COHRE Human Rights & Law Vol7

Housing and ESC Rights Law

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Vol. 7 - No. 3 September 2010

Q ua r t erly

National and international legal developments on housing and economic, social and cultural rights for human rights advocates and activists.

Centre on Housing Rights and Evictions (COHRE) v. Sudan:

Applying The African Charter on Human and Peoples’ Rights to Atrocities in Darfur

by Bret Thiele1

Introduction In July 2010, the Assembly of Heads of State of the African Union made public the decision of the African Commission on Human and Peoples’ Rights in the case of Centre on Housing Rights and Evictions v. Sudan (COHRE v. Sudan). The decision looks not only at violations of the right to life and to be free from torture, but also examines violations of economic, social and cultural rights in the context of massive crimes against humanity.

Key aims of the case were to: (1) prevent, halt and remedy the violations of the African Charter in the Bret Thiele is the Senior Expert – Litigation & Legal Advocacy at the Centre on Housing Rights and Evictions (COHRE) and was the lawyer in COHRE v. Sudan.

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This decision is groundbreaking for several reasons.

First and foremost, it is a decisive analysis and conclusion of an African human rights mechanism enforcing an African human rights instrument against Sudan for human rights violations in

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2 • Summary

• Applying The African Charter on Human and Peoples’ Rights to Atrocities in Darfur

context of the violations in Darfur; (2) ensure that an African mechanism applied an African human rights instrument to human rights violations in Darfur; and (3) expand the jurisprudence of the African Charter in areas that are underdeveloped, in particular those dealing with economic, social and cultural rights.

9 • Case to Watch - Israel: Concluding Observations of the Human Rights Committee

10 • Case to Watch - Case of Dokić v.

Bosnia and Herzegovina, European Court of Human Rights, Application No. 6518/04, judgment of 27 May 2010-07-13

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Summary This edition of the Quarterly opens with an article on a groundbreaking decision of the African Commission on Human and Peoples’ Rights dealing with the atrocities in Darfur.

The case, Centre on Housing Rights and Eviction (COHRE) v. Sudan, was the first time an African human rights mechanism enforced an African human rights instrument in the context of Darfur. The decision also advanced jurisprudence on the right to adequate housing, the right to water and sanitation, the right to economic, social and cultural development, and the issue of remedies for human rights violations.

Following this article is a case note on the recent periodic review of Israel under the International Covenant on Civil and Political Rights, in which the UN Human Rights Committee expanded on its housing rights jurisprudence and opined for the first time on violations of the Covenant in the context of denial of access to water and sanitation.

Finally, the case of Dokić v. Bosnia and Herzegovina is covered, which deals with a housing restitution claim before the European Court of Human Rights in the context of Bosnia and Herzegovina. There the Court found a violation of Article 1 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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

>> the Darfur region – a decision that calls for specific remedies. Beyond that, the decision includes several advances in the jurisprudence under the African Charter on Human and Peoples’ Rights. First, it provides further elaboration on the right to adequate housing, including the prohibition on forced eviction. Second, it reaffirms and elaborates on the right to water as an implicit right under the African Charter. It also provides seminal jurisprudence on the right to water and the right of peoples to their economic, social and cultural development. Finally, as to remedies, it includes the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (the “Pinheiro Principles”) as explicit remedies for relevant violations of the Charter.

The case was joined with a case brought by the Sudan Human Rights Organisation, but the applicants in that case failed to appear before the Commission on the merits. Consequently, only the COHRE v. Sudan case was considered and decided on the merits.

Decision on Admissibility: The Context of Crimes Against Humanity The Republic of Sudan first tried to challenge the case on admissibility, arguing that COHRE failed to resort to “existing legal, judicial or administrative means within the Respondent State to address the allegations.”2 The Republic of Sudan also argued that the case had been settled by other international mechanisms and as such is inadmissible. In making this argument, Sudan referenced UN Security Council resolutions 1509, 1591 and 1592, which concerned the situation in Darfur. It also referenced resolution 2005/82, adopted by the UN Commission on Human Rights in April 2005, which assigned a Special Rapporteur on the situation of human rights in Sudan.

In a supplementary brief on admissibility filed in March 2006, COHRE argued that the case fit under the exemptions to the general rule of exhaustion of domestic remedies as such remedies were not available, not effective and not sufficient, since they offered little prospect of success. COHRE pointed out that cases prosecuted before the Special Criminal Court on the events in Darfur “did not reflect the major crimes committed during the height of the Darfur crisis” and “only one of the cases involved charges brought against a high-ranking official and

279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 75.

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he was acquitted.”3 COHRE argued that the domestic tribunals cited by Sudan were “doomed to failure” because they lack “serious legal reforms ensuring independence of the judiciary.” It was also argued that due to the “serious, massive and systematic” nature of the violations by Sudan, such violations are incapable of being remedied by domestic remedies that have an individual focus.

Finally, COHRE relied on the very resolution of the UN Commission on Human Rights that the Government of Sudan’s lawyers referred to, which made clear that “domestic remedies are ineffective and insufficient in preventing, halting or remedying the forced evictions and accompanying human rights violations in Darfur.”4 It was also argued that while international mechanisms were rightly dealing with the atrocities in Darfur, none were looking with specificity at violations of the African Charter but rather were focused on ending the crisis. COHRE’s complaint before the African Commission sought to not only prevent and halt violations of the Charter, but to remedy the violations that had already occurred.

The African Commission ruled in July 2006 that COHRE v. Sudan was indeed admissible. In doing so, it concluded that while a complainant generally can not simply assert that domestic remedies are ineffective and insufficient, but rather had to demonstrate that fact by attempting to access those remedies, it was clear that this rule did not apply in this specific case. Citing its jurisprudence in Free Legal Assistance Group, Lawyers Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehobah v. Zaire5 and Malawi African Association and Others v. Mauritania,6 the Commission ruled that in cases “where there are a large number of individual victims” and “due to the seriousness of the human rights situation as well as the great number of people involved, such remedies as might theoretically exist in the domestic courts are as a practical matter unavailable.”7 The Commission held that the situation in Darfur was analogous as “tens of thousands of people have allegedly been forcibly evicted and their Centre on Housing Rights and Evictions (COHRE), Supplementary Brief on Admissibility Pursuant to Article 56 of the African Charter on Human and Peoples’ Rights, ACHPR/LPROT/COMM/296/05/SUD/RE. 4 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 86.

5 African Commission on Human and Peoples’ Rights, Free Legal Assistance Group, Lawyers Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehobah v. Zaire, Communications 25/89, 47/90, 56/91 and 100/93 (1997).

6 African Commission on Human and Peoples’ Rights, Malawi African Association and Others v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98 (2000).

7 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 97.

properties destroyed” and thus it was “impracticable and undesirable to expect these victims to exhaust the remedies claimed by the State to be available.”8 With respect to the matter being settled by other international mechanisms, the Commission recalled that to satisfy this defence it had to be demonstrated that the nature of the remedies or relief granted by the international mechanism was satisfactory to render the complaint res judicata. While recognising the important role played by the UN Security Council and the UN Commission on Human Rights in the Darfur crisis, the African Commission was of the “firm view that these organs are not the mechanisms envisaged under Article 56(7)” of the African Charter as those mechanisms must be able to grant “declaratory or compensatory relief to victims, not mere political resolutions and declarations.”9

Decision on the Merits: Expanding the Jurisprudence of the African Charter COHRE argued violations of the right to life and integrity of the person (Article 4), the right to the respect of the dignity inherent in a human being, including the right to be free from torture and other cruel, inhuman or degrading treatment (Article 5), the right to liberty and to the security of her or his person (Article 6), the right to have her or his cause heard (Article 7), the right to freedom of movement and residence (Article 12(1)), the right to property (Article 14), the right to adequate housing, including the prohibition on forced eviction (as implicit in Articles 14, 16 and 18(1)), the right to water (as implicit in Articles 4, 16 and 22), and the right of all peoples to their economic, social and cultural development (Article 22).

Ultimately, the African Commission held that the Republic of Sudan had indeed violated all of the Articles alleged to have been violated. In doing so, the Commission expanded its jurisprudence in several key areas of the law.

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279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 101.

9 Id. at para. 105.

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The Right to Adequate Housing and an Expanded Jurisprudence on the Prohibition on Forced Eviction: Articles 4 and 5 Under Articles 4 (right to life) and 5 (right to the respect of the dignity inherent in a human being, including the right to be free from torture and other cruel, inhuman or degrading treatment), the Commission examined allegations of large-scale and indiscriminate killings, torture, poisoning of wells, rape, forced evictions and displacement and destruction of property. While the Commission ultimately found violations in all these areas, the area of forced eviction lead to an expansion of the Commission’s earlier jurisprudence on this topic under the implied right to adequate housing in Articles 14, 16 and 18(1) that came out of the SERAC and CESR v. Nigeria case.

The Commission reaffirmed, as COHRE argued, its jurisprudence in SERAC and CESR v. Nigeria that the African Charter guaranteed an implicit right to adequate housing in Article 14 (right to property), Article 16 (right to best attainable state of physical and mental health) and Article 18(1) (rights of the family).

In doing so, however, the Commission provided more clarity on the right to adequate housing and the prohibition on forced eviction in particular.

In the present case, COHRE argued that forced eviction in this context not only amounted to a violation of the implied right to adequate housing, but also rose to a violation of Article 4 (integrity of the person) and Article 5 (prohibition on cruel, inhuman or degrading treatment or punishment). The Commission agreed, finding that “the Respondent State and its agents, the Janjawid militia, actively participated in the forced eviction of the civilian population from their homes and villages” and that it “failed to protect the victims against the said violations.” The Commission held that “this kind of treatment was cruel and inhuman and threatened the very essence of human dignity.”10 Regarding the obligation to protect, the African Commission relied on comparative jurisprudence from the Committee Against Torture in the Hijrizi v.

Yugoslavia11 case and the European Court of Human Rights in the cases of Selcuk and Asker v. Turkey.12 The African Commission agreed “that forced evictions and destruction of housing carried out by non-state actors amounts to cruel, inhuman and degrading treatment or punishment, if the State fails to protect

the victims from such a violation of their human rights.” While noting the difficult context of Darfur, the Commission went on to rely on the European Court’s jurisprudence in Asker v. Turkey to the effect that “even in the most difficult circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.”13 The Commission held that “the Respondent State did not act diligently to protect the civilian population in Darfur against the violations perpetrated by its forces, or by third parties” and “failed in its duty to provide immediate remedies to victims.” Consequently, the Commission held that Sudan “violated Articles 4 and 5 of the African Charter.”14

The Right to Return and the Right to Restitution of Housing and Land The African Commission examined the right to property, guaranteed by Article 14 of the Charter, in the context of forced eviction. In doing so, it also looked at the UN Principles on Housing and Property Restitution in the Context of the Return of Refugees and Displaced Persons (the “Pinheiro Principles”)15 as a means by which to specifically remedy violations of Article 14 in such a context.

The Commission noted that the right to property has been applied to two general situations. The first is where the right provides for the principle of ownership and peaceful enjoyment of property.

The second lays out processes to be followed when the State expropriates property in accordance with the public interest. In the present case, the African Commission had to examine the application of Article 14 to the destruction of property by military forces and armed groups, acting on their own or believed to be supported by the State.

The Commission first analyzed the right to property in this context by looking at the jurisprudence of the European Court, in particular its jurisprudence under Article 1 (obligation to respect human rights), Article 6 (right to a fair hearing), and Article 8 (right to respect for family life and the home) of the European Convention on Human Rights and Fundamental

European Court of Human Rights, Selcuk and Asker v. Turkey, Judgment of 24 April 1998, Reports 1998-II, p. 900, paras. 27-30.

14 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 168.

15 UN Sub-Commission on the Promotion and Protection of Human Rights, UN Principles Housing and Property Restitution in the Context of the Return of Refugees and Displaced Persons (the “Pinheiro Principles”), UN Doc. E/CN.4/Sub.2/2005/17 (28 June 2005).

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279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 164.

11 Committee Against Torture, Hijrizi v. Yugoslavia, Communication No. 161/2000: Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2 December 2002).

12 European Court of Human Rights, Selcuk an dAsker v. Turkey, Judgment of 24 April 1998.

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Freedoms (European Convention) as well as Article 1 of Protocol 1 to the European Convention (right to peaceful enjoyment of possession). The Commission was persuaded by the analysis in Dogan and Others v. Turkey,16 in which the European Court considered forced evictions and destruction of housing in the context of the fighting between Turkish forces and the PKK insurgency. Even in that context of generalized violence and where the owners did not have legal title to their homes, the European Court found a violation of Article 1 of Protocol 1 to the European Convention on account of the destruction of the housing units and their contents, which were possessions even if the land on which they sat was not legally owned by the victims.

The African Commission then went on to find the case of Akdivar and Others v. Turkey17 to be particularly persuasive and analogous to the situation in Darfur. In Akdivar, the European Court examined forced evictions and destruction of housing that occurred in the same conflict between Turkish and PKK forces. There, the European Court found Turkey to be responsible for violations perpetrated by both its own forces and the rebel forces because it has the obligations to both respect and protect human rights.

The Commission found that Sudan “failed to show that it refrained from forced eviction or the demolition of houses and other property, and that it did not take steps to protect the victims from the constant attacks and bombings, and the rampaging attacks by the Janjaweed militia.” The Commission went on to hold that “it doesn’t matter whether they had legal titles to the land, the fact that the victims cannot derive their livelihood from what they possessed for generations means they have been deprived of the use of their property under conditions which are not permitted

by Article 14.”18 Finally, the Commission referred to the Pinheiro Principles as “emerging principles in international human rights jurisprudence” that, when “read together with the decisions of regional bodies, such as the citied European court decisions” provide “great persuasive value … to interpret the right to property under Article 14 of the African Charter.”19

Dogan and others v. Turkey, European Court of Human Rights, Applications nos. 8803-8811/02, 8813/02 and 8815-8819/02, Judgement of 29 June 2004.

17 Akdivar and other v. Turkey, European Court of Human Rights, App. no.

00021893/93, Judgment 16 September 1996.

18 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 205.

19 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 204 (the African Commission explicitly mentions Principles 5.3 and 5.4 which state, respectively: 16

Right to water In its brief on the merits, COHRE argued that the right to water was implicitly guaranteed by Articles 4, 16 and 22 of the African Charter. Relying on the jurisprudence in SERAC and CESR v. Nigeria20 of 2002, in which the Commission found an implicit right to food, COHRE asserted that a similar analysis should be applied to find an implicit right to water, particularly since the adoption of General Comment No. 15 of the Committee on Economic, Social and Cultural Rights on the right to water subsequent to the SERAC and CESR v.

Nigeria decision provides clarity on the content of the right to water under international law.

In jurisprudence on the right to water, the Commission expanded on its earlier holding in Free Legal Assistance Group and Others v. Zaire, in which it found that failure to provide basic services such as safe drinking water and electricity constituted a violation of the right to health enshrined in Article 16 of the Charter. In the present case, the Commission looked at the obligations to respect and to protect and held that “the destruction of homes, livestock and farms as well as the poisoning of water sources, such as wells” amounted to a violation of Article 16.21 In doing so, the Commission referred to General Comment No. 14 of the Committee on Economic, Social and Cultural Rights, which sets out that “the right to health extends not only to timely and appropriate health care but also to the underlying determinants of health, such as, access to safe and portable water, an adequate supply of safe food, nutrition, and housing….” The Commission also referred to the obligations explicit in General Comment No. 14 to respect, to protect and to fulfil the right to the highest attainable standard of health. Regarding the obligations to respect and to protect, the Commission noted that “violations of the right to health can occur through the direct action of States or other entities insufficiently regulated

by States” and that “States should … refrain from unlawfully polluting air, water and soil, ... during

States shall prohibit forced eviction, demolition of houses and destruction of agricultural areas and the arbitrary confiscation or expropriation of lands as a punitive measure or as a means or method of war (Principles 5.3).

States shall take steps to ensure that no one is subjected to displacement by either State or non-State actors. States shall also ensure that individuals, corporations, and other entities within their legal jurisdiction or effective control refrain fro carrying out or otherwise participating in displacement (Principle 5.4)..

20 African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights – Nigeria (27 May 2002), Fifteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2001-2002, Done at the 31st Ordinary Session of the African Commission held from 2nd to 16th May 2002 in Pretoria, South Africa.

21 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 212.

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armed conflicts” and “should also ensure that third parties do not limit people’s access to health-related … services” and that “failure to enact or enforce laws to prevent the pollution of water [violated the right to health].”22

Right of all peoples to their economic, social and cultural development

The African Commission also issued seminal jurisprudence under Article 22, which guarantees the right of all peoples to their economic, social and cultural development. Article 22 states that: All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.23 The Commission noted that Article 22 bestows a collective right on a people, and thus the first part of any analysis was to determine whether the victims constitute a “people” within the context of the African Charter. The Commission acknowledged that in attempting to interpret the content of a “peoples’ rights,” that the “jurisprudence in the area is still very fluid.”24 But it also acknowledged that “in defining the content of the peoples’ rights, or the definition of ‘a people,’ it is making a contribution to Africa’s acceptance of its diversity.”25 The Commission recognised that “an important aspect of this process of defining ‘a people’ is the characteristics, which a particular people may use to identify themselves, through the principle of self identification, or be used by other people to identify them.”26 The characteristics identified by the Commission included race, ethnicity, language, religion, culture, the territory they occupy in a States, common history, and ethno-anthropological factors.27

279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 210.

23 African [Banjul] Charter on Human and Peoples’ Rights, Art. 22, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.

24 279/03 – Sudan Human Rights Organisation & 296/2005 – Centre on Housing Rights and Evictions/The Sudan, ACHPR/LPROT/COMM/279/03 & 296/05/674.09 (29 July 2009), at para. 220.

25 Id. 26 Id. 27 See, id.

The Commission opined that “it is unfortunate that Africa tends to deny the existence of the concept of a ‘people’ because of its tragic history of racial and ethnic bigotry by the dominant racial groups during the colonial and apartheid rule” but went on to say that it “believes that racial and ethnic diversity on the continent contributes to the rich cultural diversity which is a cause for celebration” and should not be “seen as a source of conflict.” The Commission recalled that Article 19 of the African Charter “recognised the right of all people to equality, to enjoy same rights, and that nothing shall justify a domination of a people by another.”28 A school of thought that held that the “right of a people” in Africa can be asserted only vis-à-vis external aggression, oppression or colonisation was challenged by the Commission. In its view, the African Charter was adopted to protect human and peoples’ rights against both external and internal abuse.29 The Commission held that Article 2 and 19 of the Charter make it clear that the Charter “protects the rights of every individual and peoples of every race, ethnicity, religion and other social origins.”30 It went on to find that “that the people of Darfur in their collective are ‘a people,’ as described under Article 19” and that the Republic of Sudan “while fighting the armed conflict, targeted the civilian population, instead of the combatants,” which amounts to “a form of collective punishment, which is prohibited by international law.”31 The Commission found “the attacks and forced displacement of Darfurian people denied them the opportunity to engage in economic, social and cultural activities,” that “the displacement interfered with the right to education for their children and pursuit of other activities,” and that “instead of deploying its resources to address the marginalisation in the Darfur, which was the main cause of the conflict, the Respondent State instead unleashed a punitive military campaign which constituted a massive violation of not only the economic, social and cultural rights, but other individual rights of the Darfurian people.”32 Consequently it held there was a violation of Article 22 of the African Charter.

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Id. at para. 221.

See, id. at para. 222.

30 Id. at para. 223.

31 Id. 32 Id. 28 29

Remedies

Conclusion

In addition to referring to the Pinheiro Principles, the Commission also called for other specific remedies.

These remedies included not only a call for Sudan to “take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur Region” and to “take steps to prosecute those responsible for the human rights violations”, but also to “rehabilitate economic and social infrastructure, such as education, health, water, and agricultural services, in the Darfur provinces in order to provide conditions for return in safety and dignity for the IDPs and Refugees” and to “establish a National Reconciliation Forum to address the long-term sources of conflict, equitable allocation of national resources to the various provinces, including affirmative action for Darfur, resolve issues of land, grazing and water rights, including destocking of livestock.”33

With COHRE v. Sudan, the African Commission has provided further clarity on the content of several explicit and implicit rights in the African Charter on Human and Peoples’ Rights. This clarity includes a more concrete analysis of the prohibition on forced evictions based on international human rights norms as well as the right to water under the African Charter.

The jurisprudence on Article 22 demonstrates for the first time the scope of the right of all peoples to their economic, social and cultural development. With this decision, advocates now have a firmer foundation to litigate economic, social and cultural rights on the African continent, as well as to create persuasive jurisprudence that can be used in domestic litigation and as comparative examples that can further the protection of economic, social and cultural rights the world over.

Id. at para. 229.

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CASE NOTE Israel: Concluding Observations of the Human Rights Committee In July 2010, the Human Rights Committee considered the periodic report of Israel under the International Covenant on Civil and Political Rights. In its Concluding Observations, the violations identified by the Committee include forced evictions of Palestinians from their homes, the demolition of Palestinian homes, and denying Palestinians access to safe drinking water and sanitation. In addition to violations of Article 17 (inviolability of the home), the Committee found that the Israeli violations of Palestinian’s housing rights, including forced evictions and house demolitions in Gaza, the West Bank and East Jerusalem, amounted to cruel, inhuman and degrading treatment (Article 7).

For the first time ever, the Human Rights Committee also addressed denial of access to water and sanitation

Case Note by Bret Thiele

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as violations of the International Covenant on Civil and Political Rights, finding that, in the case of Israel, they amounted to violations of the right to life (Article 6) and the right to equal protection under the law (Article 26). The Human Rights Committee also found that Israeli violations of housing rights and its denial of access to water and sanitation by the Bedouin communities in the Negev region amounted to violations of the right of communities to enjoy their own culture (Article 27). One consequence of this jurisprudence is that the Human Rights Committee, because of its serious application of the principle of the indivisibility of human rights, is now another avenue for the legal enforcement of violations of the right to water and sanitation.

CASE NOTE Case of Dokić v. Bosnia and Herzegovina, European Court of Human Rights, Application No. 6518/04, judgment of 27 May 2010-07-13 The case of Dokić. v. Bosnia and Herzegovina dealt with restitution of social occupancy rights. Just prior to the conflict that began in Bosnia and Herzegovina in 1992, Mr. Dokić entered into purchase agreement to be allocated a military flat in Sarajevo. The agreement would provide security of tenure as an occupancy rights holder of social housing. Under the law at that time, occupancy rights holders were allowed permanent possession of housing that could be transferred to family upon death of the occupancy rights holder. At the commencement of hostilities, however, the transfer of title never occurred and Mr. Dokić, who was of Serb nationality, left Bosnia and Herzegovina for Serbia. After the conflict, he sought restitution of the tenancy rights to his flat.

The European Court found a violation of Article 1 of Protocol 1 to the European Convention. In doing so, the Court recalled its previous Article 1 of Protocol 1 jurisprudence and found that while the failure to transfer title resulted in a taking of a property right from the applicant, this taking was done in the public interest of supplying housing to persons displaced by hostilities. The Court, however, found that the applicant was denied just and fair compensation for his loss and thus the action was in violation of Article 1 of Protocol 1.

The European Court referred to the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (the “Pinheiro Principles”) as a relevant international document in considering the case.

Case Note by Bret Thiele

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

Salih Booker, Executive Director, Centre on Housing Rights and Evictions (COHRE), Switzerland; Eliane Drakopoulos, Director of Communications, 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.

Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; Julieta Rossi, Director, ESCR-Net, USA; Bret Thiele, Senior Expert – Litigation and Legal Advocacy, COHRE, Switzerland.

Coordinating Editor: Bret Thiele, Senior Expert – Litigation and Legal Advocacy, COHRE, 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 and Legal Advocacy Initiative, please contact: litigation@ cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE Litigation and Legal Advocacy Initiative Rue de Montbrillant 83 1202 Geneva Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: Litigation@cohre.org,

Quarterly@cohre.org web: http://www.cohre.org H o u sin g and E S C R i g hts L aw Q ua r t e r ly