492 Current and Future Developments in Law, 2017, Vol.

1, 492-504

CHAPTER 26
Right to Housing: Between its Implementation and
its Mere Declaration
Boris Wilson Arias Lpez*
Constitutional Court of Bolivia, Sucre, Bolivia

Abstract: In this chapter, the right to housing and its enforceability will be discussed,
excluding the analysis of the enforcement of rights, economic, social and cultural rights
and then the law on the subject will be discussed. Finally, I observe the right to housing
in the context of freedom of contract.

Keywords: Economic, Enforceability, Right to housing, Social and Cultural

rights.
1. INTRODUCTION
The crisis of the real state agencies originated in the United States with high
risked mortgages (Subprime Credit) directed to debtors with low solvency who
could not pay, it generated one of the greatest financial crisis in the history of this
country, with the following fall of the constructions which causes unemployment
and the bankruptcy of different banks and Real State Agencies; moreover, there
are other problems such as the lack of houses due to natural disasters-
earthquakes, hurricanes, etc.- the victims of forced movements due to armed
conflicts- ex. Colombia- the migration from the countryside to the cities due to the
lack of jobs and poverty, these are the main reasons why millions of people end
up without a home or with houses that do not follow the minimum standards in
the subject.
It is clear that housing leads to social cohesion and the opposite generates
residential segregation between the poor neighbors and the rich neighbors mainly
in the cities, nationals and immigrants, in this last case to deepen the vulnerability
in front of the home owners for reasons of language, customs, the access to
justice, emphasizing that nowadays the only location of a house can lead to
*
Corresponding author Silvio Gambino: Letrado at Constitutional Court of Bolivia, Sucre, Bolivia; Tel: (+591)
72561268; E-mail: borisito55@hotmail.com

J. Alberto del Real Alcal (Ed)

All rights reserved- 2017 Bentham Science Publishers
Right to Housing Current and Future Developments in Law, Vol. 1 493

discriminatory processes, to the point that the social promotion is identified with
the change of a home, focusing on the ones who do not own a house, aspect that is
considered a factor of social exclusion.
Furthermore, the right to own a house is related to the transgression of the
property right and the rules of urbanization- ex. cities that grow within this
anomie-, so this way the overcrowding, the noise, the abandon, the lack of basic
services affect the development of the children and their capacity of acquiring,
developing inferiority feelings, besides other rights are violated such as the right
to free development of the personality, intimacy and definitely the right to
freedom; so that: the lack of proper housing threatens to mental and physical
health, while housing leads to the enjoyment and exercise of other rights, such as
the right to education, to health, the free development of the personality, also the
right to choose residency, right to privacy and familiar life and, similarly, it
makes it possible for people to carry out certain requirements such as to have a
home where to be located [1].
Even more, today it is urgent that the satisfaction of the right to housing
harmonizes with the right to clean environment referring to the materials used in
the constructions- so this can be biodegradable and the houses can use clean
energy- concerning to the growth and the expansion of the cities which generate
deforestation, waste and so on.
In this context, the current work starting from the essential configuration of the
right to housing, analyses some considerations concerning its enforceability and
implementation.
2. RIGHT TO HOUSING
The right to housing is well known in the international context for the big number
of International Treaties and soft law, for example, The Universal Declaration on
Human Rights (1948) [2]); The International Covenant on Economic, Social and
Cultural Rights (1966) [3]; International Convention on the Elimination of All
Forms of Racial Discrimination (1965) [4]; The Convention on the Elimination of
All Forms of Discrimination against Women (1979) [5]; Convention on the Rights
of the Child (1989) [6]; International Covenant on Civil and Political Rights
(1966) [7], International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (1990) [8]; Convention relating
to the Status of Refugees (1951) [9]; The Recommendation No. 115 of the OIT
(1961) [10]; Convention 169 concerning Indigenous and Tribal Peoples in
Independent Countries (1989) [11]; Convention 117 - Social Policy of the OIT
(1962) [12], The Committee on the Rights of Persons with Disabilities (2006)
[13], American Convention on Human Rights Pact of San Jose, Costa Rica
494 Current and Future Developments in Law, Vol. 1 Boris Wilson Arias Lpez

(1969) [14], The Declaration on the Right to Development (1986) [15], the basic
principles and guidelines concerning evictions and displacements originated by
the development, formulated according to the mandate of the special teller about
appropriate housing, The Principles about the Return of the Homes and the
Heritage of the Refugees and the displaced people denominated the Pinheiro
Principles (2005), in fact there has been organized two world summits about
human settlements, the Conference of Vancouver, denominated Hbitat I from
05/31/1976 to 06/11/1976 and the conference of Istanbul or Hbitat II from
06/03/96 to 06/14/96.
For some people the right to housing does not have autonomy, and they mention
that it comes out from other rights such as the dignity, the intimate, and the
freedom, which is why it has not been established in The International Covenant
on Economic, Social and Cultural Rights, but as a component of the right to life
according to art. 11.1 that clearly mentions The States Parties to the present
Covenant recognize everyones right to an adequate standard of living for himself
and his family, including adequate food, clothing and housing, and to the
continuous improvement of living conditions; however, the doctrine states that
the right to housing has full autonomy, as a right with its own content related to
the rest of the rights.
The right to housing covers the physical place where the people and families live
and this develops another term house, so this way The General Observation No
4 of the Committee of Economic, Social, and Cultural Rights stands: The
Committee suggests that State Parties do not interpret the right to housing in an
strict or restrictive manner such as the fact of having a roof over the head o ()
or as a conformity. However, it should be considered as a right to living in
security, peace, and dignity, and concerning the concept of adequate housing
at least they should follow the following specifications:
1. Legal Security in the property of the land and a house which can be individual,
collective, and communal, with the condition that it needs to have social
function emphasizing on the rights of the women.
There should be concerned that the right to housing is not synonym to the right
to property. In fact, the possession of the house can be the result of usufruct;
rental, etc. In general, it should be legally protected so that it will not result in
harassment, illegal evictions, etc.
Concerning the to the establishment of the indigenous, the Inter-American
Commission on Human Rights Resolution of August 31st 2001, in the case
Mayagna (Sumo) Awas Tingni Community a/ Nicaragua, referring to the
concessions that benefit to an enterprise to exploit 62000 has of jungle, the
mentioned resolution recognized the collective property of the jungle to the
Right to Housing Current and Future Developments in Law, Vol. 1 495

indigenous community, expressing: As the result of the customs, the

possession of the land should be enough so the indigenous communities that do
not have the property documents of the land, should obtain the official
recognition over the land and its later property registration, while the
resolution of June 15th 2005 in the case Moiwana a/ Suriname, about the attack
to the community by the army, case in which the survivors could not get back
their lands and follow their traditional life, the resolution stated that: The State
has neither established the conditions nor foreseen the mechanisms for the
communities to return to their traditional lands in a secure way and with
dignity, emphasizing that these communities depend on their land and they are
especially close to it.
At the same time the African Commission on Human Rights was aware of two
NGOs sue, one of Nigeria (Action Center of ESCR) and another American
(Center for the ESCR) by the Ogony peoples who live in the delta of Niger
River, oil producer region, whose soil has been polluted by the Anglo-Dutch
Shell and Nigerian National Oil Company. The protests of the peoples were
repressed by the army, even though these peoples stated that the State should
compensate all the damages to the right to housing.
In this context the reflections made by Hernando De Soto, who pointed out that
poor people cannot produce profit since they have precarious property. In fact,
the lack of the documentation that can support their own property which does
not allow them for example to mortgage their properties and this way they can
have access to loans, so that the regularization of the right to housing would go
with the economic growth [16], recognizing that today the documents about
property over the land provide security to farmers, increase its value,
encourages public and private inversions, although the limitations about its
theory should be recognized, emphasizing that the causes of poverty cannot be
reduced to the informality of the right to property, this vision cannot be applied
to the indigenous people and the only right to property does not enable a bank
loan, but mainly people must have the ability to pay the debt.
2. An adequate housing is related to the availability of basic services such as
drinking water, sewerage, electricity, domestic gas, telecommunications, and
transportation.
3. The expenses that homes require should be affordable so that way the house
cannot affect other basic necessities.
4. The habitability, so this way the house can protect to the people from cold,
diseases, etc. In fact, a house is not livable when it does not adequate to the
necessities of the handicapped which causes promiscuity, lacking public
electricity, and/or lack of natural illumination; it lets the access of external
sounds and/or bad smells.
The European Tribunal on Human Rights, for example, through its Resolution
496 Current and Future Developments in Law, Vol. 1 Boris Wilson Arias Lpez

of December 9th, 1994 in the case Lpez Ostra a/ Espaa, determined that the
function of the plant waste treatment constructed with public subsidy, but it had
malfunctions which started to release gases, smoke, and bad smell causing
problems to the people who lived near, establishing that a serious pollution to
the environment can affect to the welfare of a person and prevent him
enjoyment of the house; even more, it attacks its private and familiar life
without risking his health
While in the case Moreno Gmez a/ Espaa, referring to a person who lived in
a residential area of Valencia where some pubs, discos, were established, the
sound caused by this new pubs caused trouble among neighbors. The European
Tribunal on Human Rights stated that the violations to the right to housing not
only were visible or material, but also incorporeal or intangible aggressions
such as sounds, emissions, smells, etc. The State did not adopt concrete
mechanisms in order to avoid the violations to the rights of the people who
lived in the area.
5. The accessibility to own a home mainly in vulnerable groups among them
young ones as result of their parents divorce, handicapped people, victims of
natural disasters, displaced ones, sick people, women mainly the ones who
suffer family violence, maids, street vendors, etc.
Referring to the women, the house should allow them the exercise of their right
to privacy and it should be secure enough. According to the General
Observation No 7 of the Committee on Economic, Social, and Cultural Rights
the ignorance of such requisites can lead to sexual aggressions and the lack of
housing and the fear to lose one can cause familiar violence. In this sense, The
womens rights to possess and have a land under their names are intrinsically
connected to the rights of exercising their individual freedom [17].
6. The localization of the house so that they cannot be exposed to landslides,
volcanoes, earthquakes, tsunamis, polluted areas, dangerous places, etc.
Nonetheless, these places should have access to parks, public transportation,
waste recollection, schools and jobs, aspects that are connected to the
obligation of the State to decentralize the public administration, departing
mainly from the idea that not everyone can live in the downtown part of the
city.
7. Cultural Adaptation
Finally, the General Observation No. 4 of the Committee on Economic, Social,
and Cultural Rights stated that it is important that the civil society takes part of the
design of public policies concerning housing so that the public policies can be
sustainable, participative, equitable, and productive.
Right to Housing Current and Future Developments in Law, Vol. 1 497

3. ENFORCEABILITY OF THE ECONOMIC, SOCIAL, AND CULTURAL

RIGHTS (ESCR) AND RIGHT TO HOUSING
Duguit made a difference between mandatory and directive (pragmatic norms),
which nature is not jurisdictional, but merely indicative since it requires to follow
all the legislative procedure, from which the economic, social, and cultural rights
would be undetermined judicial concepts, because it is the law maker the one
who determines its content and effects so this way . The specific difference of
the social rights seems to appear in the way that its objective is determined: the
State is in charge of the provision, and the way it is taken when there is violation
to these rights. All of fundamental rights have undetermined objective, but the
kind of indetermination is different from one another. In the social rights the
indetermination comes out when the provision does not clearly establish how the
law is accomplished. As a consequence, it does not appear specified what is
constitutionally contrary to what the law demands. In other words, it does not
appear how much the social right is violated. This peculiar indetermination of the
objective does not appear the same way in the rights to freedom, since in this last
ones the proper behavior is an abstention and the constitutionally contrary to the
right is any type of behavior [18], following this concept if the guarantees are
considered to implement the rights, the economic, social, and cultural rights
would be laws without guarantees.
Furthermore, it is stated that in the economic, social, and cultural rights is the law
maker who chooses the mechanisms to implement the law, with enough
discretion, so that the judges do not have the technical knowledge to choose such
means, so that: the tribunals do not have to be better related to all the principles
that the Constitution states. In fact, the Constitution can guarantee not only
individual classic rights, but also social rights, but a theorist can manifest that
a jurisdictional control under the social rights is not feasible with the argument
that the tribunals are not going to do a good job in comparison to the congress
[19]. Besides, the State and the public administration have human resources,
economically disadvantaged and the judges do not have to spend economic
resources on it.
It is important to mention that in order to protect civil and politic rights it is
important to have all the State apparatus and effective infrastructure in relation to
the use of economic resources- the function of the police to protect the right to
personal security or the cost of the elections related to politic rights- so that: If
we assume a general concept of provision, all the rights in function to positive
actions of the State, would be considered as benefits the State should provide to
the society; in short the right to benefit as a general concept [20].
498 Current and Future Developments in Law, Vol. 1 Boris Wilson Arias Lpez

Moreover, the rights to benefit increase the freedom and ensure it, so the debate
between equality and freedom is considered false. Besides, as a result equality
should be materialized and not merely formalized, so in fact the implementation
of the civic and politic rights following the interdependence principle of the rights
also depend on the implementation of the economic, social, and cultural rights.
It is important to consider that the configuration of the States as Social States
result in the flexibility of the limits between the organic and dogmatic part of the
Constitution, mainly because the implementation of the rights depend on the
institutional structure that can be enforced in the jurisdictional via. In fact, it is a
vital field not dominated by the citizen, but it essentially depends on the State
roles [21].
The committee on economic, social, and cultural rights manifested about the
obligation merging from the art. 2.1 of the International Covenant on Economic,
Social and Cultural Rights, expressed that .an State in which a big number of
people lack of food, special attention at hospitals, of housing and clothing, or the
basic principles of teaching, is not accomplishing its obligation as a State. If the
Convent would be interpreted in a way in which obligations cannot be
accomplished, it would be meaningless [22] and that: . When a right
recognized by the covenant cannot be fully exercised without the intervention of
the judicial power, it is necessary to establish jurisdictional resources [23],
referring to the right to hosing in the General Observation No 4, it was reminded
that the right to housing generates for the States and thereby for the Judicial
Branch positive obligations of provision such as the construction of public
houses or help in the rent of houses, negatives or of abstention such the
prohibition of forced evictions and the protection against third ones such as
banks, owners, and real state agencies.
Consequently, it is a mistake to state that the essential core of the right to housing
and its judicial protection depends on the legislative development. In fact, it is
present in the Constitutions and in international human rights treaties, recognizing
thereby to the Judicial Branch at least the following assumptions:
1. When there is positive legislation that develops the right to housing.
2. When there is no satisfaction it may put in risk other fundamental rights
(connectedness), so that the right to housing in this cases cannot depend on the
economic, social, financial, or cultural circumstances. It is the judicial
authorities role to provide efficiency in the implementation of the right to
housing.
Thus, it has to be considered the interdependence of the rights and the
systematic interpretation of the laws. For example, in the case the Government
Right to Housing Current and Future Developments in Law, Vol. 1 499

of the Republic of South Africa and others a/ Grootboom and others, referred to
illegal evicted occupants who built houses in the sports center, they did not
have basic services, hence the Supreme Court of South Africa established that
the State neither formulated nor ran programs related to housing that could
satisfy the needs of housing of the people, concluding that the illegal occupants
had the right to receive accommodation from the State.
While the Supreme Court of Argentina in a Complaint Resource Q.C.,S.Y. a/
Government of the city of Buenos Aires s/Protection, referred to a Bolivian
woman whose child suffered chronic encephalopathy who was living on the
streets. She was not able to work and overcome this problem, so all the
members of the Supreme Court understood that the Buenos Aires governments
social assistance was neither appropriate nor global to the situation and it was
stated that in a short or long term period the woman should overcome her
problems, referring to the mechanisms of protecting the right to housing stated
that: It is not about evaluating the amount of money that the State pays, and
based on the price end up its obligation, according to an standard of the
implementation of the rights, but mainly to value the quality in the adaptation
to the needs of the case: So that, the States inversion should be adequate,
which does not depend on the amount that is set, but mainly appropriate use of
the money to overcome this problem
3. The economic, social, and cultural rights and among them the right to housing
mainly conditions to the State, so the law cannot go against its implementation,
aspect to be related to the principle of progressivity and not regression so that
the government acts that can go back in the protection of the rights are not
admissible. Also the tribunals have the tuition to prevent inappropriate policies.
In fact, they have to lessen the policies that can affect the structure of the rights
or even palliate discrimination.
In this case the Resolution T-025/04 of the Colombian Constitutional Court
declared the unconstitutionality referring to the displaced people in Colombia,
emphasizing that the Law 387 from 1997 is applicable to this case: . The
lack of correlation between what the law states and the means to fulfill it, since
the problem of displacement has clearly increased, we have to consider the
insufficiency of the economic resources. In all, the magnitude of the problem
has to be analyzed from how is the institutions capacity to respond efficiently
to this problem.
4. The passiveness of the main branches in relation to economic, social, and
cultural rights which have been recognized constitutional can generate
unconstitutionality by omission. In fact, the Constitution stated the limit of the
States role in the liberal constitutionalism, nowadays the Social State promotes
the States role, so the State has to demonstrate efficiently satisfy the right to
housing.
500 Current and Future Developments in Law, Vol. 1 Boris Wilson Arias Lpez

4. SPECIAL EMPHASIS ON THE RIGHT TO HOUSING RELATED TO

THE PRIVATE LAW
The constitutional recognition to the right to housing can generate a complicated
relation among the public and private law. So that, the property over a land- in
which there will be other law figures such as the usufruct, use, and habitation and
so on- it is conditioned to accomplish a social function. Aspect that is fully
completed when the property to land turns out in a house, but the owners can sell
it freely, in a Social State the States role is to intervene in private relations
mainly in order to protect the weak one of the contract because there is a greater
social interest- Ex.- avoiding the speculation or in order to protect the rights of the
consumers and therefore: the role of the judge is subsidiary because it is going
to be useful to replace the will of the parts [24].
That is to say, the right to housing can be determined as a limit to property right
so that the State can regulate the mediation among sellers and buyers, so this way
unfair terms can be avoided - ex. to impose expenses to the buyer that belongs to
the seller, to establish the later irresponsibility for hidden damages, the terms that
make responsible to the seller for delays, the used material among others-,
increase taxes to those whose houses are empty, to establish that the renter should
have preference right of acquisition among other mechanisms to implement the
right to housing which cannot replace private initiative.
Referring to familiar subject the laws foresee the possibility of constructing a
house as familiar property, when the house is being sold in order to protect the
family they require the participation of both spouses when the good belongs to
both, in case of divorces the judge can provide the right to use the house
preferably to the spouse who stays with the children or the judge can enforce the
spouse who caused the separation to pay the rent of the house as an assistance.
Concerning forced evictions as a general concept ex. illegal expropriation- the
General Observation No 4 established that: they can only be applied in
exceptional situations and they always have to include alternative ways for the
accommodation of the affected ones. It also referred to the obligation of the
States to avoid evictions that can .cause some people to end up without a
house or violation to other human rights to expose that When the affected of
the evictions do not have enough resources, the State party should adopt all the
needed mechanisms, according to the resources it may have, to provide housing,
reestablishment or access to productive land aspect clearly related to the fair
process of the law so that way . Process to assure, in a great manner possible,
the fair solution of the controversy [25], so following this idea it is not possible
Right to Housing Current and Future Developments in Law, Vol. 1 501

to deprive the right to housing to a person without respecting the fair legal
process.
Thus, the right to housing in the private field is composed of subjective rights that
allow people to request the protection from forced evictions, illegal demolitions,
and the rejection to illegal interferences, and the right to choose a house and a
place, to the security of the possession- ex. the properties should be registered-
and when it is necessary to the restitution of the house aspects clearly protected by
the law and its full reparation, for example in the cases of massive displacements
how it happened in the Resolution T-821/07 of the Constitutional Court of
Colombia, where it was established: ..to establish the policies, plans, and
procedures in order to get effective satisfaction of the right to return to the people
all the goods that has been taken away for many years, currently a lot of these
people are facing forced displacements.
5. CONCLUSION
The right to housing has individual, family and collective dimensions. Thus, in
Social States, to recognize it as mandatory is the first obligation this right itself
generates for judges.
In general, the shortage of homes results mainly due to the lack of job security
and the low wages that lessen the capacity of savings- aspects that undoubtedly
respond to economic models in spite of that it is not possible to build homes for
poor people with the consideration that economic restrictions involve reduction
in their needs as human beings [26] hence it belongs to the Judicial Branch
when the other branches have omitted, to enforce its implementation and/or in
the case to implement it.
CONFLICT OF INTEREST
The author (editor) declares no conflict of interest, financial or otherwise.
ACKNOWLEDGEMENTS
Declared none.
REFERENCES
[1] Espnola Orrego G. El derecho a una vivienda digna y adecuada en el ordenamiento jurdico espaol.
Visitado el 6 de septiembre de 2013. Available from en: http://www.google.com.bo/url?sa=t&
rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CCkQFjAA&url=http%3A%
2F%2Fd space.uah.es%2Fd space%2Fbit stream%2Fhandle%2F10017%2F9143%2FTESIS_GildaEsp
%25C3%25ADnolaOrrego.pdf%3Fsequence%3D1&ei=vXhuUpunI8fF4AO1hYA4&
usg=AFQjCNGw2QHcj UKJJMCdOTI-029NWf mQgQ&bvm=bv.55123115,d.dmg.
502 Current and Future Developments in Law, Vol. 1 Boris Wilson Arias Lpez

[2] The art. 25.1 states: Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.
[3] The art. 11.1 points out: The States Parties to the present Covenant recognize the right of everyone to
an adequate standard of living for himself and his family, including adequate food, clothing and
housing, and to the continuous improvement of living conditions .
[4] The art. 5 states: In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms
and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the following rights: (e) Economic,
social and cultural rights, in particular: (iii) The right to housing..
[5] The art.14.2 points out: States Parties shall take all appropriate measures to eliminate discrimination
against women in rural areas in order to ensure, on a basis of equality of men and women, that they
participate in and benefit from rural development and, in particular, shall ensure to such women the
right to: (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation,
electricity and water supply, transport and communications; while the art. 15.2 states that: States
Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same
opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall treat them equally in all stages of procedure in courts
and tribunals.
[6] The art. 27.3 states: States Parties, in accordance with national conditions and within their means,
shall take appropriate measures to assist parents and others responsible for the child to implement this
right and shall in case of need provide material assistance and support programs, particularly with
regard to nutrition, clothing and housing and the art. 16.1 states that: No child shall be subjected to
arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful
attacks on his or her honor and reputation..
[7] The art. 17 points out: 1. No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.2.
Everyone has the right to the protection of the law against such interference or attacks..
[8] The art. 43.1 states that 1. Migrant workers shall enjoy equality of treatment with nationals of the
State of employment in relation to: (d) Access to housing, including social housing schemes, and
protection against exploitation in respect of rents;.
[9] The art. 21 states: As regards housing, the Contracting States, in so far as the matter is regulated by
laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully
staying in their territory treatment as favorable as possible and, in any event, not less favorable than
that accorded to aliens generally in the same circumstances..
[10] The principle 2 It should be an objective of national policy to promote, within the framework of
general housing policy, the construction of housing and related community facilities with a view to
ensuring that adequate and decent housing accommodation and a suitable living environment are made
available to all workers and their families. A degree of priority should be accorded to those whose
needs are most urgent..
Right to Housing Current and Future Developments in Law, Vol. 1 503

[11] The art. 2 states that: 1. Governments shall have the responsibility for developing, with the
participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these
peoples and to guarantee respect for their integrity. 2. Such action shall include measures for: (c)
assisting the members of the peoples concerned to eliminate socio-economic gaps that may exist
between indigenous and other members of the national community, in a manner compatible with their
aspirations and ways of life., the art. 14 states that: 1. 1. The rights of ownership and possession of
the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition,
measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use
lands not exclusively occupied by them, but to which they have traditionally had access for their
subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic
peoples and shifting cultivators in this respect. related to art. 16 and 17.
[12] The art. 5.2 points out: In ascertaining the minimum standards of living, account shall be taken of
such essential family needs of the workers as food and its nutritive value, housing, clothing, medical
care and education..
[13] The art. 9 states: 1.To enable persons with disabilities to live independently and participate fully in all
aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities
access, on an equal basis with others, to the physical environment, to transportation, to information
and communications, including information and communications technologies and systems, and to
other facilities and services open or provided to the public, both in urban and in rural areas. These
measures, which shall include the identification and elimination of obstacles and barriers to
accessibility, shall apply to, inter alia:, a: Buildings, roads, transportation and other indoor and outdoor
facilities, including schools, housing, medical facilities and workplaces; Information, communications
and other services, including electronic services and emergency services. And the art. 28.1 states that:
States Parties recognize the right of persons with disabilities to an adequate standard of living for
themselves and their families, including adequate food, clothing and housing, and to the continuous
improvement of living conditions, and shall take appropriate steps to safeguard and promote the
realization of this right without discrimination on the basis of disability.
[14] The art 11.2 points out: No one may be the object of arbitrary or abusive interference with his private
life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation..
[15] The art. 8.1 states that: States should undertake, at the national level, all necessary measures for the
realization of the right to development and shall ensure, inter alia, equality of opportunity for all in
their access to basic resources, education, health services, food, housing, employment and the fair
distribution of income. Effective measures should be undertaken to ensure that women have an active
role in the development process. Appropriate economic and social reforms should be carried out with a
view to eradicating all social injustices.
[16] Cfr. De Soto H. El Misterio del Capital. Editorial Planeta. Bogot-Colombia: 2004.
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[19] Ferreres Comella V. El control judicial de la constitucionalidad de la ley. El problema de su
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[21] Ibidem, p. 486.
504 Current and Future Developments in Law, Vol. 1 Boris Wilson Arias Lpez

[22] Comit de Derechos Econmico, sociales y Culturales, Observacin General No. 3 La ndole de las
obligaciones de los Estados Partes prrafo 1 del art. 2 del Pacto.
[23] Comit de Derechos Econmico, sociales y Culturales, Observacin General No. 9.
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de 2013. Available from revistas.um.es/analesderecho/article/view/82931/79971.
[25] Corte Interamericana de Derechos Humanos. Opinin Consultiva 16 de 1999.
[26] Salmona R: citado en Diagnstico del derecho de las mujeres a la vivienda adecuada y el acceso a la
propiedad de la tierra, desde una perspectiva de gnero en Colombia de Eneida Mara Chacn, Mara
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