The obligation to respect requires governments to refrain from interfering with people’s existing access to housing. One clear violation is forced evictions. Below is one of the many cases on this topic.

ASK (Ain o Salish Kendra) V. Government of Bangladesh (Supreme Court, 1999)

In Dhaka city, a large number of inhabitants of bastis, or informal settlements, were evicted without notice. Their homes were demolished with bulldozers. Two inhabitants and three NGOs lodged a complaint.

The Supreme Court recognised that such inhabitants are often the victims of misfortune and natural calamities, migrants who earlier fled from rural areas where employment opportunities, food or shelter were scarce. Slum dwellers also contributed significantly to the national economy.

Evictions had a severe impact on the right to livelihood. Noting Olga Tellis V. Bombay Municipality Corporation (Supreme Court of India), the court found that the right to livelihood could be derived from constitutional fundamental rights. These included the right to life, respect for dignity and equal protection of the law.

The State must also direct its policy towards ensuring the provision of the basic necessities of life, including shelter (see Constitution, Article.15): ‘Thus, our country is pledge-bound, within its economic capacity and in an attempt for development, to make an effective provision for the right to life, livelihood.’ etc. ‘While such State policies were not judicially enforceable (Article. 15 is only a directive principle), the right to life implied the right not to be deprived of a livelihood and shelter.

The Government effort to remove alleged ‘criminals’ through evictions meant that “innocent slum dwellers (had) become victims of repression/oppression not only by mastans and terrorists (sic), but sometimes through government agencies.”

The court ordered that:

• The Government should develop master guidelines, or pilot projects, for the resettlement of the slum dwellers;
• The plan should allow evictions to occur in phases and according to a person’s ability to find alternative accommodation
• Reasonable time is to be given before the eviction, and
• For security reasons, slums along railway lines and roadsides should be cleared but inhabitants should be resettled elsewhere according to the guidelines.

The obligation to protect means ensuring individuals and communities do not suffer from violations of housing rights by non-state actors. Violations must be investigated, perpetrators prosecuted and legal and other remedies provided to victims.

SERAC and CESR v. Nigeria

Oil reserves in Ogoniland were being exploited by a consortium consisting of a subsidiary of the multinational Shell Oil Company and the State-owned Nigerian National Petroleum Company. After the murder of Ogoni activist Ken Saro-Wiwa, the activities surrounding oil production attracted international attention.

In 1996, two NGOs – the Nigerian-based Social and Economic Rights Action Centre (SERAC) and the US based Center for Economic and Social Rights (CESR) – filed a petition with the African Commission on Human and Peoples’ Rights alleging that: the oil consortium disposed of toxic waste in the environment, contaminating water, air, soil and crops; security forces – police, army, navy and air force, as well as unidentified gunmen – destroyed villages, crops and animals; security forces attacked villagers and executed Ogoni leaders; pollution had led to skin infections, gastrointestinal and respiratory ailments and increased risk of cancers, and malnutrition and starvation were widespread.

Drawing on international law, the African Commission pointed out that all human rights entail four general obligations: to respect, protect, promote and fulfil. The right to health (Article 16) and the right to a clean environment (Article 24) had been contravened. While the Government had the right to produce oil, it had failed to prevent pollution and ecological degradation. It should have: (i) ordered or permitted independent scientific studies prior to major industrial developments; (ii) monitored such activities; and (iii) provided information to affected communities and allowed them to participate in decisions.

The failure to monitor oil activities and involve local communities in decisions violated the State’s duty to protect its residents from exploitation (including foreign economic exploitation) and despoliation of their wealth and natural resources (Article 21). It was suggested that the failure to provide material benefits for the local population from the oil exploitation was also a violation.

The right to housing and protection from forced eviction was violated by the destruction of housing and the harassment of residents who had returned to rebuild their homes. The right is derived from express rights to property, health and family. Furthermore, the destruction and contamination of crops by Government and non-State actors violated the duty to respect and protect the implied right to food.

The Commission ordered that the government: cease attacks on Ogoni people, investigate and prosecute those responsible; provide compensation to victims; prepare environmental and social impact assessments in future; and provide information on health and environment risks.

States have an obligation to progressively realise the right of adequate housing by taking meaningful steps or measures towards the goal of achieving the full enjoyment of housing rights for all . The South African Constitutional Court said that the duty to take measures means:

• The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the Executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the State's obligations. The program must also be reasonably implemented.



• In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the program. The program must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A program that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the program will require continuous review.

Viceconte V. Ministry of Health and Social Welfare

The plaintiff, Mariela Viceconte, and the National Ombudsmen requested the court to order that the Argentine Government take protective measures against haemorrhagic fever, to produce the Candid-1 vaccine and to rehabilitate those environments where the disease was breeding.

The Federal Court of Appeals found that any individual could bring complaints concerning the right to health, due to the Constitution’s incorporation of international treaties referring to the right.

According to the court, the Government was legally obliged to intervene to provide health care when individuals and the private sector could not protect their health. In the case of Argentine haemorrhagic fever, this duty entailed the production of the Candid-1 vaccine. The court cited evidence from the government that (a) the fever was epidemic and endemic; (b) the Candid-1 vaccine was the most effective protection against the disease; (c) both the World Health Organisation and Argentina’s Minister of Health had previously endorsed Candid-1; (d) the stock of Candid-1 was insufficient; and (e) the disease was exclusive to Argentina, thereby making it an unattractive commercial proposition.

The Court found that the Government had not punctually fulfilled its obligations to produce the vaccine and made the Ministers of Health and Economy personally liable for its production with in a specified time schedule.