GENERAL COMMENT 7 (1997)

The right to adequate housing: forced evictions

(Article 11[1] of the International Covenant on Economic, Social and Cultural Rights)

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 signifi�cant 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 impli�cations of such practices in terms of the obligations contained in the Covenant.

2. � The international community has long rec�ognized 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 relo�cation 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 recog�nized. [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 cir�cumstances 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 tau�tology, while others have criticized the expression "illegal evictions" on the ground that it assumes that the relevant law pro�vides 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 sub�jective 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.

4. � 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 protec�tion. The prohibition on forced evictions does not, however, apply to evictions car�ried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights.

5. � The practice of forced evictions is wide�spread and affects persons in both devel�oped 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 prac�tice 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.

6. � 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 exo�duses 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 Par�ties. 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 demo�cratic society".

7. � Many instances of forced eviction are asso�ciated with violence, such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence.

8. � 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 beautifi�cation programmes, the clearing of land for agricultural purposes, unbridled speculation in land, or the holding of major sporting events like the Olympic Games.

9. � In essence, the obligations of States Parties to the Covenant in relation to forced evic�tions are based on article 11.1, read in con�junction 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 evic�tions, the reference in article 2.1 to progres�sive achievement based on the availability of resources will rarely be relevant. The State itself must refrain from forced evic�tions and ensure that the law is enforced against its agents or third parties who carry out forced evictions (as defined in para. 3 above). Moreover, this approach is rein�forced by article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protec�tion. 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.

10. Article 2.1 of the Covenant requires States Parties to use "all appropriate means", including the adoption of legislative meas�ures, to promote all the rights protected under the Covenant. Although the Commit�tee 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 evic�tions 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 circum�stances under which evictions may be car�ried out. The legislation must also apply to all agents acting under the authority of the State or who are accountable to it. More-over, 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 ade�quate to prevent and, if appropriate, punish forced evictions carried out, without appro�priate 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 ade�quate housing and repeal or amend any legislation or policies that are inconsistent with the requirements of the Covenant.

11. Women, children, youth, older persons, indigenous people, ethnic and other minori�ties, 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 dis�crimination which often apply in relation to property rights (including home ownership) or rights of access to property or accommo�dation, and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. The non-discrimi�nation 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 discrimina�tion is involved.

12. Whereas some evictions may be justifiable, such as in the case of persistent non-pay�ment of rent or of damage to rented property without any reasonable cause, it is incum�bent upon the relevant authorities to ensure that they are carried out in a manner war�ranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected.

13. 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 con�cerning prohibitions on the displacement of the civilian population and the destruction of private property as these relate to the practice of forced eviction.

14. 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 compen�sation 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".

15. 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 ac�cordance with general principles of reasonableness and proportionality. In this regard it is especially pertinent to recall General Comment 16 of the Human Rights Committee, relating to article 17 of the International Covenant on Civil and Politi�cal Rights, which states that interference with a person’s home can only take place "in cases envisaged by the law". The Com�mittee 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 cir�cumstances". The Committee also indicated that "relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted".

16. 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 Cove�nants 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 sched�uled 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) evic�tions not to take place in particularly bad weather or at night unless the affected per�sons 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.

17. 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 ade�quate alternative housing, resettlement or access to productive land, as the case may be, is available.

18. The Committee is aware that various devel�opment projects financed by international agencies within the territories of State Par�ties 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 dis�placement of persons without the provision of all appropriate protection and compensa�tion. 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] �

19. Some institutions, such as the World Bank and the Organization for Economic Coop�eration 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 pro-jects, such as dam-building and other major energy projects. Full respect for such guidelines, insofar as they reflect the obli�gations contained in the Covenant, is essen�tial on the part of both the agencies them�selves 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 enjoy�ment of all human rights, the lack of devel�opment may not be invoked to justify the abridgement of internationally recognized human rights" (Part I, para. 10).

20. 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 in�cludes information relating to (a) the "num�ber 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] �

21. Information is also sought as to "measures taken during, inter alia, urban renewal pro�grammes, redevelopment projects, site up�grading, preparation for international events (Olympics and other sporting competitions, exhibitions, conferences, etc.), ‘beautiful city’ campaigns, etc. which guarantee pro�tection from eviction or guarantee rehousing based on mutual consent, by any persons living on or near to affected sites". [8] � How�ever, 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.

22. Some States Parties have indicated that information of this nature is not available. The Committee recalls that effective moni�toring 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.

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