Human Rights Evicted
By Jhuma Sen
25 March, 2009
A Review of the UDHR: From in‘adequate' Housing to Forced Evictions and the Myth of Adequate Housing in India
“........ the right to housing goes further than the right not to be subjected to arbitrary or forced eviction. It also involves a duty on the State to take effective action to enable its people to meet their need for a safe and secure home where they can live with dignity. That is not achieved easily or overnight, but...... it is now internationally recognised that States must take appropriate steps to ensure the realisation of this right.
--Nelson Mandela (Former President of South Africa )
The Universal Declaration: The Beginning of a Journey of a Thousand Miles
The Universal Declaration of Human Rights (UDHR) is just about 60 years old. However Human Rights have been an age old concept, almost as old as man himself. The notion that there should be a law to protect private individuals from abuses by the political system dates back to Magna Carta in 1215, which was again based on Henry I's Charter of Liberties of 1100. But this document was very different from the Universal Declaration of Human Rights. For one thing Magna Carta was hardly universal in geographical terms. For another, most of the rights it guaranteed were those of a limited number of the king's subject mostly the nobility.
Human Rights awareness has also slowly emerged from the Hammurabi Codes of ancient Babylon to the Greco-Roman doctrines to mandates of the League of Nations . Natural laws had earlier set the stage for the wide recognition of human rights and freedoms. Although the world had made great progress in defining human rights, t he Nazi Holocaust altered forever the way in which people considered human rights. From domestic concern, human rights became an international concern.
The 1948 UDHR came out of a particular period of time – World War 2, 1939-1945. Through their difficult work, the framers of the Universal Declaration concluded, "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." And they affirmed that "it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." Late in the evening of December 10, 1948 , forty-eight nations adopted the Universal Declaration of Human Rights without dissent. It was deemed "an historic act, destined to consolidate world peace through the contribution of the United Nations toward the liberation of individuals from the unjustified oppression and constraint to which they are too often subjected."
Housing Rights under UDHR
The UDHR guaranteed like all other things, housing rights too. Article 25.1 of the Universal Declaration of Human Rights proclaimed:
‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.'
Adequate housing is universally viewed as one of the most basic human needs. Yet as important as adequate housing is to everyone, the Committee on Economic, Social and Cultural Rights has noted that more than one billion people worldwide lack adequate housing, and that over 100 million are homeless . . One third of humanity (more than two billion people) lives without security of tenure, adequate legal safeguards against forced eviction and without access to clean and affordable drinking water in the home. ‘Without adequate housing, employment is difficult to secure and maintain, physical and mental health is threatened, education is impeded, violence is more easily perpetrated, privacy is impaired and relationships are strained.' Under the right to adequate housing, everyone should have a degree of security of tenure, protecting them from forced eviction, harassment and other threats. Services available should include safe drinking water, sanitation and energy. Housing should be accessible to all, including the poor, and priority should be given to the most vulnerable. According to the international standards, states should take steps to ensure that housing is located in safe areas, away from military sites, dangerous emissions or pollution; is near transport links and employment opportunities; and respects cultural rights.
What constitutes adequate housing is the next important question. As defined by the first Special Rapporteur, "the human right to adequate housing is the right of every woman, man, youth and child to gain and sustain a safe and secure home and community in which to live in peace and dignity".
Entrée to ‘adequate housing' has important bearings. It impacts upon other human rights-- without it, employment is difficult to secure and preserve, health is endangered, education is impeded, violence and aggression more easily perpetrated, privacy is impaired and social relationships are frequently strained. Yet, despite the centrality of housing in everyone's life, few human rights are violated as frequently as are housing rights. In every country throughout the world - both North and South - women, men and children, particularly those living in poverty, are forced to live in appalling conditions, on pavements, near environmental hazards, in slums, parks, cars, cages, on rooftops, under bridges or are forced to "squat" in abandoned buildings or on land owned by others. For those fortunate enough to have a home, while these places may provide some meagre protection from the elements, they all too frequently remain grossly inadequate, lacking security of tenure, potable water, proper drainage and sewage systems, proper sanitation, ventilation/heat, electricity and access to basic social services. For example, according to the United Nations Development Programme, nearly one billion of the world's citizens still lack improved water sources and an estimated 2.4 billion have inadequate sanitation. All of these are denials of housing rights and can be described as inadequate.
The concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute "adequate housing" for the purposes of the Covenant. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. General Comment No. 4 adopted by the UN Committee on Economic, Social and Cultural Rights, elaborates seven criteria of housing adequacy, and provides the single most authoritative interpretation of the right to adequate housing under international human rights law. These are the seven core components of adequate housing according to international human rights law
While the General Comment 4 lays down these 7 pointers as standards to measure adequacy of housing conditions, the reality remains that t here is, however, a huge gap between words and facts. According to UN figures, one billion urban inhabitants live in inadequate housing, mostly in slums and squatter settlements in developing countries. As many civil society organizations and experts have pointed out, there is one big culprit: corporate globalisation and its negative effects on the life of the poor. As Miloon Kothari, UN Special Rapporteur on the subject puts it,
“the deepening inequalities of income and opportunities between and within nations has lead to an increase in the number or people without adequate and secure housing. The human rights of people and communities to housing, water and sanitation (…) continue to erode as the process of privatisation deepens and accelerates”.
Forced Evictions: The Stigma on Housing Rights under UDHR
Defining Forced Eviction is a tricky thing to attempt. The term ‘forced evictions' was preferred by the Committee to other terms such as ‘relocation' or ‘unfair evictions', because this term most aptly conveyed both a sense of arbitrariness and of illegality and due to its widespread usage throughout international law. Forced Evictions can be defined as t he 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.
Forced Evictions are a particular type of Displacement which are most often characterized by
(1) A relation to specific decisions, legislation, or policies of States or the failure of States to intervene to halt evictions by non-state actors;
(2) An element of force or coercion; and
(3) Are often planned, formulated, and announced prior to being carried out.
The UN Committee on Economic, Social and Cultural Rights has stated that "forced evictions are prima facie incompatible with the requirements of the [International Covenant on Economic, Social and Cultural Rights] and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law."
Under international human rights law, everyone has a right to be protected against forced eviction. Evictions are permitted only in exceptional circumstances, and then only under strict conditions. The right to protection against forced evictions is part of a broader right to housing and a range of related rights. According to international law, forced eviction is a gross violation of human rights, depriving women, men and children of the human right to adequate housing.
Forced Evictions and the Violation of other Rights
In addition to housing rights violations, the practice of forced eviction can result in the violation of a number of other rights including:
- The right to non-interference with privacy, family and home
- The right to be protected against the arbitrary deprivation of property
- The right to the peaceful enjoyment of possessions - many forced eviction s occur without warning, forcingpeople to abandon their homes, lands and worldly possessions
- The right to respect for the home
- The right to freedom of movement and to choose one's residence
- The right to education - often children cannot attend school due to relocation
- The right to life - violence during the forced eviction which results in death, is a common occurrence.
- The right to security of the person - implementingauthorities rarely provide evicted persons with adequate homes or any form of compensation, thus rendering them vulnerable to homeless ness and further acts of violence.
- The right to effective remedies for alleged human rights violations
There are numerous areas of convergence but several key factors distinguish forced evictions from other patterns ofdisplacement such as internal displacement, mass exodus, refugee flows and population transfer.
First, forced evictions can always be attributed directly to specific decisions, legislation or policies of States or to the failure of States to intervene to halt forced evictions by third parties. State responsibility for most forms of involuntary movement of people is virtually always evident. In cases of forced eviction, Governments are often actively involved in the actual movement of people from their homes. In other instances of displacement, people may flee for reasons of personal safety and security (even though government may be fully responsible for failing to prevent conditions of insecurity). International action on forced evictions has made a distinction between this practice and the related practices of forced expulsions over an international border and other acts of deportation.
Secondly, there is invariably an element of "force" or coercion involved in forced evictions. Forced evictions often involve the irreparable demolition of the homes of affected persons, sometimes as a form of punishment for political or other activities. In one country, public officials have announced their intention to evict and eventually deport any immigrants residing in homes arbitrarily classified as overcrowded. Eviction orders, with or without judicial backing, almost always precede or accompany the practice of forced eviction. This is not often the case with internal displacement.
Thirdly, virtually all instances of forced eviction are planned, formulated and often announced prior to being carried out. Forinstance, it is not uncommon for government declarations or judicial decisions to be issued prior to an eviction being carried out or for planned evictions to be included in government development or other policies or projects. Moreover, the removal or reduction of housing subsidies for low-income groups, for example, can have a severe impact on the number of evictions in a given society.
Fourthly, forced evictions can affect both individuals and groups. They can be either mass in character or of smaller scale. The starting-point for examining this practice from a human rights perspective must be the direct impact of forced evictions on the human rights of persons and groups affected. While the practice of forced eviction itself may constitute a violation of human rights, many additional human rights can also be severely compromised when such evictions occur.
Towards new measures of prevention, protection and redress
In his analytical report on forced evictions, the Secretary-General addressed the need for further legislative action on housing rights as a means of curbing the practice:
. . . The fact that the practice of forced evictions constitutes an act which violates the right to adequate housing and other human rights by implication, leads to the conlusion that there exists a substantial gap between legal norms and practice. The involuntary removal of persons, families and groups from their homes is a current practice in many countries which, in most cases, is contradictory to, if not a blatant infringement of, fundamental, internationally recognized human rights law. (E/CN.4/1994/20, para. 143.)
The report, submitted in accordance with Human Rights Council decision 1/102, aims at providing practical and operational tools to promote, monitor and implement the human right to adequate housing. The report also identifies a normative gap - the non-recognition in international human rights law of the human right to land. The report discussed the importance of, and proposed strategies to strengthen the legal framework to promote and implement the human right to land.
World Bank Operational Directive 4.30 on Involuntary Resettlement
The World Bank has been responsible for financing numerous development projects over the past decades which have resulted in the forced eviction of millions of people. In order to reduce the scale of evictions carried out in conjunction with such projects, the World Bank has issued Operational Directive 4.30 on Involuntary Resettlement. The following provisions are found within this directive and are meant to be complied with by all World Bank-funded projects :
‘2. Development projects that displace people involuntarily generally give rise to severe economic, social, and environmental problems: production systems are dismantled; productive assets and income sources are lost; people are relocated to environments where their productive skills may be less applicable and the competition for resources greater; community structures and social networks are weakened; kin groups are dispersed; and cultural identity, traditional authority, and the potential for mutual help are diminished. Involuntary resettlement may cause severe long term hardship, impoverishment, and environmental damage unless appropriate measures are carefully planned and carried out.'
The Myth of ‘Adequate' Housing in India
India , on the 60 th year of UDHR and the 61 st year of its Independence is still grappling with unmet basic housing needs of hundreds of thousands of its citizens. The world's largest democracy has millions of people living in conditions that cannot be called adequate by the farthest stretch of imagination. While a section of India 's teaming million is a witness to a historical economic boost another larger section live on pavements, unauthorized slums, squatter settlements, bastis and is under the constant threat of forced eviction.
In view of the heightened want for housing which can be termed as ‘adequate' and the frequent and forceful evictions of so many slum-dwellers, it is important to understand how the Indian Constitution and courts have interpreted the enforceability of social rights, especially the right to adequate housing. The Supreme Court in the landmark case of Olga Tellis v. Bombay Municipal Corporation (BMC) , has elaborated at great length on the right to adequate housing, shelter and livelihood as part of the all-encompassing Right to Life under Article 21.Some of the judgements following Olga Tellis also reiterate the same. The judgement handed down in this case expanded the right to life guaranteed under Article 21 of the Constitution to include within its scope, the right to livelihood, which in this context translated into the right to be permitted to remain on the pavements. And although the final orders in Olga Tellis found that the BMC Act was valid and that pavement dwellers should be evicted, the Supreme Court also laid down that this could be done only after arranging alternative accommodation for them. Therefore by commanding this strong order of providing alternate accommodation before eviction, the Supreme Court was in fact upholding the right of the pavement dwellers to shelter. It is interesting to note that more than 15 years after the Supreme Court judgement in 1985 was passed, due to the strong activism and pressure from NGOs and the pavement dwellers themselves, most of them have still not been evicted by the BMC. This judgment was perhaps the prelude to the Rehabilitation and Resettlement bill 2007 which is still pending with the Lok Sabha.
Of the other noteworthy recent cases following Olga Tellis, the most appalling being the Narmada judgement (October 2000), the Court has utterly failed to give due respect to this right by disregarding fundamental human rights and international obligations. Continued construction of the Sardar Sarovar Project dam and its significant impact on both the environment and hundreds and thousands of tribal people in the Narmada valley, who have been displaced with inadequate resettlement and rehabilitation options was the major issue here. The Court did not take into account the knowledge of the concerned authorities' failure to determine the total number of people to be displaced or find adequate land for their resettlement, and the incomplete resettlement of those already displaced, the Supreme Court ruled that, '...displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights…' and held that the construction of the dam would persist. The judgement contradicted all previous Supreme Court rulings that have upheld the right to shelter related to the right to life, as well as the decisions of the Narmada Water Disputes Tribunal.
Later decisions of the Supreme Court and some High Courts of the country have not been very consistent. While many judgements have dynamically upheld this ruling, there have been some rulings which have completely ignored the basic right to housing and shelter that has been interpreted to be a crucial part of an individual's right to life. The courts, however, have not been very unswerving in interpreting housing as a fundamental human right of all citizens. In some recent judgements, not only have they failed to uphold this right, but have actually regressed on their earlier rulings.
Recent Models of Economic Development with Land as Incentive
A variety of models of engagement have been proposed by Central and State Governments to attract large investors including the 'Special Economic Zones', 'Private-Public partnerships' and 'Build-Operate-and-Transfer'. These models provide incentives that may include tax and duty concessions, simplified regulations and provisions for infrastructure facilities, but most importantly, land made available by the state at desirable locations and low prices. To make the proposition more attractive, land is promised not just for the requirements of the planned economic activity, but also for other uses such as developing residential townships, business districts or entertainment hubs. Examples of such projects are the Bangalore Mysore Infrastructure Corridor, the proposed Reliance Haryana Special Economic Zone and the recently announced Ganga Expressway. Land for even such gigantic projects was and continues to be acquired using the coercive powers provided by the colonial Land Acquisition Act. It narrowly defined persons affected by an acquisition to be either land owners or occupiers (tenants), and limited compensation to purely monetary terms. Limitations of policy in terms of rehabilitation and resettlement of displaced and affected population forced the Government to draft the Rehabilitation and Resettlement Bill, 2007 still pending with the Parliament.
Rehabilitation and Resettlement Bill, 2007
Shortly before the winter session of Parliament ended, the government tabled the Rehabilitation and Resettlement Bill, 2007. The bill seeks to "provide for the rehabilitation and resettlement of persons affected by the acquisition of land for projects of public purpose or involuntary displacement due to any other reason". The bill seeks to establish an R&R administration at the central and state levels. This administration will be responsible for planning for and implementing R&R. The bill describes the process to be followed while planning and implementing R&R and prescribes how 'affected areas' and 'affected families' are to be identified and the quantum of benefits for different categories of the latter. The new Bill provides for benefits and compensation to people displaced by land acquisition purchases or any other involuntary displacement. For large scale displacement, the government shall conduct a social impact assessment, and appoint an Administrator for Rehabilitation and Resettlement to formulate and execute the rehabilitation and resettlement plan. While outlining the minimum benefits for displaced families, a post of Ombudsman has also been created to address the grievances in the process.
India stands at a very crucial juncture—at the crossroad of a displacement-development paradigm. The recent controversy over the acquisition of land in Singur in West Bengal for an automobile project raises larger issues. The plight of displaced and project-affected persons across the country shows that it is the development pattern, nature of rehabilitation packages and the “public purpose” declared by the state while acquiring land that need to be debated and redefined.
In a world where more than one billion people lack adequate housing, and where over 100 million are homeless how effective has been the UDHR in protecting housing rights of these individuals? In the wake of the 60 th Anniversary of the world's most translated document the question is very difficult to answer. The most beautiful approximation to the answer can perhaps be found in the words of Weisel –
"It's a sacred document. It's a sacred document because on one level it almost sounds utopian. But we know that Utopia, since 1516, we know that Utopia is a place that doesn't exist. But it does exist in the document. And the fact that it has become a kind of bible for the secular religion which is the human rights. When you speak about being discouraged, of course I am. But I am encouraged when I think of the human rights organizations that exist in the world today. You have more than two thousand committees and organizations working all over the planet for human rights. We never had so much good will coming from simple people.....the fact is that individuals now feel that they can make a difference in the lives of other individuals. So that is the value and the importance of the document. That fact that it's being celebrated is something which gives me hope. It's good.
It also means that it's needed. It means that some people still need protection. Intervention. Sympathy. Solidarity. There are still people in prison. There are still victims of injustice all over the world and they need help."
The right to adequate housing: Article 11, ICESCR; 14(2), CEDAW; 16(1) and 27(3), CRC; 5(e) (iii), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); 17(1), ICCPR; 8(1), ECHR; 8,11, 23, American Declaration on the Rights and Duties of Man, among others. The scope of the right to adequate housing has been clarified in Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing , UN Doc. E/1992/23, and reports of the UN Special Rapporteur on the right to adequate housing as a component of the right to a decent standard of living.
Centre on Housing Rights and Evictions (COHRE), www.cohre.org
Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups; (General Comment No. 4)
An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services; (General Comment No. 4)
Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by States parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. States parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increases. In societies where natural materials constitute the chief sources of building materials for housing, steps should be taken by States parties to ensure the availability of such materials; (General Comment No. 4)
Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well. The Committee encourages States parties to comprehensively apply the Health Principles of Housing prepared by WHO which view housing as the environmental factor most frequently associated with conditions for disease in epidemiological analyses; i.e. inadequate and deficient housing and living conditions are invariably associated with higher mortality and morbidity rates; (General Comment No. 4)
Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups. Within many States parties increasing access to land by landless or impoverished segments of the society should constitute a central policy goal. Discernible governmental obligations need to be developed aiming to substantiate the right of all to a secure place to live in peace and dignity, including access to land as an entitlement; (General Comment No. 4)
Adequate housing must be in a location which allows access to employment options, health-care services, schools, child-care centres and other social facilities. This is true both in large cities and in rural areas where the temporal and financial costs of getting to and from the place of work can place excessive demands upon the budgets of poor households. Similarly, housing should not be built on polluted sites nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants; (General Comment No. 4)
The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing. Activities geared towards development or modernization in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed, and that, inter alia, modern technological facilities, as appropriate are also ensured. (General Comment No. 4)
‘Poor squeezed out by Mumbai's dream plan: India's biggest city is razing its shanty towns', The Guardian , (1 Mar. 2005), http://www.guardian.co.uk/india/story/0,12559,1427647,00.html ; Bombay First and McKinsey & Company, Inc., Vision Mumbai: Transforming Mumbaiinto a world-class city , (Sep. 2003), http://www.bombayfirst.org/McKinseyReport.pdf ; Indian People's Tribunal, Bulldozing Rights , (June 2005).
World Organization Against Torture (OMCT) and HIC-HLRN, ‘ Over 300,000 people to be forcefully evicted from Yamuna Pushta in Delhi: 40,000 homes demolished so far ' [article on website], (5 May 2004), http://www.hlrn.org/cases_files/IND-FE 050504.doc ; United Nations, ‘UN Expert on Housing “Deeply Concerned” Over Forced Evictions in Indian Capital'[article on website], (29 Oct. 2004), http://www2.unog.ch/news2/documents/newsen/hr04107e.htm