Global Report on Human Settlements 2007 - PoA-ISS

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264 Towards safer and more secure cities Box 11.2 The right to housing in international law The right to housing is recognized in a range of international legal instruments, including inter alia: • 1948: Universal Declaration of Human Rights (Article 25(1)); • 1961: International Labour Organization (ILO) Recommendation No 115 on Workers’ Housing; • 1965: International Convention on the Elimination of All Forms of Racial Discrimination (Article 5(e)(iii)); • 1976: International Covenant on Economic, Social and Cultural Rights (Article 11(1)); • 1979: Convention on the Elimination of All Forms of Discrimination Against Women (Article 14(2)); • 1989: Convention on the Rights of the Child (Article 27(3)); • 1990: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Article 43(1)(d)); • 2007: Convention on the Rights of Persons with Disabilities (Article 28). Each State Party to the present Covenant undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 8 ■ The right to be protected against forced evictions Building on the legal foundations of the right to adequate housing (and other related rights), many internationally negotiated documents assert that forced evictions constitute a gross violation of human rights. As a result, in 1993, the then United Nations Commission on Human Rights urged all states to confer security of tenure on those currently without these protections. 9 This was followed up in 2004 with an even more unequivocal resolution on the prohibition of forced evictions, 10 which reaffirmed: The practice of forced eviction … constitutes a gross violation of a broad range of human rights Every human being … have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence As noted above, many states have incorporated references to the right to housing in their national constitutions. Moreover, all states have domestic legislation in place recognizing at least some of the requirements associated with the right to adequate housing. Laws governing property relations, landlord and tenant arrangements, nondiscrimination rights in the housing sector, access to services, land administration and a range of other legal areas can be found in all states. Among other things, those entitled to this right are legally assured to housing that is adequate. Adequacy has specifically been defined to include security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy. 5 Governmental obligations derived from this right include duties to take measures to confer security of tenure (and consequent protection against arbitrary or forced eviction and/or arbitrary confiscation or expropriation of housing); to prevent discrimination in the housing sphere; to ensure equality of treatment and access vis-à-vis housing; to protect against racial discrimination; to guarantee housing affordability; and many others. 6 Moreover, there is a duty incumbent upon those exercising powers of governance to promote access to, and provision of, housing resources suited to the needs of the disabled, the chronically ill, migrant workers, the elderly, and refugees and internally displaced persons (IDPs). States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others. 7 Finally, and perhaps most importantly, international law requires governments to take steps to progressively realize housing (and other) rights: … that the practice of forced eviction that is contrary to laws that are in conformity with international human rights standards constitutes a gross violation of a broad range of human rights, in particular the right to adequate housing. This resolution also urged governments: … to undertake immediately measures, at all levels, aimed at eliminating the practice of forced eviction by, inter alia, repealing existing plans involving forced evictions as well as any legislation allowing for forced evictions, and by adopting and implementing legislation ensuring the right to security of tenure for all residents, [and to] protect all persons who are currently threatened with forced eviction and to adopt all necessary measures giving full protection against forced eviction, based upon effective participation, consultation and negotiation with affected persons or groups. The United Nations Guiding Principles on Internal Displacement adopt a similar perspective and state clearly that ‘Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence’. 11 The United Nations Committee on Economic, Social and Cultural Rights’ (CESCR’s) General Comment No 7, examined earlier, is perhaps the most detailed statement interpreting the view of international law in this area, stating that ‘forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law’. 12 In addition, rights such as the right to freedom of movement and the corresponding right to choose one’s residence, the right to be free from degrading or inhuman treatment and others are being increasingly interpreted to protect people against forced evictions. 13
Enhancing tenure security and ending forced evictions 265 The more recently adopted Principles on Housing and Property Restitution for Refugees and Displaced Persons (the Pinheiro Principles) is even clearer in establishing rights against displacement (see Box 11.3). 14 ■ The right not to be arbitrarily deprived of one’s property The right not to be arbitrarily deprived of one’s property is closely related to the issue of forced eviction. The Universal Declaration of Human Rights, which was adopted in 1948, guarantees everyone the right to own property alone, as well as in association with others, and prohibits the arbitrary deprivation of property. 15 Such rights are widely addressed throughout human rights law, although ‘property rights’ as such, are – perhaps surprisingly for many readers – not found within the two (legally binding) international covenants on human rights, which became law in those states that have ratified them as from 1976. While some have argued that this omission was essentially a technical mistake, the vote of the drafting body of seven ‘against’ to six ‘for’, with five abstentions, of whether or not to include a specific article on property within the ICESCR, clearly shows that unanimity on this question was not apparent at the time of the drafting of these cornerstone international human rights treaties. 16 In identifying the reasons for the exclusion of property rights from these texts, it appears that questions of definition, scope and issues surrounding interference with property, the circumstances under which the right of the state to expropriate property could be legitimately exercised and the question of compensation each contributed to preventing widespread agreement. ■ The right to privacy and respect for the home The widely recognized rights to privacy and respect for the home are fundamental human rights protections that can also be linked directly to security of tenure. Privacy is, in fact, one of the elements of adequacy identified by the CESCR, 17 as well as by governments in both the <strong>Global</strong> Strategy for Shelter to the Year 2000 and the Habitat Agenda. The safeguards against arbitrary and unlawful interference with the home found in Article 8 of the European Convention on Human Rights, for instance, have been frequently relied upon by claimants before the European Court on Human Rights in cases seeking protection of housing rights, as well as related housing and property restitution rights. Closely related to the practice of forced eviction, according to jurisprudence, any interference with these rights can only be justified if they are carried out in accordance with law, in pursuit of a legitimate social aim in the public interest and subject to the payment of just and satisfactory compensation. Both owner-occupied and rental housing falls under the protections offered by the right to privacy provisions under the European Court on Human Rights. Under the case law of the European Court on Human Rights, one’s ‘home’ can even be a place that a person neither owns nor rents, but Box 11.3 The Pinheiro Principles: Provision against evictions • Principle 5.1: Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place of habitual residence. • Principle 5.2: States should incorporate protections against displacement into domestic legislation, consistent with international human rights and humanitarian law and related standards, and should extend these protections to everyone within their legal jurisdiction or effective control. • Principle 5.3: States shall prohibit forced eviction, demolition of houses and destruction of agricultural areas, and the arbitrary confiscation or expropriation of land as a punitive measure or as a means or method of war. • Principle 5.4: States shall take steps to ensure that no one is subjected to displacement by either state or non-state actors. States shall also ensure that individuals, corporations and other entities within their legal jurisdiction or effective control refrain from carrying out or otherwise participating in displacement. Source: United Nations Documents E/CN.4/Sub.2/2005/17 and E/CN.4/Sub.2/2005/17/Add.1 nonetheless resides in. Moreover, the court has repeatedly determined Article 8 cases more on the basis of the factual situation of a resident of a particular home than exclusively on the legal status of the rights holder concerned. Both of these trends are important for dwellers in the informal sector, and for their relevance for treating security of tenure as a human right. 18 ■ The right to housing and property restitution Over the past several decades, intergovernmental agencies, government officials, the United Nations and NGO field staff, and others working in protection or support capacities with refugees and IDPs have become increasingly involved in efforts to secure durable rights-based solutions to all forms of displacement based on the principle of voluntary repatriation. During more recent years, the idea of voluntary repatriation and return have expanded into concepts involving not simply the return to one’s country for refugees or one’s city or region for IDPs, but the return to, and reassertion of, control over one’s original home, land or property (i.e. the process of housing and property restitution). As a result of these developments, since the early 1990s several million refugees and IDPs have recovered and re-inhabited their original homes, lands and properties through restitution processes, while smaller numbers have accepted compensation in lieu of return. 19 These efforts have been played out from Bosnia-Herzegovina and Afghanistan to South Africa, and from Tajikistan to Guatemala, Mozambique and beyond. This historic change in emphasis from what were essentially humanitarian-driven responses, to voluntary repatriation, to more rights-based approaches, to return is increasingly grounded in the principle of restorative justice and of restitution as a legal remedy that can support refugees and IDPs in their choice of a durable solution (whether return, resettlement or local integration). As noted above, the recently approved Pinheiro Principles expand and clarify the rights of all refugees and displaced persons (including evictees) ‘to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived’. 20 The Universal Declaration of Human Rights … guarantees everyone the right to own property …, and prohibits the arbitrary deprivation of property The … rights to privacy and respect for the home are fundamental human rights protections
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ENHANCING URBAN SAFETY AND SECURITY
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First published by Earthscan in the
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INTRODUCTION Enhancing Urban Safety
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ACKNOWLEDGEMENTS The preparation of
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x Enhancing Urban Safety and Securi
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xviii Enhancing Urban Safety and Se
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LIST OF FIGURES, BOXES AND TABLES F
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4 Understanding Urban Safety and Se
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1 CHAPTER CURRENT THREATS TO URBAN
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2 CHAPTER VULNERABILITY, RISK AND R
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29 simply ‘give up’ in the face
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46 Urban crime and violence Box II.
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48 Urban crime and violence it has
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50 Urban crime and violence Formal
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52 Urban crime and violence Contact
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54 Urban crime and violence Per 100
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56 Urban crime and violence Burglar
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58 Urban crime and violence Percent
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60 Urban crime and violence Figure
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62 Urban crime and violence Table 3
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64 Urban crime and violence Youth g
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68 Urban crime and violence Type of
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72 Urban crime and violence One vio
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76 Urban crime and violence Abused
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78 Urban crime and violence General
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82 Urban crime and violence porate
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4 CHAPTER URBAN CRIME AND VIOLENCE:
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86 Urban crime and violence UN-Habi
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88 Urban crime and violence Box 4.2
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90 Urban crime and violence Box 4.4
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92 Urban crime and violence Legisla
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100 Urban crime and violence Box 4.
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102 Urban crime and violence In som
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104 Urban crime and violence Initia
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106 Urban crime and violence The mo
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112 Security of tenure Box III.1 Se
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5 CHAPTER SECURITY OF TENURE: CONDI
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116 Security of tenure Table 5.1 A
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118 Security of tenure Fully legal
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120 Security of tenure Box 5.4 Secu
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122 Security of tenure Urban tenure
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124 Security of tenure At least 2 m
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126 Security of tenure Market-based
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128 Security of tenure Box 5.11 Urb
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130 Security of tenure Operation Mu
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132 Security of tenure Control of l
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134 Security of tenure Box 5.18 Sec
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136 Security of tenure NOTES 1 Habi
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138 Security of tenure Box 6.1 The
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140 Security of tenure It would be
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142 Security of tenure Box 6.7 Land
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144 Security of tenure Box 6.10 Wha
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146 Security of tenure Box 6.12 Evi
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150 Security of tenure Box 6.18 Vio
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154 Security of tenure Box 6.24 Lan
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156 Security of tenure The state is
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158 Security of tenure Housing righ
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Over the last three decades, natura
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Introduction 165 One of the key tre
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7 CHAPTER DISASTER RISK: CONDITIONS
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Disaster risk: Conditions, trends a
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314 Summary of case studies purpose
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316 Summary of case studies These e
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318 Summary of case studies develop
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320 Summary of case studies tion ex
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322 Summary of case studies Housing
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324 Summary of case studies Prolong
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326 Summary of case studies momentu
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330 Statistical annex Islands, Micr
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332 Statistical annex NOMENCLATURE
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334 Statistical annex Population, u
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336 Statistical annex SOURCES OF DA
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338 Enhancing Urban Safety and Secu
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410 TABLE C.7 continued Enhancing U
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INDEX ACHR (Asian Coalition for Hou
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Index 435 security of tenure 134 co
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Index 437 domestic abuse see intima
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Index 439 hazard management 169 haz
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Index 441 Kosovo, security of tenur
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Index 443 participation 38, 296-299
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Index 445 individual 34-35 municipa
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Index 447 gun ownership 78 Homeless
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