CESCR
General Comment No. 7
The right to adequate housing (art. 11 (1) of the Covenant): forced
evictions
Sixteenth session 1997
E/1998/22
1. In its general
comment No. 4 (1991), the Committee observed that all persons should
possess a degree of security of tenure which guarantees legal protection
against forced eviction, harassment and other threats. It concluded
that forced evictions are prima facie incompatible with the requirements
of the Covenant. Having considered a significant number of reports
of forced evictions in recent years, including instances in which
it has determined that the obligations of States parties were being
violated, the Committee is now in a position to seek to provide
further clarification as to the implications of such practices in
terms of the obligations contained in the Covenant.
2. The international community has long recognized that the issue
of forced evictions is a serious one. In 1976, the United Nations
Conference on Human Settlements noted that special attention should
be paid to “undertaking major clearance operations should take place
only when conservation and rehabilitation are not feasible and relocation
measures are made”.[1] In 1988, in the Global Strategy for Shelter
to the Year 2000, adopted by the General Assembly in its resolution
43/181, the “fundamental obligation [of Governments] to protect
and improve houses and neighbourhoods, rather than damage or destroy
them” was recognized.[2] Agenda 21 stated that “people should be
protected by law against unfair eviction from their homes or land”.[3]
In the Habitat Agenda Governments committed themselves to “protecting
all people from, and providing legal protection and redress for,
forced evictions that are contrary to the law, taking human rights
into consideration; [and] when evictions are unavoidable, ensuring,
as appropriate, that alternative suitable solutions are provided”.[4]
The Commission on Human Rights has also indicated that “forced evictions
are a gross violation of human rights”.[5] However, although these
statements are important, they leave open one of the most critical
issues, namely that of determining the circumstances under which
forced evictions are permissible and of spelling out the types of
protection required to ensure respect for the relevant provisions
of the Covenant.
3. The use of the term “forced evictions” is, in some respects,
problematic. This expression seeks to convey a sense of arbitrariness
and of illegality. To many observers, however, the reference to
“forced evictions” is a tautology, while others have criticized
the expression “illegal evictions” on the ground that it assumes
that the relevant law provides adequate protection of the right
to housing and conforms with the Covenant, which is by no means
always the case. Similarly, it has been suggested that the term
“unfair evictions” is even more subjective by virtue of its failure
to refer to any legal framework at all. The international community,
especially in the context of the Commission on Human Rights, has
opted to refer to “forced evictions”, primarily since all suggested
alternatives also suffer from many such defects. The term “forced
evictions” as used throughout this general comment is defined as
the permanent or temporary removal against their will of individuals,
families and/or communities from the homes and/or land which they
occupy, without the provision of, and access to, appropriate forms
of legal or other protection. The prohibition on forced evictions
does not, however, apply to evictions carried out by force in accordance
with the law and in conformity with the provisions of the International
Covenants on Human Rights.
4. The practice of forced evictions is widespread and affects persons
in both developed and developing countries. Owing to the interrelationship
and interdependency which exist among all human rights, forced evictions
frequently violate other human rights. Thus, while manifestly breaching
the rights enshrined in the Covenant, the practice of forced evictions
may also result in violations of civil and political rights, such
as the right to life, the right to security of the person, the right
to non-interference with privacy, family and home and the right
to the peaceful enjoyment of possessions.
5. Although the practice of forced evictions might appear to occur
primarily in heavily populated urban areas, it also takes place
in connection with forced population transfers, internal displacement,
forced relocations in the context of armed conflict, mass exoduses
and refugee movements. In all of these contexts, the right to adequate
housing and not to be subjected to forced eviction may be violated
through a wide range of acts or omissions attributable to States
parties. Even in situations where it may be necessary to impose
limitations on such a right, full compliance with article 4 of the
Covenant is required so that any limitations imposed must be “determined
by law only insofar as this may be compatible with the nature of
these [i.e. economic, social and cultural] rights and solely for
the purpose of promoting the general welfare in a democratic society”.
6. Many instances of forced eviction are associated with violence,
such as evictions resulting from international armed conflicts,
internal strife and communal or ethnic violence.
7. Other instances of forced eviction occur in the name of development.
Evictions may be carried out in connection with conflict over land
rights, development and infrastructure projects, such as the construction
of dams or other large-scale energy projects, with land acquisition
measures associated with urban renewal, housing renovation, city
beautification programmes, the clearing of land for agricultural
purposes, unbridled speculation in land, or the holding of major
sporting events like the Olympic Games.
8. In essence, the obligations of States parties to the Covenant
in relation to forced evictions are based on article 11.1, read
in conjunction with other relevant provisions. In particular, article
2.1 obliges States to use “all appropriate means” to promote the
right to adequate housing. However, in view of the nature of the
practice of forced evictions, the reference in article 2.1 to progressive
achievement based on the availability of resources will rarely be
relevant. The State itself must refrain from forced evictions and
ensure that the law is enforced against its agents or third parties
who carry out forced evictions (as defined in paragraph 3 above).
Moreover, this approach is reinforced by article 17.1 of the International
Covenant on Civil and Political Rights which complements the right
not to be forcefully evicted without adequate protection. That provision
recognizes, inter alia, the right to be protected against “arbitrary
or unlawful interference” with one’s home. It is to be noted that
the State’s obligation to ensure respect for that right is not qualified
by considerations relating to its available resources.
9. Article 2.1 of the Covenant requires States parties to use “all
appropriate means”, including the adoption of legislative measures,
to promote all the rights protected under the Covenant. Although
the Committee has indicated in its general comment No. 3 (1990)
that such measures may not be indispensable in relation to all rights,
it is clear that legislation against forced evictions is an essential
basis upon which to build a system of effective protection. Such
legislation should include measures which (a) provide the greatest
possible security of tenure to occupiers of houses and land, (b)
conform to the Covenant and (c) are designed to control strictly
the circumstances under which evictions may be carried out. The
legislation must also apply to all agents acting under the authority
of the State or who are accountable to it. Moreover, in view of
the increasing trend in some States towards the Government greatly
reducing its responsibilities in the housing sector, States parties
must ensure that legislative and other measures are adequate to
prevent and, if appropriate, punish forced evictions carried out,
without appropriate safeguards, by private persons or bodies. States
parties should therefore review relevant legislation and policies
to ensure that they are compatible with the obligations arising
from the right to adequate housing and repeal or amend any legislation
or policies that are inconsistent with the requirements of the Covenant.
10. Women, children, youth, older persons, indigenous people, ethnic
and other minorities, and other vulnerable individuals and groups
all suffer disproportionately from the practice of forced eviction.
Women in all groups are especially vulnerable given the extent of
statutory and other forms of discrimination which often apply in
relation to property rights (including home ownership) or rights
of access to property or accommodation, and their particular vulnerability
to acts of violence and sexual abuse when they are rendered homeless.
The non-discrimination provisions of articles 2.2 and 3 of the Covenant
impose an additional obligation upon Governments to ensure that,
where evictions do occur, appropriate measures are taken to ensure
that no form of discrimination is involved.
11. Whereas some evictions may be justifiable, such as in the case
of persistent non-payment of rent or of damage to rented property
without any reasonable cause, it is incumbent upon the relevant
authorities to ensure that they are carried out in a manner warranted
by a law which is compatible with the Covenant and that all the
legal recourses and remedies are available to those affected.
12. Forced eviction and house demolition as a punitive measure are
also inconsistent with the norms of the Covenant. Likewise, the
Committee takes note of the obligations enshrined in the Geneva
Conventions of 1949 and Protocols thereto of 1977 concerning prohibitions
on the displacement of the civilian population and the destruction
of private property as these relate to the practice of forced eviction.
13. States parties shall ensure, prior to carrying out any evictions,
and particularly those involving large groups, that all feasible
alternatives are explored in consultation with the affected persons,
with a view to avoiding, or at least minimizing, the need to use
force. Legal remedies or procedures should be provided to those
who are affected by eviction orders. States parties shall also see
to it that all the individuals concerned have a right to adequate
compensation for any property, both personal and real, which is
affected. In this respect, it is pertinent to recall article 2.3
of the International Covenant on Civil and Political Rights, which
requires States parties to ensure “an effective remedy” for persons
whose rights have been violated and the obligation upon the “competent
authorities (to) enforce such remedies when granted”.
14. In cases where eviction is considered to be justified, it should
be carried out in strict compliance with the relevant provisions
of international human rights law and in accordance with general
principles of reasonableness and proportionality. In this regard
it is especially pertinent to recall general comment No.16 of the
Human Rights Committee, relating to article 17 of the International
Covenant on Civil and Political Rights, which states that interference
with a person’s home can only take place “in cases envisaged by
the law”. The Committee observed that the law “should be in accordance
with the provisions, aims and objectives of the Covenant and should
be, in any event, reasonable in the particular circumstances”. The
Committee also indicated that “relevant legislation must specify
in detail the precise circumstances in which such interferences
may be permitted”.
15. Appropriate procedural protection and due process are essential
aspects of all human rights but are especially pertinent in relation
to a matter such as forced evictions which directly invokes a large
number of the rights recognized in both the International Covenants
on Human Rights. The Committee considers that the procedural protections
which should be applied in relation to forced evictions include:
(a) an opportunity for genuine consultation with those affected;
(b) adequate and reasonable notice for all affected persons prior
to the scheduled date of eviction; (c) information on the proposed
evictions, and, where applicable, on the alternative purpose for
which the land or housing is to be used, to be made available in
reasonable time to all those affected; (d) especially where groups
of people are involved, government officials or their representatives
to be present during an eviction; (e) all persons carrying out the
eviction to be properly identified; (f) evictions not to take place
in particularly bad weather or at night unless the affected persons
consent otherwise; (g) provision of legal remedies; and (h) provision,
where possible, of legal aid to persons who are in need of it to
seek redress from the courts.
16. Evictions should not result in individuals being rendered homeless
or vulnerable to the violation of other human rights. Where those
affected are unable to provide for themselves, the State party must
take all appropriate measures, to the maximum of its available resources,
to ensure that adequate alternative housing, resettlement or access
to productive land, as the case may be, is available.
17. The Committee is aware that various development projects financed
by international agencies within the territories of State parties
have resulted in forced evictions. In this regard, the Committee
recalls its general comment No. 2 (1990) which states, inter alia,
that “international agencies should scrupulously avoid involvement
in projects which, for example ... promote or reinforce discrimination
against individuals or groups contrary to the provisions of the
Covenant, or involve large-scale evictions or displacement of persons
without the provision of all appropriate protection and compensation.
Every effort should be made, at each phase of a development project,
to ensure that the rights contained in the Covenant are duly taken
into account”.[6]
18. Some institutions, such as the World Bank and the Organisation
for Economic Cooperation and Development (OECD) have adopted guidelines
on relocation and/or resettlement with a view to limiting the scale
of and human suffering associated with forced evictions. Such practices
often accompany large-scale development projects, such as dam-building
and other major energy projects. Full respect for such guidelines,
insofar as they reflect the obligations contained in the Covenant,
is essential on the part of both the agencies themselves and States
parties to the Covenant. The Committee recalls in this respect the
statement in the Vienna Declaration and Programme of Action to the
effect that “while development facilitates the enjoyment of all
human rights, the lack of development may not be invoked to justify
the abridgement of internationally recognized human rights” (Part
I, para. 10).
19. In accordance with the guidelines for reporting adopted by the
Committee, State parties are requested to provide various types
of information pertaining directly to the practice of forced evictions.
This includes information relating to (a) the “number of persons
evicted within the last five years and the number of persons currently
lacking legal protection against arbitrary eviction or any other
kind of eviction”, (b) “legislation concerning the rights of tenants
to security of tenure, to protection from eviction” and (c) “legislation
prohibiting any form of eviction”.[7]
20. Information is also sought as to “measures taken during, inter
alia, urban renewal programmes, redevelopment projects, site upgrading,
preparation for international events (Olympics and other sporting
competitions, exhibitions, conferences, etc.) ‘beautiful city’ campaigns,
etc. which guarantee protection from eviction or guarantee rehousing
based on mutual consent, by any persons living on or near to affected
sites”.[8] However, few States parties have included the requisite
information in their reports to the Committee. The Committee therefore
wishes to emphasize the importance it attaches to the receipt of
such information.
21. Some States parties have indicated that information of this
nature is not available. The Committee recalls that effective monitoring
of the right to adequate housing, either by the Government concerned
or by the Committee, is not possible in the absence of the collection
of appropriate data and would request all States parties to ensure
that the necessary data is collected and is reflected in the reports
submitted by them under the Covenant.
Notes
[1] Ibid., paragraph 30.
[2] Report of Habitat: United Nations Conference on Human Settlements,
Vancouver, 31 May-11 June 1976 (A/CONF.70/15), chap. II, recommendation
B.8, paragraph C (ii).
[3] Report of the Commission on Human Settlements on the work of
its eleventh session, Addendum (A/43/8/Add.1), paragraph 13.
[4] Report of the United Nations Conference on Environment and Development,
Rio de Janeiro, 3-14 June 1992, volume I (A/CONF.151/26/Rev.1 (vol.
I), annex II, Agenda 21, chapter 7.9 (b)).
[5] Report of the United Nations Conference on Settlements (Habitat
II) (A/CONF.165/14), annex II, The Habitat Agenda, paragraph 40
(n).
[6] Commission on Human Rights resolution 1993/77, paragraph 1.
[7] E/1990/23, annex III, paragraphs 6 and 8 (d).
[8] E/C.12/1999/8, annex IV.
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