International law recognises that constitutional protection is one of the most effective means by which to guarantee rights, including the right to adequate housing. Approximately 40 per cent of the world countries, representing various legal, social and cultural traditions, have indeed enshrined the right to adequate housing in their respective constitutions (see table 1).
Constitutional protection of housing rights provides one of the strongest national statements with respect to those rights. Furthermore, it also provides valuable tools for those wishing to enforce housing rights. On one level, establishing clear norms at the national level with regard to housing rights in and of itself may serve as an important agent of social change, by raising the profile of housing issues and introducing ‘housing rights’ language. From a legal standpoint, constitutional clauses can not only be enforced in their own right. They can also be used to interpret and define housing rights embodied in national legislation and regulations. Furthermore, sound constitutional clauses, particularly those informed by international human rights law, will help ensure that retrogressive or other harmful legislation will not be adopted.
Alternatively, if adopted, it helps ensuring that they can be challenged and overturned in the judicial arena.
The Constitution of South Africa (see box 1) provides one of the best examples of a State incorporating its international human rights obligations into its constitution. Article 26 of the Constitution contains provisions closely mirroring the right to adequate housing as articulated in Article 11(1) of the ICESCR – including, in paragraph 3, the prohibition of forced eviction. This close parallel between national and international law also helps to ensure that interpretations of housing rights at the international level may more directly affect the interpretation of these rights at the national level. As the language so closely mirrors international law, this may suggest that international legal interpretations of this same language may carry more weight at the national level than it otherwise might. Indeed, the Supreme Court of South Africa did just that in the Grootboom case (sub-chapter V.F below).
Table 1. Countries with constitutions containing reference to housing rights Afghanistan
Source: UN-HABITAT, 2002c (which contain relevant excerpts from the constitutions of all countries listed above).
With respect to children, Article 28 of the constitution provides further guarantees in line with the Convention on the Rights of the Child (see box 1).
South Africa thus provides an example of how constitutional clauses can be crafted to create pre-eminent protection of housing rights. South Africa’s constitutional protections not only impact all subordinate laws such as legislation and regulations, but offer the bearers of the constitutional Box 1. South Africa: Constitution (1996)
Article 26. Housing
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
Article 28. Children
(1) Every child has the right - to … shelter….
Box 2. Argentina: Constitution (1994) Article 14bis
The State shall grant the benefits of social security, which shall be comprehensive and unwaivable. In particular, the law shall establish: ... access to decent housing.
Article 75
The Congress shall have the power:
22. To approve or reject treaties entered with other nations and with international organizations, and concordats with the Holy See. Treaties and concordats have a higher standing than laws.
The following [international instruments], under the conditions under which they are in force, stand on the same level as the Constitution, [but] do not repeal any article in the First Part of this Constitution, and must be understood as complementary of the rights and guarantees recognized therein: the American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights;
the International Covenant on Civil and Political Rights and its Optional Protocol; the [International] Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishment; the Convention on the Rights of the Child.
Source: Translation by Jonathan M. Miller and Fan-Lian Liao, in Flanz, (ed.), 1999a.
protections and their advocates the tools necessary to enforce their housing rights.2
The Constitution of Argentina (see box 2) provides one of the best examples of how a State has not only constitutionally protected the right to adequate housing, but has explicitly mandated that international human rights instruments be relied upon in order to interpret the meaning of that right. Such general constitutional clauses that explicitly give pre-eminent constitutional force to a State’s international human rights obligations are very important.
They have the result that all the various international housing rights, and indeed all human rights, impact upon the interpretation of subordinate national law,
2. For an example of such enforcement, see the analysis of the Grootboom case in section V.F. More elaborate excerpts from this case can be found in UN-HABITAT, 2002a.
Box 3. Portugal: Constitution (1976, fourth revision based on Constitutional Law No. 1/97 of 20 September 1997)
Article 65. Housing and Urban Planning
(1) All have the right, both personally and for their family, to a dwelling of adequate size, that meets satisfactory standards of hygiene and comfort and preserves personal and family privacy.
(2) In order to ensure the right to housing, it is incumbent on the State to:
(a) draw up and implement a housing policy as part of general national planning and to support plans for urban areas that guarantee an adequate network of transport and social facilities;
(b) promote, in conjunction with local authorities, the construction of economic and social housing;
(c) promote private construction, when in the public interest, and access to privately owned or rented dwellings; and
(d) encourage and support the initiatives of local communities for the resolution of their housing problems and for promoting the establishment of housing cooperatives and their own building projects.
(3) The State shall adopt a policy for the institution of a system of rents that are compatible with family incomes and for individual ownership of housing.
(4) The State, the autonomous regions and the local authorities shall determine the regulation on occupancy, use and transformation of urban land, specifically by way of planning instruments, within the framework of laws relating to national planning and urban planning and shall compulsorily acquire such land as is necessary to satisfy the purposes of urban public utility.
(5) Interested parties shall be guaranteed participation in the drawing up of urban planning instruments and any other instruments for physical planning of the territory.
Source: Translation by Gisbert H. Flanz, in Flanz, (ed.), 1999b.
and thus provide valuable enforcement mechanisms. As such, similarly phrased constitutional clauses should be encouraged for inclusion into all constitutional frameworks as a means of bringing international human rights principles, standards and norms into domestic legislative interpretations and judicial analyses and opinions.
The Constitution of Portugal (see box 3) provides yet another good example of how a country has constitutionally protected the right to adequate housing. It also exemplifies how it delegates certain housing rights obligations to its domestic political organs. Additionally, this constitutional protection goes one step further by ensuring that housing rights are addressed and protected at the local level by making these right the prerogative of regional and local programmes. As such, the Portuguese Constitution allows for decentralisation while allowing for federal oversight to ensure that regional and local authorities abide by minimum housing rights standards.