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Enhancing tenure security and ending forced evictions265The more recently adopted Principles on Housing andProperty Restitution for Refugees and Displaced Persons (thePinheiro Principles) is even clearer in establishing rightsagainst displacement (see Box 11.3). 14■ The right not to be arbitrarily deprived ofone’s propertyThe right not to be arbitrarily deprived of one’s property isclosely related to the issue of forced eviction. The UniversalDeclaration of Human Rights, which was adopted in 1948,guarantees everyone the right to own property alone, as wellas in association with others, and prohibits the arbitrarydeprivation of property. 15 Such rights are widely addressedthroughout human rights law, although ‘property rights’ assuch, are – perhaps surprisingly for many readers – notfound within the two (legally binding) internationalcovenants on human rights, which became law in thosestates that have ratified them as from 1976.While some have argued that this omission was essentiallya technical mistake, the vote of the drafting body ofseven ‘against’ to six ‘for’, with five abstentions, of whetheror not to include a specific article on property within theICESCR, clearly shows that unanimity on this question wasnot apparent at the time of the drafting of these cornerstoneinternational human rights treaties. 16 In identifying thereasons for the exclusion of property rights from these texts,it appears that questions of definition, scope and issuessurrounding interference with property, the circumstancesunder which the right of the state to expropriate propertycould be legitimately exercised and the question of compensationeach contributed to preventing widespreadagreement.■ The right to privacy and respect for thehomeThe widely recognized rights to privacy and respect for thehome are fundamental human rights protections that canalso be linked directly to security of tenure. Privacy is, infact, one of the elements of adequacy identified by theCESCR, 17 as well as by governments in both the GlobalStrategy for Shelter to the Year 2000 and the HabitatAgenda.The safeguards against arbitrary and unlawful interferencewith the home found in Article 8 of the EuropeanConvention on Human Rights, for instance, have beenfrequently relied upon by claimants before the EuropeanCourt on Human Rights in cases seeking protection ofhousing rights, as well as related housing and property restitutionrights. Closely related to the practice of forcedeviction, according to jurisprudence, any interference withthese rights can only be justified if they are carried out inaccordance with law, in pursuit of a legitimate social aim inthe public interest and subject to the payment of just andsatisfactory compensation.Both owner-occupied and rental housing falls underthe protections offered by the right to privacy provisionsunder the European Court on Human Rights. Under the caselaw of the European Court on Human Rights, one’s ‘home’can even be a place that a person neither owns nor rents, butBox 11.3 The Pinheiro Principles: Provision against evictions• Principle 5.1: Everyone has the right to be protected against being arbitrarily displacedfrom his or her home, land or place of habitual residence.• Principle 5.2: States should incorporate protections against displacement into domesticlegislation, consistent with international human rights and humanitarian law and relatedstandards, and should extend these protections to everyone within their legal jurisdictionor effective control.• Principle 5.3: States shall prohibit forced eviction, demolition of houses and destruction ofagricultural areas, and the arbitrary confiscation or expropriation of land as a punitivemeasure or as a means or method of war.• Principle 5.4: States shall take steps to ensure that no one is subjected to displacement byeither state or non-state actors. States shall also ensure that individuals, corporations andother entities within their legal jurisdiction or effective control refrain from carrying outor otherwise participating in displacement.Source: United Nations Documents E/CN.4/Sub.2/2005/17 and E/CN.4/Sub.2/2005/17/Add.1nonetheless resides in. Moreover, the court has repeatedlydetermined Article 8 cases more on the basis of the factualsituation of a resident of a particular home than exclusivelyon the legal status of the rights holder concerned. Both ofthese trends are important for dwellers in the informalsector, and for their relevance for treating security of tenureas a human right. 18■ The right to housing and propertyrestitutionOver the past several decades, intergovernmental agencies,government officials, the United Nations and NGO fieldstaff, and others working in protection or support capacitieswith refugees and IDPs have become increasingly involved inefforts to secure durable rights-based solutions to all formsof displacement based on the principle of voluntary repatriation.During more recent years, the idea of voluntaryrepatriation and return have expanded into concepts involvingnot simply the return to one’s country for refugees orone’s city or region for IDPs, but the return to, and reassertionof, 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 early1990s several million refugees and IDPs have recovered andre-inhabited their original homes, lands and propertiesthrough restitution processes, while smaller numbers haveaccepted compensation in lieu of return. 19 These effortshave been played out from Bosnia-Herzegovina andAfghanistan to South Africa, and from Tajikistan toGuatemala, Mozambique and beyond. This historic changein emphasis from what were essentially humanitarian-drivenresponses, to voluntary repatriation, to more rights-basedapproaches, to return is increasingly grounded in the principleof restorative justice and of restitution as a legal remedythat can support refugees and IDPs in their choice of adurable solution (whether return, resettlement or localintegration). As noted above, the recently approved PinheiroPrinciples expand and clarify the rights of all refugees anddisplaced persons (including evictees) ‘to have restored tothem any housing, land and/or property of which they werearbitrarily or unlawfully deprived’. 20The UniversalDeclaration ofHuman Rights …guarantees everyonethe right to ownproperty …, andprohibits thearbitrary deprivationof propertyThe … rights toprivacy and respectfor the home arefundamental humanrights protections