Research On The Legitimacy Of The Judicial Safeguard Of The Right To Housing

Housing is essential to human’s survival and development, and have house tolive is the most basic and important physiological needs for the people, having theright to adequate housing is one of the basic human rights. Based on this, the right tohousing has been recognized as a basic human right all around the world, and it hasbeen imposed by many important conventions and national constitutions. However,the legal community has a wrong understanding on the right to housing for a longtime, they opposed the judicial safeguard of the right to housing in theory. Opponentsdemonstrate the right to housing can’t be judicial safeguard by two ways: firstly, theydemonstrate that housing right is not a human right; secondly, based on the traditionalrights theory, they classify the right to housing as a positive right. In fact, the right tohousing is not only a positive human right but also a negative human right. Lack ofthe theory on judicial safeguard has lead to the plight of the judicial practice of theright to housing, people can not receive proper judicial relief after their housing rightsviolated by other people.“No relief, no rights”, if we want the right to housing changefrom the rights on paper into reality, it must be subject to judicial safeguard. Based onthis, this article is to strengthen the theoretical study on the judicial safeguard of theright to housing. I think it is necessary to reconstruct the judicial safeguard of the rightto housing. To be concrete, human rights protection theory, rights theory of integration,theory of right to relief has provided strong theoretical support for the judicialsafeguard of the right to housing. The relevant provisions on the housing rights ofjudicial relief in the “Universal Declaration of human rights”、“International covenanton economic, social and cultural rights” and its implementation rules、generalcomments have provided a solid legal basis for the judicial safeguard of the right tohousing. Courts around the world, especially the South African Constitutional Courthas tried positive attempts in the judicial practice on the right to housing, thosepositive attempts have provided a realistic foundation for the judicial safeguard of theright to housing. In a word, judicial safeguard of the right to housing has legitimacy intheory, law and practice.