufficient funding available to them to enable to them to acquire such accommodation.

European Convention on Human Rights – housing rights – disability rights Facts The three plaintiffs were members of a Traveller family who lived with their parents in a mobile home at a temporary halting site in Clondalkin, County Dublin. The defendant was the housing authority which provided the facilities at the temporary halting site. The three plaintiffs suffered from a condition which resulted in severe abnormalities in development and numerous disabilities. Functional performance across a range of personal activities of daily living was limited for each of them. The defendants stated that the O’Donnell family were to be provided with a bay in a permanent facility in the same site once it was ready in mid-2008. However, at the time of the hearing, ten members of the family were sharing a two-bedroom wheelchair-accessible mobile home.

The plaintiffs argued that the defendant was in breach of its

50 51 52 53

statutory duties to them and was in breach of their constitutional rights and their rights under the European Convention on Human Rights (ECHR). This Convention was incorporated into Irish domestic law by the European Convention on Human Rights Act 2003, which imposes an obligation on every organ of the State to perform its functions in a manner compatible with the State’s ECHR obligations.51 In particular, the plaintiffs invoked Articles 3 (freedom from torture or inhuman or degrading treatment or punishment) and 8 (right to respect for private and family life, home and correspondence) of the ECHR. They sought an order requiring the defendant to provide accommodation for them, as had been assessed as being suitable to their needs. That is, a second wheelchair-accessible mobile home.

In the alternative, they sought an

Decision On the facts, the Court found that “even in the short term there is an urgent necessity that [the plaintiffs] be provided with more appropriate accommodation”52 as their current accommodation was “grossly over-crowded, potentially unsafe for them and wholly unsuitable to their special needs”.53 The issue in this case was whether there was any obligation on the defendant to make that provision.

Miss Justice Laffoy held that the plaintiffs had not established that the defendant, by failing to provide for the plaintiff’s accommodation needs in the way in which the plaintiffs asserted that they should be provided for, had acted in breach of any of its statutory duties. Nor was the Court satisfied that a case had been made out that the defendant had infringed the plaintiffs’ constitutional rights.

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Record No. 2006/1904 P 22 May 2007.

Section 3(1) ECHR Act. O’Donnell at p.49.

Ibid at p.49.

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Turning to the ECHR, the Court stated that the fundamental issue in relation the plaintiff’s claim was whether Article 8 gives rise to positive obligations on the part of the state to vindicate a person’s right to respect for the private and family life and their home. The Court referred to a number of Article 8 cases decided by the European Court of Human Rights (including Chapman v. UK54 and Moldovan & Ors v. Romania55) the English and Welsh courts56 and the Irish courts,57 which established that Article 8 may give rise to positive obligations.

The Court was not satisfied that the defendant’s treatment of the plaintiffs attained the minimum level of severity necessary to constitute ill-treatment within the scope of Article 3 ECHR. Therefore, it ruled that the defendant had not engaged in any conduct that was capable of amounting to a violation of the plaintiffs’ right under that Article.

54 55 56 57 58 59

The Court held that the question which arose in determining if there had been a breach of article 8 was “whether practical and effective respect for the private and family life and of the home of …the plaintiffs requires the defendant to adopt the measure which the plaintiffs contend is necessary to alleviate the overcrowded and potentially unsafe conditions in which the plaintiffs are living”.

According to the Court, the economic wellbeing of the state (one of the grounds set out in Article 8(2) for limiting the right set out in Article 8(1)) had to be balanced against the effect of the defendants’ refusal to provide the second mobile home. In this case, the impact on the economic wellbeing of the state was the cost of providing the new caravan. This had to be balanced against the disability, hardship and deprivation which the plaintiffs endured, which was at a level that was “difficult to comprehend”.58

The Court found there had been a violation of Article 8. According to the Court, “if there is no statutory protection for the plaintiffs in their current predicament which ensures suitable and appropriate accommodation for them having regard to their age, mental condition, disability, dependency and family circumstances, the interstices into which they have fallen must represent a failure of the state and its organs to function in a manner compatible with Article 8”.59 The Court adjourned the matter of the damages to be awarded in order to give the parties an opportunity to consider the judgment and to decide how to proceed.

Ultimately, no damages were awarded because the Council provided a caravan which the Court regarded as suitable and which the plaintiffs’ mother accepted.

Casenote by Aoife Nolan

E.g., (2001) 33 EHRR 399.

Application Nos 41138/98 and 64320/01, judgment delivered on 30 Nov. 2005.

E.g., R(Bernard) v. Enfield London BC [2003] LGR 423; Anufrijeva v Southward London BC [2004] 1 All ER 833.

E.g., Doherty v. South Dublin County Council & Ors [2007] IEHC 4.

O;Donnell at p.42.

O’Donnell at p.44.

VINDICATING THE RIGHTS OF THE SAN PEOPLE IN THE BOTSWANA HIGH COURT Roy Sesana v Government of Botswana60 High Court of Botswana Indigenous peoples – land rights – right to livelihood Facts In January 2002, the Government of Botswana terminated water, food and health services to the Bushmen residing in the Central Kalahari Game Reserve in Botswana. The service cuts were followed by relocations to adjacent areas. Access to the reserve was

restricted for those who relocated, resulting in some of the Kalahari Bushmen no longer being able to enter the land they had occupied or to pursue their hunter-gatherer lifestyle. A number of the affected Bushmen bought a case against the Government in the High Court.

Decision The High Court had to consider a number of questions. The first was whether the termination of the provision of basic and essential services to the residents of the Reserve was unlawful or unconstitutional. The Bushmen claimed that unlawfulness and

60 Misca. No. 52 of 2002, 13 December 2006. For more see, ‘Case to Watch’, (2006) Vol.2, No.1, Housing and ESC Rights Law Quarterly 8.

The full text of the decision is available at: http://www.survival-international.org/files/related_material/11_532_995_Bushmen%20Ruling.doc

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wrongfulness of this action arose from the fact that, amongst other things, the Bushmen had a legitimate expectation that the services would not be terminated without their first being consulted on the matter. The second, related issue to be considered by the Court was whether the Government was obliged to restore the provision of such services to the Bushmen.

The Court found by a 2:1 majority that the termination in 2002 by the Government of the provision of basic and essential services to the Applicants in the CKGR was neither unlawful nor unconstitutional. The Court held that even if the Bushmen had such a legitimate expectation (which the majority judges differed on), there had been adequate consultation.

As a result, it was also held that the Government was not obliged to restore the provision of such services to the Applicants in the CKGR. The next paired issues were whether, subsequent to 31 January 2002, the Bushmen were: (i) in possession of the land which they lawfully occupied in their settlements in the Central Kalahari Game Reserve,

and (ii) deprived of such possession by the Government forcibly or wrongly and without their consent.

All members of the Court gave an affirmative answer to the first question, while a majority of the Court held that the Applicants were deprived of such possession by the Government forcibly or wrongly and without their consent. According to Justice Dow, this was because the Government operated under a confusing an unclear policy and there had been inadequate consultation with the Bushmen to ensure their true consent was obtained. Justice Phumaphi agreed that the residents’ had not properly consented.

The final questions the Court had to answer were whether the Government’s refusal to issue special game licences (SGL) to the Bushmen (which was necessary to ensure they could pursue their traditional lifestyle) and/or the Government’s refusal to allow them to enter into the Reserve unless they were issued with such a permit, were unlawful and constitutional. While the full Court held that the refusal to issue SGL was unlawful, only two of the judges

found it to be unconstitutional.

Justice Phumaphi stated that the simultaneous stoppage of the supply of food rations and the issuing of SGLs was tantamount to condemning the remaining residents of the CKGR to death by starvation, resulting in a violation of the right to life set out in Section 4(1) of the Botswanan Constitution.

The same two judges found that Government’s refusal to allow the Applicants to enter the CKGR unless they are issued with permits was unlawful and unconstitutional.

They held that, as the Applicants were lawfully in the CKGR, it followed that the legislative provision that forbade entry into the reserve did not apply to the residents of the CKGR who were permanently resident there. It also followed that refusal to allow the Applicants entry into the CKGR without permit was both unlawful and unconstitutional because it violated their right of freedom of movement guaranteed by Section 14(1) of the Constitution.

This case note was prepared by Aoife Nolan

ROUND‑UP OF RECENT DECISIONS IN ESC RIGHTS CASES In Frans v. Paschke & Ors.,61 the High Court of Namibia held that the common law rule that a ‘illegitimate child’ (that is, a child whose parents were not legally married to each other at the time of the child’s conception, birth or at any subsequent time) was unlawful and invalid as it did not survive the coming into force of the Namibian Constitution in March 1990. This was due to the fact that, according to the Court, the rule violated the plaintiff’s constitutional right not to be discriminated against on the ground of his social status (Article 10(2) of the Namibian Constitution).

In Canada (Industry) v. Canada (Information Commissioner),62 the Canadian Supreme Court upheld an earlier decision of the Federal Court directing the Chief Statistician of Canada to disclose specific census records with respect to individual returns in eight specific districts. These records had been requested under the Access to Information Act in November 2001 on behalf of three Aboriginal Alonquin Bands for the purpose of researching or validating their Aboriginal claims in accordance with paragraph 8(2)(k) of the Privacy Act. Access to the

requested information was necessary for the aboriginal bands to establish continuity of membership of the Bands as well as use and occupancy of the claimed lands – in other words, to support their land claims. Paragraph 8(2)(k) of the Privacy Act states that: “Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed: … (k) to any aboriginal government, association of aboriginal people…for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada;….” According

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61 Case No. (P) I 1548/2005, 11 July 2007. The full text of the decision is available at: www.saflii.org/na/cases/NAHC/2007/49.html 62 2007 FCA 212, 27 March 2007. The full text of the decision is available at: http://www.canlii.org/en/ca/fca/doc/2007/2007fca212/2007fca212.html.

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to Justice Décary, with that provision, ‘Parliament intended to ensure that privacy of information about individual members of Indian bands could be set aside for the purpose of enhancing the rights of the present and future members. It is a form of quid pro quo between the protection of the privacy of individual members and the enhancement of their collective rights.’63 In Law Advocacy for Women in Uganda v. Attorney General,64 amongst other things, the Constitutional Court of Uganda declared unconstitutional a number of provisions of the Succession Act, according to which: (a) a male heir was preferred to a female heir (Sections 2(n)(i) and (ii)); (b) there was no statutory provision for the distribution of the property of a woman who had died without a will, while there was for a man (Section 27); (c) only a father could appoint a testamentary guardian(s) for his child during minority (Section 43); (d) female relatives were excluded from the hierarchy of people who could be appointed guardian(s) (Section 44); (e) a husband could not take the domicile of his wife during marriage (rather than permitting domicile by choice) (Sections 15 and 16); and, (f) a widow’s rights to the matrimonial property were terminated as soon as she remarried, while a widower kept his rights when he remarried (Section 26). The Court held that these provisions violated a series of constitutional protections, including: (i) the right of all persons to equality before the law, and to freedom from discrimination on the ground of sex (Article 21); (ii) the constitutional guarantee of rights of the family, in particular equal rights of women and men at and in marriage (Article 31), and the rights of women, including the prohibition of laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status (Article 33(6).

The Editorial Board of the Housing and ESC Rights Law Quarterly is: • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Malcolm Langford, Visiting Fellow, Norwegian Centre on Human Rights, Norway; • Professor Sandra Liebenberg, Chair in Human Rights Law, Stellenbosch University, South Africa; • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCRNet, USA; • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme.

Coordinating Editor: • Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

63 Para. 34 64 Constitutional Petitions Nos. 13 /05 /& 05 /06 [2007] UGCC 1 (5 April 2007). The full text of the decision is available at: www.saflii.org.

CASE TO WATCH On 28 November 2007, the Supreme Court of Sri Lanka will hear the Fundamental Rights Petition case of The Centre for Policy Alternatives vs.

The Government of Sri Lanka. This case centres on the forced eviction of over 300 ethnic Tamils from the Sri Lankan capital, Colombo. On the 6 and 7 of June 2007, Tamils living in certain accommodation in Colombo were awoken by police and army officers and forced to leave immediately on buses bound for the North and East of the country. Upon the filing of a Petition by the Centre for Policy Alternatives (a local NGO), the Supreme Court issued an interim order forbidding any further evictions and prohibiting the state from preventing Tamil persons from entering or staying in any part of Colombo until the the case is decided. The Supreme Court granted the applicants leave to proceed under a number of Fundamental Rights set out in the Sri Lankan Constitution. The petitioners are relying on the right to freedom from degrading treatment (Article 11), the right to equality and equal protection of the law (Article 12(1), the right to freedom from discrimination based on ethnicity or geographical background (Article 12(2), and the right to freedom from arbitrary arrest and detention (Article 13). Significantly, from a housing rights perspective, the applicants are also claiming that the constitutional right to freedom of movement and choice of residence within Sri Lanka (Article 14(1)(h)) has been violated. This case will hopefully be decided by the end of next spring. As a State party to the International Covenant on Economical Social and Cultural Rights (ICESCR), the Sri Lankan Government is legally obliged to respect the right to adequate housing, including the prohibition on forced evictions, as guaranteed by Article 11(1) of the ICESCR. Prepared by Nilanka Nanayakkare

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Contact If you have any comments, require additional copies, or wish to subscribe to the mailing list for the Housing and ESC Rights Law Quarterly, please contact: quarterly@cohre.org For general information on the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE ESC Rights Litigation Programme Rue de Montbrillant 83 1202 Geneva, Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: cohre@cohre.org web: http://www.cohre.org