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Housing and ESC Rights Law

Centre on Housing Rights and Evictions

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Vol. 7 - No. 1 March 2010

Q ua r t erly

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 economic, social and cultural rights.

Communication 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya Cynthia Morel1

Introduction On 2 February 2010, the African Union adopted the first ever indigenous land rights case to be decided by the African Commission on Human and Peoples’ Rights. The landmark victory is the culmination of 40 years of epic struggle led by the Endorois community, which in 1973 was dispossessed of the ancestral land it had occupied since time immemorial. Lake Bogoria, located in the heart of Kenya’s Rift Valley, was to become a wildlife reserve and the State decided the community had to first be displaced. The failure to compensate the community with adequate grazing land to sustain their livestock, or to subsequently involve the Endorois in the management and benefit-sharing of the reserve, forced them into abject poverty from which they have yet to recover. In addition, as in the case of many other indigenous peoples, the severed ties with their ancestral land not only threatened their socio-economic well-being, but also their spiritual and cultural survival.

Cynthia Morel served as co-counsel of the Endorois case as founding Legal Cases Officer, and later, Senior Legal Advisor at Minority Rights Group International.

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• CASE NOTES: Plaintiffs v. Town of Sabinov et al., District Court for Presov, Case No. 8107231252, judgment of 2009

• Communication 276 / 2003 – Centre • Summary for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya

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• CASES TO WATCH - Kozak v. Poland, • UPCOMING EVENTS: Committee on Economic, Social and Cultural Rights European Court of Human Rights, Application No. 13102/02 (2 March 2010)

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Summary This edition of the Quarterly opens with an article on a groundbreaking decision from the African Commission on Human and Peoples’ Rights in the Endorois case. Dealing with the forced eviction of an indigenous people in Kenya, the Endorois case results in detailed jurisprudence on indigenous land rights in Africa, the right to restitution and the prohibition on forced eviction. Following is a Case Note on the case of Plaintiffs v. Town of Sabinov et al. This case involves racial segregation of Roma individuals in the Slovak Republic. In deciding the case, the court relied on the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of Racial Discrimination; and the European Convention for the Protection of Human Rights and Fundamental Freedoms, including for the proposition that States have positive obligations in the area of housing rights. There is also a Case Note on Kozak v. Poland, a decision of the European Court of Human Rights dealing with LGBT rights in the context of housing. 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, and the Open Society Institute for providing the funding necessary to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure its widest possible distribution. For additional information on the justiciability of ESC rights, see www. cohre.org/litigation and the Case Law Database at www.escr-net.org. 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

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>> For the first time since the adoption of the African Charter nearly a quarter Century ago, the African Commission has recognised that those maintaining a traditional way of life that is dependent on ancestral land are indigenous in the African context, and thus require adequate protection. Accordingly, the Commission has called for the recognition of the Endorois’ ownership over their ancestral land, and its restitution. It has also called for the protection of the community’s natural resources and its right to development. This brief overview of the case will outline the key findings of the decision, and assess the scope of its impact going forward.

Initial steps The case was submitted to the African Commission on Human and Peoples’ Rights (ACHPR) in 2003 by Minority Rights Group International (London) and the Centre on Minority Rights and Development (Nairobi), in partnership with the Endorois Welfare Council. This course of action followed several years of failed negotiations with Kenyan officials, as well as an unsuccessful bid before the High Court of Kenya, which rejected the merits of the case on the basis of the Kenyan Bill of Rights only protecting the individual right to property. Provisional measures of protection against further encroachment of Endorois’ ancestral land or resources were granted in 2004 by the African Commission. The Communication was then found admissible in May 2005. A full hearing on the merits took place in November 2006, followed by over three years of intense deliberations within the Commission.


The concept of indigenousness in the African context The recognition accorded to indigenous peoples in the Endorois decision was largely facilitated by the publication of groundbreaking reports from the ACHPR’s Working Group on Indigenous Populations/Communities (WGIP) in 2005.2 The WGIP’s reports, along with the ACHPR’s subsequent adoption of an Advisory Opinion on the United Nation’s Declaration on the Rights of Indigenous Peoples assisted in drawing the fundamental distinction between the concepts of ‘indigeneity’ and ‘indigenousness’ in the African context. While all original inhabitants of the continent were acknowledged to belong to the former, the latter categorization was ultimately defined according to the following criteria: (a) the occupation and use of a specific territory; (b) the voluntary perpetuation of cultural distinctiveness; (c) self-identification as a distinct collectivity, as well as recognition by other groups; and (d) an experience of subjugation, marginalisation, dispossession, exclusion or discrimination.3 The African Commission, further quoting WGIP findings, also expressly demarcated some of the shared characteristics of African indigenous groups in the following terms: … first and foremost (but not exclusively) different groups of hunter-gatherers or former hunter-gatherers and certain groups of pastoralists… … A key characteristic for most of them is that the survival of their particular way of life depends on access and rights to their traditional land and the natural resources thereon. 4 In response to the Government’s objection that the inclusion of the Endorois in ‘modern society’ had affected their cultural distinctiveness for the purposes of special protection, the African Commission drew on the case of Saramaka v. Suriname, where the Inter-American Court of Human Rights (IACtHR) disagreed with the State officials that the Saramaka people could not be considered a distinct group by virtue of some members not identifying with the larger group.5 The African Commission followed this principle by establishing that the Endorois could not be denied a right to juridical personality solely due to a lack of individual identification with the traditions and laws of the Endorois by some members of the community. On this basis, it held that the question of whether certain members of the community may assert certain communal rights on behalf of the group is a question that must be resolved by the Endorois themselves, in accordance with their own traditional customs and norms and not by the State.6 It further called on the principle that the choice of some individual members of a community to live outside the traditional territory in a manner that may differ from the customs upheld by members of the wider collective does not affect the distinctiveness of that group, nor its communal use and enjoyment of their property.7 Finally, the African Commission highlighted how the failure to recognize an indigenous or tribal group generally leads to a violation of the ‘right to property.’8 In this regard, the Commission recalled international jurisprudence, which recognized that the controversy over recognition of a community or its leadership is precisely a natural consequence of the lack of recognition of their juridical personality – a state of affairs which invariably poses obstacles to challenging property claims before domestic courts.9

Article 14 – the right to property Strictly speaking, Article 14 of the Charter only applies to individual rights. Though the Ogoni case revealed that the Commission was prepared to apply the right beyond the narrow interpretation of individual property, it remains that the Endorois case marks the first instance in which the Commission clearly defines what the protection of collective land rights under the Charter entails. Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, Submitted in accordance with the “Resolution on the Rights of Indigenous Populations/Communities in Africa”, Adopted by The African Commission on Human and Peoples’ Rights at its 28th ordinary session, 2005. [Hereafter, the ‘WGIP report’.] 3 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Communication 276/2003, African Commission on Human and Peoples’ Rights [hereafter ‘the Endorois case’], para. 150, citing the WGIP report, p. 93. 4 Id., p. 89. 5 Endorois case, para.161. 6 Id., para. 162. 7 Id., para. 162. 8 Id., para. 192, citing the Inter- American Court of Human Rights, Case of the Saramaka People v Suriname (Judgment of 28 November 2007), para X 9 Id., para. 192, citing the case of Saramaka People v Suriname, Inter-American Court of Human Rights, 2007, para 170. 2

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To begin with, the Commission established that the lack of formal title recognition of indigenous peoples’ ancestral lands could not constitute an impediment to their claims under the Charter.10 In this respect, it drew on the principle adopted by the Inter-American Court that “possession” of the land should suffice for indigenous communities lacking real title to obtain official recognition of that property.11 Remarkably, the Commission further added that, while traditional possession entitled indigenous people to demand official recognition and registration of property title, members of indigenous communities who had unwillingly left their traditional lands, or lost possession thereof, maintained property rights thereto, even though they lack legal title, unless the lands had been lawfully transferred to third parties in good faith.12 Moreover, the Commission stressed that members of indigenous communities who had unwillingly lost possession of their lands, when those lands had been lawfully transferred to innocent third parties, remained entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, actual possession is not a requisite condition for the existence of indigenous land restitution rights.13 The Commission subsequently rejected the Kenyan Government’s position that the alleged lack of clarity governing the Endorois land tenure system presented an insurmountable obstacle to the State. The Commission instead stressed that in the event of any lack of clarity, the State had a duty to consult with the members of the community – and seek clarifications from them – in order to comply with their obligations under the Charter.14 Kenya was thus called upon to recognize the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such rights recognized in the Charter and international law.15 The Commission then emphasized that Kenya’s obligations towards the Endorois community required compensation and restitution of its ancestral land. In doing so, it stated that this meant restoring the ownership of the land to the community, rather than limiting its compliance to rights of access. The Commission based its reasoning on the fact that: [I]f international law were to grant access only, indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. Ownership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries.16 The Commission clearly established that restitution of indigenous peoples’ ancestral lands required demarcation of the land in consultation with the Endorois and neighbouring communities, with a view to then granting legal title.17 The restitution of the actual ancestral land itself was further said to be obligatory unless factually impossible. In the particular case of the Endorois, the Commission stressed that the community’s ancestral knowledge of Lake Bogoria’s ecosystems not only made their guardianship of the reserve desirable, but ideal for its preservation. The fact that no other community had settled on the land, and that the land had not been spoliated, further facilitated full restitution. Finally, the Commission held that the threat posed to the Endorois’ cultural survival and way of life as a result of the continued dispossession and alienation from their ancestral land rendered that very dispossession disproportionate under international law.18 Further on the issue of proportionality, the Commission stressed that the public interest test relevant to encroachment of indigenous land met with a substantially higher threshold than in the case of individual property rights. It quoted former Special Rapporteur of the UN Working Group on Indigenous Populations, Erica Daes, in the following terms: Limitations, if any, on the right to indigenous peoples to their natural resources must flow only from the most urgent and compelling interest of the state. Few, if any, limitations on indigenous Id., para 187. Id., para 190. citing the case of The Mayagna Awas Tingni v. Nicaragua, Inter-American Court of Human Rights, 2001, para 151. The Commission also quoted Doğan and Others v. Turkey, European Court of Human Rights, Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), paras. 138-139. 12 Endorois case, para. 209 13 Id., para. 209. 14 Id. para. 195. 15 Id. para 196. 16 Id., para. 204, citing Articles 8(2) (b), 10, 25, 26 and 27 of the UN Declaration on the Rights of Indigenous Peoples. 17 Id., para. 206 18 Endorois case, paras. 231-238. 10 11

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resource rights are appropriate, because the indigenous ownership of the resources is associated with the most important and fundamental human rights, including the right to life, food, the right to self-determination, to shelter, and the right to exist as a people.19 Though the Commission’s findings break significant ground for the protection of indigenous peoples’ land rights in Africa, it remains that the decision is also significant in wider terms. One of the most notable points in this respect was introduced through an amicus curiae submitted by the Centre on Housing Rights and Evictions (COHRE), on which the Commission relied to stress that instances of forced evictions were prima facie incompatible with human rights protection afforded under the Charter and other instruments, and they could only be justified in the “most exceptional circumstances” and after “all feasible alternatives” to eviction have been explored in consultation with the affected community.20 In doing so, the Commission relied on General Comment No. 4 on the right to adequate housing and General Comment No. 7 on forced eviction as adopted by the UN Committee on Economic, Social and Cultural Rights. The Commission further drew on the amicus curiae to establish that the grave nature of forced evictions – whether they affect indigenous peoples or others – amount to a gross violation of human rights.21

Article 21 - Natural resources Restitution, as outlined under Article 14, was recaptured under Article 21 insofar as the realization of the former facilitated the full and effective respect of the latter.22 Though the Commission was cautious to explicitly grant ownership of rubies located on the Endorois ancestral land to the community, it explicitly recognized that the cultural and economic survival of indigenous peoples generally depended on their access and use of the natural resources in their territory.23 It further stated that limitations on the prerogative of the State are most likely to apply when the extraction of one natural resource affects the use and enjoyment of other resources that are necessary for the survival of the indigenous community.24 In terms of due process, the Commission emphasized that any form of resource extraction required – at a minimum – effective consultation with the Endorois.25 This included the obligation to allow the community to perform or supervise an environmental and social impact assessment prior to the commencement of any project.26 Finally, it held that an indigenous community was entitled to reasonably participate in the benefits (including royalties) derived from any such possible concession.27

Article 22 – Right to Development The Endorois case marks the very first instance globally in which the right to development has been adjudicated upon. The Commission’s findings clearly established that development must be equitable, non-discriminatory, participatory, accountable and transparent.28 The Commission was equally emphatic on the development needing to lead to the empowerment of the Endorois community. In this regard, it held that both the choices and the capabilities of the Endorois had to improve in order for their right to development to be realized.29 Much of the Commission’s attention on the aspect of choice turned on the quality of consultation processes – i.e. the extent to which consultation processes sought to obtain the community’s free, prior, and informed consent, according to their customs and traditions.30 In its assessment of the present case, it found that the Nazila Ghanea and Alexandra Xanthaki (2005) (eds). ‘Indigenous Peoples’ Right to Land and Natural Resources’ in Erica-Irene Daes ‘Minorities, Peoples and Self-Determination’, Martinus Nijhoff Publishers. 20 Op. Cit., para. 200. 21 Id., para. 218. 22 Id., para. 265. 23 Endorois case, para. 260. 24 Id., para. 264. 25 Id., paras. 266-268. 26 Id., para. 266. 27 Id., para. 266 and Recommendations 1(c) and 1(d) at page 80. 28 Id., para. 277. 29 Id., para. 283. 30 Id., para. 291. 19

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conditions of the consultations with the Endorois had failed to fulfill the Commission’s standard of consultations in a form appropriate to the circumstances. Among other factors contributing to this finding was the fact that the Endorois had been presented with the news of their eviction as a fait accompli, and that this remained true in relation to any subsequent development initiative involving Lake Bogoria.31 The decision has thus been instrumental in placing the obligation upon States to treat indigenous peoples as active stakeholders rather than passive beneficiaries.

Road ahead While the ruling in and of itself is cause for much celebration, the real impact of the case in practice depends heavily on the success of its implementation. The ruling comes at a critical moment in African development. New players such as China have increasingly claimed large stakes in forested and mineral-rich areas often inhabited by indigenous communities. Pan-African in scope, the decision is poised to serve as a blueprint for the effective protection of the continent’s indigenous peoples, who are now under more pressure than ever before. In addition, forced evictions in Kenya — and across Africa — have swelled the ranks of the disinherited, creating instability and tension. The recognition of indigenous rights can play a critical role in countering this trend, maintaining domestic stability by building a more inclusive society. As former United Nations Secretary-General Kofi Annan noted after widespread violence in Kenya two years ago, land reform is key to domestic peace. Kenya’s recent adoption of a new land policy which recognizes customary land rights in the context of indigenous land management systems demonstrates that the Government is not only in step with the African Commission decision, but that it is also poised to become a leading example on the continent. However, while Kenya has never been better positioned to rise to the challenge, political will to convert legislation into real change on the ground cannot be taken for granted.  Successful implementation of the ruling on the Endorois will require vital monitoring support from the Commission itself, with a view to holding the Kenyan Government to account when key objectives are not met. Equally important will be the role of international donors on the basis of their commitment to promoting good governance, accountability and the rule of law. The successful implementation of this case will not only bring meaningful change to the lives of the Endorois, but also set an example for the entire continent, where justice for indigenous people is so long overdue.

Id., para. 281.

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Case Note Plaintiffs v. Town of Sabinov et al., District Court for Presov, Case No. 8107231252, judgment of 2009 This case involves discrimination against Roma residents of the Town of Sabinov in the Slovak Republic. It was brought by eight Roma plaintiffs against the Town of Sabinov as well as the Ministry of Construction and Regional Development. Specifically, the plaintiffs argued that their eviction and displacement into segregated housing of a lower quality than that from which they were evicted amounted to a violation of the principle of equal treatment guaranteed by Article 12 of the Constitution of the Slovak Republic as well as national legislation guaranteeing equal treatment. The plaintiffs also argued that these actions violated the right to privacy as protected by Article 8 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms. In 2006, the plaintiffs were evicted from their homes in Sabinov and relocated to substandard,

segregated housing created solely for Roma residents and located on the periphery of the town. Most of the evictees signed leases with the municipality for the substandard housing as the alternative was homelessness. The area was cut off from access to the amenities afforded in the centre of the town. In examining the issue of discrimination, the Court cited the European Court of Human Rights in the DH, et al., v. Czech Republic case to the effect that “different treatment is then discriminatory when it lacks objective and rational justification, when it does not pursue a legitimate goal and if there is no justified ratio of proportionality between the means used and the goal which is to be achieved.” The Court went on to apply a strict scrutiny standard to issues involving racial discrimination, against referencing the European Court’s DH, et al. case which states that “Where there is

different treatment based on race, colour or ethnic origin the need for objective and rational justification must be interpreted just as strictly as can be.” On the issue of segregation, the Court relied on the International Convention of the Elimination of All Forms of Racial Discrimination as well as the International Covenant on Economic, Social and Cultural Rights. In doing so, the Court held that there exist positive obligations to eliminate segregation as well as to take steps to ensure an adequate standard of living, including adequate housing, and for the continual improvement of living conditions. The Court went on to cite General Comment No. 4 of the Committee on Economic, Social and Cultural Rights with regard to its definition of the right to adequate housing, the implementation of which necessitates positive obligations.

Case note prepared by Bret Thiele

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Case Note Kozak v. Poland, European Court of Human Rights, Application No. 13102/02 (2 March 2010) The case of Kozak v. Poland, decided by the European Court of Human Rights in March 2010, dealt with the intersection of non-discrimination and housing rights. Specifically, the court held that denial of succession of tenancy rights for the survivor of a homosexual couple living in a de facto marital relationship violated Article 14 (prohibition on discrimination) read in conjunction with Article 8 (right for respect to private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).

The Applicant also requested a hearing before the Constitutional Court to settle the following legal question:

The Applicant initially brought his case to domestic courts arguing that his denial of succession in tenancy rights and subsequent eviction order after the death of his partner, who was the leaseholder of record, amounted to a violation of Section 8(1) of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 which provides for succession to persons living in de facto marital relationships. Section 8(1) of this Act states that:

At the domestic level, the Court of first instance upheld the eviction order and ruled that “a person who has lived with a tenant in de facto marital cohabitation” relates solely to cohabitation of  a man and a woman. This decision was upheld on appeal and the appellate Court refused to send the Constitutional question to the Constitutional Court for its consideration.

a person can take over a tenancy if he or she has fulfilled jointly the four following conditions: (1) was in a close relationship with the late tenant by blood relations, adoption or de facto marital cohabitation; (2) resided permanently with the tenant until his or her death; (3) had not relinquished this right to the landlord; and (4) upon the death of the tenant had no title to another flat.

Is the term “a person who has lived with a tenant in de facto marital cohabitation” referred to in section 8(1) of the 1994 Act – if interpreted as including only de facto marital cohabitation of a woman and a man – compatible with Articles 32 §§ 2 and 75 of the Constitution and Article 14 of the European Convention on Human Rights?

On appeal to the European Court of Human Rights (Court), the Court recalled that sexual orientation was covered under the scope of Article 14. The Court recalled its jurisprudence that “when the distinction in question operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to  be advanced before the Court to justify the measure complained of” and that “where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State

Case note prepared by Bret Thiele

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is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be  shown that it was necessary in the circumstances.” The Court noted that the domestic courts “rejected the claim on the ground that under Polish law only a different-sex relationship qualified for de facto marital cohabitation, which excluded same-sex partners from succession to a tenancy.” It found that the essential objective of the different treatment, according to the appellate Court, was “to ensure the protection of the family founded on a ‘union of a man and a woman’.” The European Court opined that, given “the State’s narrow margin of appreciation in adopting measures that result in  a  difference based on sexual orientation, a  blanket exclusion of persons living in a homosexual relationship from succession to a tenancy cannot be accepted by the Court as necessary for the protection of the family viewed in its traditional sense.” Consequently, the Court went on to hold that “the Polish authorities, in rejecting the applicant’s claim on grounds related to the homosexual nature of his relationship … failed to maintain a reasonable relationship of proportionality between the aim sought and the means employed” and thus violated Article 14 of the European Convention read in conjunction with Article 8.


The Editorial Board of the Housing an ESC Rights Law Quarterly is:

• Salih Booker, Executive Director, Centre on Housing Rights and Evictions (COHRE), Switzerland; • Lilian Chenwi, Coordinator and Senior Researcher, Community Law Centre, South Africa; • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

UPCOMING EVENTS Committee on Economic, Social and Cultural Rights The Committee on Economic, Social and Cultural Rights will next meet in May 2010. States Parties to the International Covenant on Economic, Social and Cultural Rights up for periodic review include Afghanistan, Algeria, Colombo, Mauritius and Kazakhstan. States Parties up for review by the Pre-Sessional Working Group, at which the List of Issues will be prepared, are Mali, Republic of Moldova, the Russian Federation, Sri Lanka, Turkey and Yemen.

• Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCR-Net, USA; • Bret Thiele, Coordinator, COHRE Senior Expert for Litigation & Legal Advocacy, Switzerland. Coordinating Editor: • Bret Thiele, Coordinator, COHRE Senior Expert for Litigation & Legal Advocacy, Switzerland. CONTACT If you have any comments, require additional copies, wish to contribute to 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

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COHRE Housing and ESC Rights Law Quarterly, March 2010