Global Report on Human Settlements 2007 - PoA-ISS

Policy responses to tenure insecurity
149
Box 6.16 The Republic of the Philippines’ Urban Development and Housing Act
Eviction or demolition as a practice shall be discouraged. Eviction
or demolition, however, may be allowed under the following situations:
• when persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways
and other public places, such as sidewalks, roads, parks,
and playgrounds;
• when government infrastructure projects with available
funding are about to be implemented; or
• when there is a court order for eviction and demolition.
In the execution of eviction or demolition order involving underprivileged
and homeless citizens, the following shall be mandatory:
• notice upon the affected persons or entities at least …
30 days prior to the date of eviction or demolition;
• adequate consultations on the matter of resettlement with
the duly designated representatives of the families to be resettled
and the affected communities in the areas where they are
to be relocated;
• presence of local government officials or their representatives
during eviction or demolition;
• proper identification of all persons taking part in the demolition;
• execution of eviction or demolition only during regular office
hours from Mondays to Fridays and during good weather,
unless the affected families consent otherwise;
• no use of heavy equipment for demolition except for structures
that are permanent and of concrete materials;
• proper uniforms for members of the Philippine National
Police who shall occupy the first line of law enforcement and
observe proper disturbance control procedures; and
• adequate relocation, whether temporary or permanent.
Source: Republic of the Philippines, 1992 Urban Development and Housing Act (Republic Act No 7279), Section 28
Although the development of effective remedies for the
prevention and redress of violations of economic, social and
cultural rights, including security of tenure, has been slow,
several developments in recent years have added to the
seriousness given to these rights and are graphic evidence of
the direct linkages between human rights and security of
tenure. The 1997 Maastricht Guidelines on Violations of
Economic, Social and Cultural Rights, for instance, provide a
great deal of clarity as to which ‘acts of commission’ (see Box
6.17) and ‘acts of omission’ (see Box 6.18) would constitute
violations of the ICESCR. Based on these guidelines, it is
possible to develop a framework for determining the
compatibility of national and local law and policy on aspects
of tenure security with the position of human rights law.
Because security of tenure and the rights forming its
foundation continue to grow in prominence at all levels, it
should come as no surprise that official human rights bodies,
including courts, at the national, regional and international
levels are increasingly scrutinizing the practices of governments
with respect to security of tenure. This is a positive
development and, yet, is one more additional indication that
a combined approach to this question between the human
settlements and human rights communities is beginning to
bear fruit. Much of the pioneering work in this regard has
been carried out by the CESCR. As mentioned earlier, since
1990 the Committee has issued dozens of pronouncements
about security of tenure conditions in different countries.
Box 6.19 provides an overview of a cross-section of these
statements to give an idea of the extent of progress made in
addressing security of tenure as a core human rights issue.
Despite the work of the CESCR, the human rights
dimensions of security of tenure are not yet widely enough
Official human
rights bodies … are
increasingly scrutinizing
the practices
of governments with
respect to security
of tenure
Box 6.17 Violations of economic, social and cultural rights through ‘acts of commission’
Violations of economic, social and cultural rights can occur through
the direct action of states or other entities insufficiently regulated
by states. Examples of such violations include:
• The formal removal or suspension of legislation necessary for
the continued enjoyment of an economic, social and cultural
right that is currently enjoyed;
• The active denial of such rights to particular individuals or
groups, whether through legislated or enforced discrimination;
• The active support for measures adopted by third parties
which are inconsistent with economic, social and cultural
rights;
• The adoption of legislation or policies which are manifestly
incompatible with pre-existing legal obligations relating to
these rights, unless it is done with the purpose and effect of
increasing equality and improving the realization of economic,
social and cultural rights for the most vulnerable groups;
• The adoption of any deliberately retrogressive measure that
reduces the extent to which any such right is guaranteed;
• The calculated obstruction of, or halt to, the progressive
realization of a right protected by the Covenant, unless the
state is acting within a limitation permitted by the Covenant
or it does so due to a lack of available resources or force
majeure;
• The reduction or diversion of specific public expenditure,
when such reduction or diversion results in the nonenjoyment
of such rights and is not accompanied by adequate
measures to ensure minimum subsistence rights for everyone.
Source: Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Guideline 14