Global Report on Human Settlements 2007 - PoA-ISS

Enhancing tenure security and ending forced evictions
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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