Global Report on Human Settlements 2007 - PoA-ISS

150
Security of tenure
Box 6.18 Violations of economic, social and cultural rights through ‘acts of omission’
Violations of economic, social and cultural rights can also occur
through the omission or failure of States to take necessary
measures stemming from legal obligations. Examples of such violations
include:
• The failure to take appropriate steps as required under the
Covenant;
• The failure to reform or repeal legislation which is manifestly
inconsistent with an obligation of the Covenant;
• The failure to enforce legislation or put into effect policies
designed to implement provisions of the Covenant;
• The failure to regulate activities of individuals or groups so as
to prevent them from violating economic, social and cultural
rights;
• The failure to utilize the maximum of available resources
towards the full realization of the Covenant;
• The failure to monitor the realization of economic, social and
cultural rights, including the development and application of
criteria and indicators for assessing compliance;
• The failure to remove promptly obstacles which it is under a
duty to remove to permit the immediate fulfilment of a right
guaranteed by the Covenant;
• The failure to implement without delay a right which it is
required by the Covenant to provide immediately;
• The failure to meet a generally accepted international
minimum standard of achievement, which is within its powers
to meet;
• The failure of a State to take into account its international
legal obligations in the field of economic, social and cultural
rights when entering into bilateral or multilateral agreements
with other States, international organizations or multinational
corporations.
Source: Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Guideline 15
Of all … domesticlevel
judicial
approaches to …
security of tenure,
… South African
courts that have
taken the most
interesting route
understood by those making international and national
policies in this area. Furthermore, a range of courts have
been addressing these links for decades. For instance,
although under the European Convention on Human Rights
there is no general right to a home, as such, many cases have
dealt with the question of forced evictions and issues of
security of tenure (see Box 6.20). These and related
sentiments can also be found in the decisions of national
courts in many countries. Of all the domestic-level judicial
approaches to the question of security of tenure, it is the
South African courts that have taken the most interesting
route. A number of recent court cases in South Africa
exemplify how the right to security of tenure is increasingly
gaining recognition at the national level internationally (see
Box 6.26).
Box 6.19 United Nations Committee on Economic, Social and Cultural Rights (CESCR) statements
on state compliance with the right to security of tenure
Canada (1993): the CESCR is concerned that the right to
security of tenure is not enjoyed by all tenants in Canada. The
Committee recommends the extension of security of tenure to all
tenants.
Mexico (1993): the CESCR recommends the speedy adoption of
policies and measures designed to ensure adequate civic services,
security of tenure and the availability of resources to facilitate
access by low-income communities to affordable housing.
Dominican Republic (1994): the government should confer
security of tenure to all dwellers lacking such protection at
present, with particular reference to areas threatened with forced
eviction. The CESCR notes that Presidential Decrees 358-91 and
359-91 are formulated in a manner inconsistent with the provisions
of the Covenant and urges the government to consider the repeal
of both of these decrees within the shortest possible timeframe.
The Philippines (1995): the CESCR urges the government to
extend indefinitely the moratorium on summary and illegal forced
evictions and demolitions and to ensure that all those under threat
in those contexts are entitled to due process. The government
should promote greater security of tenure in relation to housing in
accordance with the principles outlined in the CESCR’s General
Comment No 4 and should take the necessary measures, including
prosecutions wherever appropriate, to stop violations of laws such
as RA 7279.
Azerbaijan (1997): the CESCR draws the attention of the state
party to the importance of collecting data relating to the practice
of forced evictions and of enacting legislation concerning the rights
of tenants to security of tenure in monitoring the right to housing.
Nigeria (1998): the CESCR urges the government to cease forthwith
the massive and arbitrary evictions of people from their
homes and take such measures as are necessary in order to alleviate
the plight of those who are subject to arbitrary evictions or are
too poor to afford a decent accommodation. In view of the acute
shortage of housing, the government should allocate adequate
resources and make sustained efforts to combat this serious situation.
Kenya (2005): the state party should develop transparent policies
and procedures for dealing with evictions and ensure that evictions
from settlements do not occur unless those affected have been
consulted and appropriate resettlement arrangements have been
made.
Source: Office of the United Nations High Commissioner for Human Rights, www.ohchr.org/english/bodies/cescr/index.htm