COHRE Housing and ESC Rights Law Quarterly Vol3 No.2 2006 by The Centre on Housing Rights and Evictions (COHRE)

HOUSING AND ESC RIGHTS LAW CENTRE ON HOUSING RIGHTS AND EVICTIONS

Vol. 3 - No. 2

July 2006

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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.

COLLECTIVE VIOLATIONS OF ESC RIGHTS AND THE NEED FOR ADEQUATE JUDICIAL MECHANISMS: SOME ARGENTINE EXAMPLES By Christian Courtis1 Introduction There are numerous arguments regarding the justiciability of economic, social and cultural (ESC) rights. Some focus on political issues, for example the legitimacy of judges adjudicating on social policy or on budgetary allocations. Others concentrate on legal matters, such as the alleged indeterminacy of ESC rights. This article examines an obstacle to the judicial enforcement of ESC rights, namely the inadequacy of traditional procedural mechanisms to address ESC rights violations and, in particular, those issues that arise in relation to collective violations of ESC rights.

Procedural obstacles to adressing collective violations of ESC rights Many conﬂicts involving ESC rights have a ‘collective’ or ‘group’ dimension. This situation will constitute an important factor to be taken into account when choosing the correct strategy to tackle ac1 2

tions or omissions on the part of the State or private actors which threaten ESC rights.2

the legal curriculum, but also the design of ostensibly ‘neutral’ legal institutions, such as procedural mechanisms designed to guarantee rights. Thus, traditional procedural mechanisms privilege bilateral trials, recognise narrow standing to sue in relation to individual grievances, and have been mainly developed to deal with conﬂicts between private individuals. How does this procedural inheritance affect the judicial enforcement of ESC rights? There are several features characteristic of ESC rights that make traditional individual procedural actions inadequate in terms of ensuring their »

In the continental legal tradition inherited by Latin American legal systems, the allocation of legal resources towards property rights permeated not only

Legal Ofﬁcer on Economic, Social and Cultural Rights of the International Commission of Jurists; Professor, University of Buenos Aires (Argentina)/ITAM (Mexico). This ‘group/collective’ element is not exclusively an aspect of ESC rights. The limitations of traditional bilateral/individual procedural mechanisms in relation to collective claims also affect mass contracts, the prevention of and reparation for mass torts and damage to collective goods such as the environment, public health, cultural or historical heritage, etc.

1 • Collective violations of ESC rights and the need for adequate judicial mechanisms: some argentine examples

5 • Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural rights: what kind of Protocol is needed?

2 • Editorial

7 • A decision of the Inter-American Court of Human Rights on the rights to nationality and education

8 • Round-up of recent decisions in ESC rights cases • A 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 those of the COHRE ESC Rights Litigation Programme and are not necessarily shared by the UN or by UN-HABITAT

ISSN 1812-240 X

EDITORIAL In the opening piece of this edition, Christian Courtis of the International Commission of Jurists outlines the procedural obstacles faced by those seeking to bring complaints in relation to collective violations of ESC rights. He demonstrates how some of these obstacles have been overcome in the Argentine context. Next, Nathalie Mivelaz discusses the proposed Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and considers the various views with respect to the form that the Protocol should take. This article is followed by a case note by David Baluarte on a recent decision of the Inter-American Court of Human Rights involving the rights to nationality and education. The next section is a round up of recent judgments and decisions in ESC rights cases. Finally, there is a note on a South African ‘case to watch’ focusing on the right to alternative accommodation in the context of inner city evictions. We are deeply 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 hope you ﬁnd the Quarterly useful. 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

» full protection. First, there are scale issues: social services, plans and programmes necessary to fulfil ESC rights are designed to cover the needs of groups of individuals. Consequently, a failure to provide those services or programmes, or inadequate delivery of such, affects the entire target group, rather than simply specific individuals. Second, remedies needed to overcome these types of violations must often cover the full target group, making it impossible to offer relief to some plaintiffs without involving the other members of the group. In other cases, while individual relief is possible, it becomes impractical or unfeasible, in terms of being too expensive or offering too poor a result, due to the existence of many other people in the same situation. For example, orders requiring the redesign of a housing programme, the implementation of a food plan or the cessation of construction of a dam will necessarily entail action that will impact on an affected group as a whole. Traditional procedural actions devised under the continental law tradition present two important obstacles regarding the potential judicial protection of the aforementioned situations. First, locus standi – the ability to bring a case before courts – is frequently restricted to individuals. Thus, a lack of collective representation mechanisms results in the exclusion of cases involving groups of people in similar situations. For instance, cases concerning violations of group rights or cases where collective goods (for example, the environment) are in need of protection. Second, procedural actions traditionally only offer individual remedies,3 thus excluding collective orders which could benefit other members of a group in the same situation. A lack of adequate procedural mechanisms to deal with collective ESC rights violations does not mean that overcoming the framework of bilateral/property-oriented suits and devising new, more appropriate procedural instruments is impossible. Indeed, it merely demonstrates a lacuna in the legal framework which amounts to a prima facie breach of the obligation to provide procedural guarantees and remedies where a right is recognised.4 Rather than demonstrating the conceptual impossibility of enforcing ESC rights, it simply calls for creativity and for the adoption of apt procedural mechanisms to enforce these rights. Some legal and judicial answers to collective claims issues The recent evolution of procedural law in Latin America has taken some of these difficulties into account. There has been recognition of the need to adapt the old model of individual/bilateral actions to new challenges, such as the collective incidence of some wrongs and the need for urgent protection of fundamental legal goods before a violation occurs. Comparative law offers many examples of this trend, including the development of class actions, collective amparo, new standards in preliminary measures, the creation of new forms of actions, innovative judicial injunctive orders, and the provision of locus standi for Public Prosecutors, Attorney Generals, NGOs or Ombudspersons to represent collective complaints. Constitutional, legislative and judicial evolution in this field has been particularly notable in countries such as Argentina, Brazil, Colombia and Costa Rica. For instance, in Brazil, a novel procedural mechanism called ‘public civil action’ (ação civil pública) has been frequently employed to trigger judicial protection in environmental, consumer, occupational safety and health cases since its enactment in 1985.5 In Colombia, a number of new procedural mechanisms – including acción 3 4 5

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That is, both single remedies and remedies dealing with individual situations. See, for example, Committee on Economic, Social and Cultural Rights, General Comment No. 9 on the Domestic Application of the Covenant, UN ESCOR, 1998, UN Doc. E/C.12/1998/24 (1998), paras. 9-10. See, for example, R. de C. Mancuso, Açao Civil Pública, ed. (São Paulo: Revista dos Tribunais, 1999), pp. 46-55; M. F. M. Leal, Açoes Coletivas: História, Teoria e Prática (Porto Alegre: SA Fabris, 1998), pp. 187-200.

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de tutela6 before the Constitutional Court, acción popular7 before ordinary courts, and acción de cumplimiento8 – have radically increased the possibility of challenging State acts or omissions before the courts. In Costa Rica, a simple amparo jurisdiction before the Constitutional Section of the Supreme Court has led to noteworthy results. Overall, the evaluation of these new procedural mechanisms by lawyers and other commentators has been positive, and countries where they have not been adopted are pushing for change.9 Obstacles and solutions to collective claims: the Argentine example There have been a number of Argentine judicial cases in which the problems discussed above have arisen and been overcome. A number of housing cases involving the city of Buenos Aires demonstrate the limitations of individual legal mechanisms when an illegal Government measure has collective or group implications. In 1997, the city of Buenos Aires declared a ‘housing emergency’ and issued a programme to alleviate the situation of 9 000 low-income and indigent individuals and families. This programme involved the provision of subsidized rental in private hostels. The emergency situation did not improve significantly. Nonetheless, in July 2001, at a public meeting, government officials announced that a one-time subsidy would be paid and the programme terminated. This action, which affected the entire group of beneficiaries, led to several individual legal cases being brought by a number of the affected persons. The beneficiaries challenged the government’s attitude on the grounds of ‘prohibition of retrogression’ and ‘violation of bona fide expectation.’10 Suits were taken on an individual basis. Con-

sequently, the litigation resulted in a number of judicial decisions ordering the Government to suspend the termination of the programme in relation to individual plaintiffs who brought cases to courts. Two main problems arise from this ‘individual case’ approach. First, it increases the number of cases when the government measure to be challenged, and the facts and law at stake, are the same for the whole group. Second, it increases the risk of inconsistency of outcomes, both from the viewpoint of the aggrieved individuals and from that of the government. This may result in unequal treatment of individuals in the same position and non-uniform application of public policies. There have been interesting developments regarding collective cases before Argentine courts as a result of the use of collective actions, such as the collective amparo, and collective habeas corpus. These constitutional injunctions were introduced by constitutional amendment in 1994. Collective amparo is provided for in section 43(2) of the amended Constitution. It grants NGOs, a member of an aggrieved class and the Ombudsman locus standi to seek injunctive relief in cases involving discrimination, consumer rights, environmental rights, antitrust violations and other collective rights violations. The Argentine Supreme Court has decided several collective cases involving ESC rights on this basis. Two important cases involve the right to health. In the ﬁrst one, Asociación Benghalensis,11 a coalition of NGOs sued the Government seeking full compliance with a federal statute which guaranteed provision of HIV-related medication to public hospitals. Instead of seeking individual relief for designated patients, the coalition chose to present a single case, arguing that

individual relief was a function of full compliance with the statute. The Appellate Court provided injunctive relief to the plaintiffs, and the Government challenged its decision. The Supreme Court upheld the appellate decision, in accordance with the Attorney General’s brief. In Argentina, the Attorney General represents the objective interest of the law before the Supreme Court and is independent of the political branches of government. He or she briefs the Supreme Court on admissibility and on the merits of cases of public relevance. Here, the Attorney General recognised that “the Argentine constitution, through the amendments introduced in 1994, recognizes new mechanisms to protect users and consumers, and thus has broadened the span of locus standi, which was traditionally limited to those who could claim an individual subjective right.” He found further that the NGO coalition had not only based its claim of locus standi on “a general claim that the Constitution and the law should be complied with, but speciﬁcally on their condition of bearers of a collective incidence right [a collective right] to the protection of health, whose content is the prevention, care and rehabilitation of persons with AIDS and its derived pathologies, and also on their right to demand the compliance with one of the aims (of the law), which is the ﬁght against AIDS.” Therefore, he advised the Supreme Court to grant locus standi to the plaintiffs. On the merits, the Attorney General’s brief pointed out that the right to health is recognized in international human rights treaties. He quoted Article 12(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 4(1) and 5 of the American Convention on Human Rights and Article 6 of the International Covenant on Civil and Political Rights. Thus, “the State not only has to

6 7 8 9 10

A petition for the protection of constitutional guaranteed rights. A ‘popular action’ — essentially an action to protect collective rights on the grounds of public interest. A ‘compliance action’ that obliges authorities to abide by a law. For example, Mexico is witnessing an extensive debate about the need for a change in the amparo regulations. See, for example, the following cases of the Buenos Aires Administrative and Tax Court of Appeals: Chamber II, Ramallo, Beatriz y otros c. G.C.B.A., 3 Dec. 2002; Chamber I, S., M. G. y otros c. G.C.B.A., 28 Dec. 2001; Chamber II, Yañez, Pablo y otros c. G.C.B.A, 5 Feb. 2002; Chamber II, Jasmín, José A. y otros c. Ciudad de Buenos Aires, 31 Oct. 2002. 11 Argentine Supreme Court, Asociación Benghalensis y otros c. Ministerio de Salud y Acción Social –Estado Nacional s/amparo ley 16.688, Attorney General’s brief of 22 Feb. 1999, Court decision of 1 June 2000.

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» abstain from interfering in the exercise of individual rights, but also has the duty to perform positive actions, without which the exercise of rights would be illusory”. On this basis, the Attorney General asserted that “the State has a duty to provide the reagents and medication necessary for the diagnosis and treatment of the illness.” The majority of the Court followed the Attorney General’s brief. Two other judges concurred, making similar arguments. Another interesting collective proceeding regarding the right to health was decided by the Supreme Court in Asociación de Esclerosis Múltiple de Salta.12 Here, the Court upheld an Appellate Court decision which nulliﬁed a regulation issued by the Ministry of Health excluding some treatments related to multiple sclerosis from the mandatory minimum health coverage plan. Again, an NGO had ﬁled the case. The Court followed the opinion of the Attorney General, who considered that the case was similar to Asociación Benghalensis, and therefore granted locus standi to the NGO on the basis of its representation of the “collective incidence right to the protection of health (in this case, the defence of the rights of persons with multiple sclerosis), included within the association’s purpose.” On the merits, the Attorney General considered that the challenged regulation was unreasonable, and that it affected the right to health granted by international human rights treaties. While the Attorney General did not explicitly refer to the prohibition of retrogression, the ‘reasonability’ standard he employed comes close to it. Interestingly, despite the relative effect of declarations of unconstitutionality in the Argentine legal tradition (that is, that judicial declarations of unconstitutionality only have effect in relation to the case where they are pronounced), the fact that an NGO took the case representing the group of persons with multiple sclerosis in the Prov-

ince made the decision benefit the whole collective. Lower Argentine courts have also adjudicated interesting collective cases regarding the right to health. The celebrated Viceconte case was decided by the Federal Administrative Appellate Court.13 The case involved a collective amparo challenging the interruption of the production of a vaccine, designed to eradicate an endemic disease. The plaintiff, as a member of the affected class, represented a population of about 3 500 000 people potentially exposed to the disease through a collective amparo. The Government had previously funded the research, validated the vaccine, ordered the production of a lot of experimental doses in a foreign laboratory, and carried on an initial process of vaccination of the population. This process was very successful in terms of preventing the disease. Political and administrative changes, however, led to an interruption in construction of the facilities needed to produce the vaccine locally. When the doses which the government had ordered from a foreign laboratory were exhausted, access to the vaccine ceased. The plaintiff argued that the interruption in the production of the vaccine by the Government violated the duty to prevent, treat and control epidemic and endemic diseases, enshrined in Article 12(2)(c) of the ICESCR. The Appellate Court granted locus standi to the plaintiff and found for her on the merits. The Court ordered the Government to provide funding and to adopt the measures necessary to ensure the production of the vaccine. Two other collective cases decided by the Supreme Court focused on prisoners’ rights. In the first case, Mignone,14 the Supreme Court was faced with a claim involving voting rights of inmates subjected to pre-trial detention. Again, a human rights NGO filed a collective amparo,

challenging the constitutionality of the Voting Code, which denied inmates subject to pre-trial detention (a population of around 5 000 people) of the right to vote. The main claim was that the Code violated Article 23(2) of the American Convention on Human Rights, which only refers to a criminal conviction in its list of permissible limitations on the right to vote. Pre-trial detention is not mentioned in the Article. The Court agreed with the plaintiff, declaring that the challenged disposition was unconstitutional, and ordering Congress to adopt “the adequate measures to guarantee that inmates subjected to pre-trial detention can vote” within six months. Reasons of scale clearly made it more convenient to request a collective remedy involving the whole class, instead of seeking isolated and potentially contradictory judicial orders. In the Verbitsky15 case, the Supreme Court decided a collective habeas corpus regarding the situation of more than 6 500 pre-trial detainees who were detained in police precincts due to a lack of space in correctional facilities. While individual suits had been ﬁled previously, they had only resulted in the transferral of detainees from one precinct to another, without tackling the problem as a whole. Therefore, the NGO plaintiff chose to claim representation for the totality of the group, demanding a collective remedy. The plaintiff requested the courts to ﬁx the constitutional standards regarding adequate conditions of detention, and to order the Government to design a plan aimed at alleviating the overcrowding of the precincts. Interestingly, the NGO also asked the courts to order the government to devise a consultation procedure in order to enable different stakeholders to participate in the development of the plan. The lower courts which heard the case rejected the habeas corpus application. In his brief, however,

12 Argentine Supreme Court, Asociación de Esclerosis Múltiple de Salta c. Ministerio de Salud –Estado Nacional s/acción de amparo-medida cautelar; Attorney General’s brief of 4 Aug. 2003; court decision of 18 Dec. 2003. 13 Federal Administrative Court, Chamber IV, Viceconte, Mariela c. Estado nacional –Ministerio de Salud y Acción Social s/amparo ley 16.986, 2 June 1998. 14 Argentine Supreme Court, Mignone, Emilio Fermín s/promueve acción de amparo, 9 Apr. 2002. 15 Argentine Supreme Court, Verbitsky, Horacio s/Habeas Corpus, 3 May 2005.

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the Attorney General advised the Supreme Court to admit it and to decide in favour of the claimants. He argued that the failure of lower courts to consider the case collectively amounted to a violation of the right of access to justice. This was because it denied the plaintiff (and the represented group) the possibility of having the grief considered as a whole and thus to obtain a collective remedy.16 The Supreme Court agreed with the Attorney General and with the plaintiff, extending its previous ﬁndings in relation to collective amparo to habeas corpus. The Supreme Court found that the situ-

ation amounted to the violation of a collective right, and that both locus standi for a NGO and the provision of a collective remedy were justiﬁed. On the merits, the Supreme Court held that the situation constituted a violation of the rights of detainees and, in some cases, could amount to inhumane and degrading treatment, particularly where children and ill people were involved. It therefore ordered the Government to (a) immediately free those detainees who were members of vulnerable groups; and, (b) design a plan to tackle the situation. The Court also required the Government

to call for consultation with the different stakeholders in order to devise the required plan. Conclusion The recent Latin American developments discussed above do leave some questions open. For instance, the issues of conﬂicts of representation and the ability of courts to ensure enforcement of their orders, as well as the possibility of settling cases. However, they undoubtedly provide new opportunities for adequate judicial protection in the context of group violations of ESC rights.

16 Argentine Supreme Court, Verbitsky, Horacio s/Habeas Corpus, Attorney General’s brief, 9 Feb. 2004, para. IV.

TOWARDS AN OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: WHAT KIND OF PROTOCOL IS NEEDED? By Nathalie Mivelaz17 In June 2006, members of the newly-created Human Rights Council had to decide whether or not to support the drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). This Protocol would enable victims of economic, social and cultural rights (ESC rights) violations to bring complaints at the international level. By adopting a resolution by consensus,18 the 47 member States of the Council decided to move towards the creation of such an instrument. The elaboration of an OP-ICESCR is not a new issue. It has been on the UN agenda since 1990, when the UN Committee on Economic, Social and Cultural Rights ﬁrst examined this question. The Committee produced a ﬁrst draft Protocol in 1996.19 Since then, the idea has gained momentum through a number of expert meetings, the increased involve-

ment of NGOs,20 and the work of an Independent Expert of the UN Commission on Human Rights (the CHR). In addition, in 1993 a 3-year open-ended working group of the CHR (the working group) was mandated to look at options regarding the elaboration of an OP-ICESCR. At the last meeting of this working group, in February 2006, all African and Latin American countries together with Azerbaijan, Belgium, Croatia, Finland, France, Italy, Iran, Portugal, the Russian Federation, Spain, Slovenia, Timor Leste and Turkey expressed support for the elaboration of a comprehensive OP-ICESCR. Such an OP-ICESCR would cover all rights in the Covenant and all levels of State obligation. Most of these countries were also in favour of proceeding to negotiate an Optional Protocol on the basis of a draft text to be elaborated by the working group’s Chair. Other approaches proposed during

this meeting can be divided into three categories. First, countries such as Canada and the United Kingdom supported the elaboration of an OP-ICESCR but on the basis of a working document, not a draft text. This approach keeps other options on the table, in particular the à la carte option, whereby some rights or some levels of States obligations could be left out of an international complaint procedure for ESC rights.21 Second, India, Japan, the Netherlands and South Korea, among others, stated that they needed more time to make up their minds and continued to express concerns regarding the justiciability of ESC rights and/or the additional value that an OP-ICESCR would bring in terms of ensuring the protection and realisation of ESC rights. Finally, countries like the U.S. and Australia continue to be opposed to the elaboration of an OP-ICESCR altogether.

17 18 19 20

COHRE UN Liaison Coordinator. UN Doc. A/HRC/1/L.4**. UN Doc. E/CN.4/1997/105. NGOs working on the elaboration of an OP-ICESCR work through the NGO Coalition for an OP-ICESCR, which brings together individuals, as well as national, regional and international NGOs, in favour of such an instrument. For more information on the work of the NGO Coalition, see: http://www.escrprotocolnow.org/ 21 The NGO Coalition for an OP-ICESCR has outlined the various à la carte approaches in a written submission to the working group; http://www.escrprotocolnow.org/

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At the Human Rights Council’s meeting, the member States reached a consensus whereby they agreed to renew the working group’s mandate to elaborate an Optional Protocol on the basis of a draft text to be presented by the working group’s Chair. This draft text will have to take into account “all views expressed during the sessions of the working group on, inter alia, the scope and application of an Optional Protocol” and include draft provisions related to the different approaches that could take this protocol. As such, the key question today centres on the kind of Optional Protocol that will be developed during those negotiations. Amongst other things, participants will have to consider whether it is preferable to develop an à la carte Optional Protocol – thereby implying that certain ESC rights or levels of State obligations are not justiciable – rather than having no OP-ICESCR at all. Another issue for discussion is whether having a comprehensive Optional Protocol that allows for reservations would simply mean the introduction of an à la carte approach through the backdoor. Furthermore, what kind of impact would such reservations have on the mother treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the state obligations imposed by that instrument? Many states and NGOs are concerned about developing drafts based on the approach that states could chose which rights to recognize on the basis of an à la carte Optional Protocol. Indeed, such an approach would be unprecedented in the UN system. It is open to question whether such an Optional Protocol would represent a step forward or a step backwards. It is vital to recognise that negotiations and discussions around the elaboration of an OP-ICESR do not happen in a vacuum but build upon and relate to the development of case law on ESC rights at the national and regional levels. This evolution of case law has instruct-

ed and guided the discussions on a complaints procedure for ESC rights violations at the international level. Any decision regarding the type of Optional Protocol to develop could either enhance and support these developments or else could seriously undermine them. According to the NGO Coalition for an OP-ICESCR and many ESC rights experts, there are a number of important reasons why (a) an OP-ICESCR should include all rights enshrined in the ICESCR, as well as all levels of State obligations; and (b) no reservations should be permitted.22 Firstly, there are no practical obstacles to the development of an Optional Protocol that would cover all the rights enshrined in the ICESCR. Justiciability is not an issue. All rights and all levels of States obligations have been adjudicated in many different countries and legal systems. The fact that the full spectrum of ESC rights cannot be adjudicated in certain countries does not relate to the nature of those rights, but is largely attributable to the fact that either such rights have not been incorporated into national law, or international treaties are not directly applicable in domestic legal proceedings. Instead of promoting more effective remedies to ESC rights, restrictions to the scope of a United Nations complaints mechanism could have an adverse impact on the enforcement of ESC rights at the national level. For instance, national Courts frequently refer to international developments and international law in their deliberations and decisions. As such, the exclusion of certain ESC rights could lead to courts deciding that those rights excluded from the Optional Protocol cannot be subject to a judicial determination domestically. Secondly, an Optional Protocol would not create any new obligations. In fact, it would establish a complementary mechanism to the reporting procedure for address-

ing and redressing violations of the rights enshrined in the Covenant. As such, having an Optional Protocol covering only certain rights might affect the way States implement their obligations under the ICESCR and could lead to the prioritisation of certain rights to the detriment of others, thereby defeating the intentions of those who drafted the ICESCR. Thirdly, a comprehensive approach is the only practical way of addressing the realities faced by the victims of ESC rights violations. For most of them, isolating one right from others, such as the right to health from the right to housing, would not only amount to a failure to recognise their experiences, but would also prevent them from obtaining full redress, reparation, and termination and non-repetition of the rights violations they suffer. Similarly, excluding certain levels of States obligations from procedures under an Optional Protocol would have a serious impact on victims’ ability to have their case adequately considered at the international level. Although the distinction between the various levels of States obligations (respect, protect, fulfil) is a useful analytical tool for clarifying the different dimensions of States’ obligations, it makes no practical sense from the victims’ perspective. For example, a case of forced evictions involves the three levels of State obligations. In this instance, excluding the obligation to fulfil from the procedures under an Optional Protocol would prevent the Committee from looking at the issue of resettlement The Covenant as a whole recognizes and embraces the complexity and inter-relatedness of all rights, and components of rights. A comprehensive Optional Protocol, which applies to all aspects of the Covenant, in the same way that complaints mechanisms to other treaties do, will significantly enhance the understanding of ESC rights in their many dimensions and in a variety of contexts.

22 The NGO Coalition for an OP-ICESCR has outlined its position on a comprehensive OP-ICESCR in its written submission to the working group (see n. 21 above)

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A DECISION OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS ON THE RIGHTS TO NATIONALITY AND EDUCATION Yean & Bosico v. Dominican Republic 23 Inter-American Court of Human Rights American Convention – right to nationality – education rights – children’s rights – discrimination Facts In 1997, Dilcia Yean and Violeta Bosico, 10 months and 12 years old respectively, went with their mothers and representatives from the Movement for Dominican Women of Haitian Descent (MUDHA) to request birth certificates from the Dominican civil registry. The request was refused. On appeal, that refusal was affirmed by judicial authorities. This denial is emblematic of a broader problem in the Dominican Republic, where Dominican-born children of Haitian descent are systematically denied birth certificates. Without birth certificates, Dilcia and Violeta, (like many other children) were effectively denied their right to a nationality and the panoply of civil, economic, political and social rights related to that right. For instance, Violeta was expelled from school, where only children with Dominican birth certificates are allowed to study. MUDHA, together with the Center for Justice and International Law (CEJIL) and the Human Rights Law Clinic at the University of California, Berkeley (Boalt Hall) filed a petition before the Inter-American Commission on Human Rights (the Commission) alleging multiple violations of the American Convention on Human Rights (American Convention). The Commission issued precautionary measures to protect Yean and Bosico. In September 2001, when it appeared that the case would be presented to the Inter-American Court of Human Rights (the Court), the Dominican government ordered the issuance of the children’s birth certificates. However, the victims’ representatives insisted, and the Inter-

American Commission agreed, that this act alone did not constitute full reparation of the victims’ damages. Therefore, in March 2003, the Commission submitted the case to the jurisdiction of the Inter-American Court. Decision On 8 September 2005, the Court found that the Dominican Republic had violated a wide range of rights guarantees enshrined in the American Convention. The Court held that, because the Dominican Constitution incorporates the jus soli rule of nationality – which grants nationality based on place of birth – the process applied to the two girls resulted in the discriminatory denial of their right to nationality as Dominicans of Haitian descent. The Court concluded that the Dominican government had violated the victims’ rights to nationality (Article 20), equal protection of the law (Article 24) and special protection as children (Article 19). The Court also held that the State’s denial of nationality deprived the plaintiffs of juridical personality (Article 3), which acted as an affront to their human dignity. The denial of birth certiﬁcates also resulted in the violation of their right to a name (Article 18), inasmuch as they could neither register their identities publicly nor enjoy the protections that accompanied registration. Bosico’s expulsion from school speciﬁcally violated her right to special protection as a child. The Court found further that the State had violated the girls’ families’ right to physical integrity

(Article 5), but that the Article 5 rights of the girls themselves were sufficiently covered by the Court’s findings related to other rights. The Court understood all these rights to be violated in relation to the State’s obligation to respect all rights protected by the American Convention (Article 1.1). Finally, the Court found no violation of the right to a fair trial (Article 8), the rights of the family (Article 17) or the right to judicial protection (Article 25). The Court established several rules that must be applied when considering the right to nationality of migrants’ children in the Dominican Republic in light of the relevant constitutional norm (that is, the jus soli rule). First, the State may not consider a person’s migratory status when making a nationality determination, inasmuch as migratory status cannot, in any way, serve as a justification for depriving a person of their right to nationality or the exercise and enjoyment of their rights. Second, migratory status does not transfer from parent to child. Finally, birth within the State’s territory is the only prerequisite for the acquisition of that nationality for those who do not have a right to another nationality and do not acquire the nationality of their place of birth. The Court awarded each of the girls $8 000 for the damages they had suffered and ordered the government to circulate the sentence publicly and to offer a public apology to the victims. The Court also ordered the Dominican Government to institute a broad range of institutional reforms relating to nationality and access to education to ensure non-repetition of the violation. This case note was prepared by David C. Baluarte24

23 Case no. 12.189, 8 Sept. 2005. For full Spanish text of decision, see: http://www.corteidh.or.cr/seriec/seriec_130_esp.doc 24 Staff Attorney, Center for Justice and International Law (CEJIL).

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ROUND-UP OF RECENT DECISIONS IN ESC RIGHTS CASES Inheritance rights/discrimination - In Gory v. Kolver NO & Ors.,25 Hartzenburg J in the Pretoria High Court declared Section 1(1) of the Intestate Succession Act 81 of 1987, which excludes reference to same-sex life partners, to be inconsistent with the South African constitution. Section 1(1) provides that, where a person dies intestate, their surviving ‘spouse’ shall inherit the intestate estate. The applicant (the survivor of a same-sex partnership) sought, inter alia, to have the words “or partner in a same sex partnership in which the partners have undertaken reciprocal duties of support” read into the section, after the word ‘spouse’. Referring to previous judicial decisions holding that same-sex life partnerships deserve the same protection as heterosexual marriages, the Court held the applicant had been discriminated against on the ground of sexual orientation and granted the relief sought. The order will only have prospective effect. Roma/housing rights - In European Roma Rights Centre v. Italy,26 the ERRC alleged that Roma in Italy are denied an effective right to housing in violation of Article 31 of the Revised European Social Charter (RESC)). They also alleged that segregationist policies and practices in the housing field constituted racial discrimination contrary to Article 31 read alone or in conjunction with Article E RESC (principle of non-discrimination). The Committee of Social Rights considered that the complaint raised three specific issues and made the following findings regarding them. It held that the insufficiency and inadequacy of camping sites for Itinerant Roma constituted a violation of Article 31(1) (States Parties’ duty to promote access to housing of an adequate standard) taken with Article E. Second, the systematic forced evictions of Roma from sites/ dwellings unlawfully occupied by them constituted a violation of Article 31(2) (State Parties’ duty to prevent and reduce homelessness with a view to its gradual elimination) taken together with Article E. Finally, the Committee held that the lack of permanent dwellings of an acceptable quality to meet the needs of Roma wishing to settle constituted a violation of Articles 31(1) and 31(3) (States Parties’ duty to make the price of housing accessible to those without adequate resources) taken together with Article E. 25 Case no. 4928/2005, 31 Mar. 2006. For full text of decision, see: http://www.constitutionalcourt.org.za 26 Complaint no. 27/2004, 7 Dec. 2005. For full text of decision, see: http://www.coe.int/t/e/human_rights/esc/4_collective_complaints/list_of_collective_complaints

A CASE TO WATCH On 3 March 2006, in City of Johannesburg v. Rand Properties & Ors.27 the High Court of South Africa ruled that the City of Johannesburg’s housing programme failed to comply with Section 26 of the South African Constitution, which provides for the right to have access to adequate housing. This violation was due to the City’s failure to provide suitable relief for, and to give adequate priority and resources to, the inner city poor living in a crisis situation or otherwise in desperate need of accommodation. The case was brought against the Municipality by over 300 residents of 6 properties in inner city Johannesburg who were threatened with eviction due to ‘health and safety’ concerns. Judge Jajbhay ordered the city to devise and implement a comprehensive and coordinated programme to progressively realise the right “to adequate housing [sic.]” of people living in the inner city of Johannesburg who are in desperate need of accommodation. The Judge dismissed the eviction applications brought by the City against the residents. He also interdicted the City from evicting or seeking to evict the residents until adequate alternative accommodation in the inner city area had been provided. The City of Johannesburg has been granted leave to appeal to the Supreme Court of Appeal. The City argues that Judge Jajbhay failed to accord the correct degree of deference to the manner in which the City can exercise its powers under the Building Standards Act (which was one of the legislative bases upon which the City sought to justify the evictions). In addition, the residents, represented by the Centre on Applied Legal Studies and the Wits Law Clinic, have been granted leave to cross-appeal the Judge’s decision not to rule on the constitutionality of Section 12 (4) (b) of the Buildings Standards Act. The residents are also seeking a structural interdict requiring the City to submit a reformulated housing programme, as well as other ancillary relief. By Deanna Fowler28 27 Joint case nos.: 04/10330; 04/10331; 04/10332; 04.10333; 04.24101; 04/13835. For full text, see: http://www.law.wits.ac.za/cals/Inner%20City%20Judgement%20-%203%20March%202006.pdf 28 Research Coordinator of COHRE Global Forced Evictions Programme.

HOUSING AND ESC RIGHTS LAW

QUARTERLY

The Editorial Board of the Housing and ESC Rights Law Quarterly is: • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Malcolm Langford, Senior Legal Ofﬁcer, ESC Rights Litigation Programme; • Professor Sandra Liebenberg, Chair in Human Rights Law, Stellenbosch University, South Africa; • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, Economic, Social and Cultural Rights Programme, CELS, Argentina; • Bret Thiele, Coordinator, ESC Rights Litigation Programme. Coordinating Editor: • Aoife Nolan, Senior Legal Ofﬁcer, ESC Rights Litigation Programme.

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 information about the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

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