Global Report on Human Settlements 2007 - PoA-ISS

Policy responses to tenure insecurity
147
Box 6.14 Procedural protections when forced evictions are unavoidable
When forced evictions are carried out as a last resort and in full
accordance with the international law, affected persons must, in
addition to being assured that homelessness will not occur, also be
afforded eight prerequisites prior to any eviction taking place. Each
of these might have a deterrent effect and result in planned
evictions being prevented. These procedural protections include
the following:
• an opportunity for genuine consultation with those affected;
• adequate and reasonable notice for all affected persons prior
to the scheduled date of eviction;
• information on the proposed evictions and, where applicable,
on the alternative purpose for which the land or housing is to
be used, to be made available in reasonable time to all those
affected;
• especially where groups of people are involved, government
officials or their representatives to be present during an
eviction;
• all persons carrying out the eviction to be properly identified;
• evictions not to take place in particularly bad weather or at
night unless the affected persons consent otherwise;
• provision of legal remedies; and
• provision, where possible, of legal aid to persons who are in
need of it to seek redress from the courts.
Source: CESCR, General Comment No 7, para 15
safeguards. While extending protection to all persons, the
General Comment gives particular mention to groups who
suffer disproportionately from forced evictions, including
women, children, youth, older persons, indigenous people,
and ethnic and other minorities. With respect to the rights of
women, the text asserts that:
Women in all groups are especially vulnerable
given the extent of statutory and other forms of
discrimination which often apply in relation to
property rights (including home ownership) or
rights of access to property or accommodation,
and their particular vulnerability to acts of
violence and sexual abuse when they are
rendered homeless. 38
One of the more precedent-setting provisions of General
Comment No 7 declares that ‘evictions should not result in
rendering individuals homeless or vulnerable to the violation
of other human rights’. 39 The General Comment makes it
incumbent on governments to guarantee that people who
are evicted – whether illegally or in accordance with the law
– are to be ensured of some form of alternative housing. This
would be consistent with other provisions (i.e. that ‘all
individuals have a right to adequate compensation for any
property, both personal and real, which is affected’, and that
‘legal remedies or procedures should be provided to those
who are affected by eviction orders’). 40 If governments
follow the provisions of the General Comment, therefore, no
one should ever be forced into the realms of homelessness
or be subjected to violations of their human rights because
of facing eviction, notwithstanding the rationale behind such
evictions.
The Committee is also critical of the involvement of
international agencies in development projects that have
resulted in forced evictions, and stresses that:
… international agencies should scrupulously
avoid involvement in projects which, for
example ... promote or reinforce discrimination
against individuals or groups contrary to the
provisions of the Covenant, or involve largescale
evictions or displacement of person
without the provision of all appropriate protection
and compensation. 41
While the overall position of the General Comment is to
discourage the practice of forced evictions, it does recognize
that in some exceptional circumstances, evictions can be
carried out. However, for these evictions to be legal and
consistent with human rights, a lengthy series of criteria will
need to be met in full (see Box 6.14).
In essence, therefore, General Comment No 7 and
the numerous international standards preceding and following
it recognize that forced evictions are not an acceptable
practice under human rights law. At the same time, the international
legal instruments realistically acknowledge that
under truly exceptional circumstances, after having considered
all possible alternatives and in accordance with a
detailed series of conditions, some types of eviction may be
permissible. It is to this question that we now turn.
Many states have enacted domestic legislation reflecting
the sentiments of standards such as those found in
international law as a means of implementing their various
international obligations in recognition of housing rights and
security of tenure. National constitutions from all regions of
the world and representing every major legal system,
culture, level of development, religion and economic system
specifically address state obligations relating to housing.
More than half of the world’s constitutions refer to general
obligations within the housing sphere or specifically to the
right to adequate housing (see Box 6.15). If human rights
linked to and indispensable for the enjoyment of housing
rights are considered, 42 the overwhelming majority of constitutions
make reference, at least implicitly, to housing rights.
Domestic laws also increasingly recognize rights
linked to security of tenure. The Republic of the Philippines’
Urban Development and Housing Act provides an example of
national legislation dealing with the discouragement of
forced evictions, the due process necessary to ensure that an
Evictions should not
result in rendering
individuals homeless
or vulnerable to the
violation of other
human rights’