Right to Housing, Forced Evictions and Human Rights

Dr Gyan Basnet

For people to enjoy an adequate standard of living they first need a place in which to live. Man is basically a social being and as such needs to live in collectives in a safe, secure and meaningful habitat. Housing is therefore the central hub of everyday living. It comprises a physical space, which provides personal and family privacy and security with warmth on cold days and protection against the heat when it is hot. The human right to adequate housing recognises that every man, woman, youth and child has the right to acquire and maintain a secure home and community in which to live in peace with dignity. The need to take this right to housing more seriously has received considerable attention nationally and internationally over the last few years.

The right to adequate housing is a universal right: it is recognized at the international level and in more than one hundred national constitutions throughout the world. It is a right that applies to every individual person. Denial of it, de jure or de facto, can bring in its wake dramatic consequences and cause numerous violations of human rights in other areas: these latter include the rights to employment, to education, to sanitation and safe water, to health and, most importantly, to participation in decision making affecting people’s own lives.

International human rights law recognizes the right of all to an adequate standard of living, and that includes adequate housing. Despite the central place of this right within the international and national human rights system, available statistics show that well over a billion people are inadequately housed. Millions of people live in life- or health-threatening conditions, in overcrowded slums and informal settlements, or in conditions that do little to enhance their human rights and their dignity. Millions more are forcibly evicted, or threatened with forced eviction, from their homes every year despite the fact that such evictions are illegal in international law.

In the Nepalese context, Article 33 of the Interim Constitution of Nepal of 2007 aims to establish a right for all citizens to education, health, housing, and employment. Numerous other articles in Part 3 of the Interim Constitution provide welfare rights such as to health, security, and food as fundamental rights important to achieving an adequate standard of living. Despite this constitutional protection, millions of our people suffer from inadequate standards in housing, health and food. Questions must be asked. Why is there so little being done to improve matters? Where is the proper policy and planning? Why is there so much disparity and discrimination in the distribution of resources? Why do only a few privileged elites and new elites enjoy most of the country’s resources and welfare programmes?

Under the Maoist-led government, Kathmandu municipality officials and the Armed Police Force have demolished many areas of the capital evicting in the process hundreds of households and failing to provide alternative accommodation. The residents, including women and school children, had been living there for many years but were evicted to make way for a planned urban development project: many were left homeless. The Bhattarai-led alliance has been forcibly bulldozing the homes of people for many years in the name of development and carrying out road widening schemes without complying with the proper legal procedures. The evictions and the destruction of people’s residences were not carried out in compliance with applicable due process standards, and the government has not provided compensation or social services to those affected, including children, International human rights law has been designed to protect the full range of human rights required for people to enjoy a full, free, safe, secure and healthy life. Many further questions need to be asked at this point: Do the forced evictions not constitute a gross violation of human rights, in particular the right to adequate housing? Should our government not scrupulously avoid any type of forced eviction that does not conform to international human rights law? Should the displaced people not be compensated for their loss, and be assisted both in the removal and subsequently in the transition stage once they have arrived at the relocation site?

Right to Adequate Housing

The right to adequate housing is a universal right, recognized at international level and in more than one hundred national constitutions throughout the world. It is a right that is recognized as valid for each individual person. Article 25 of the Universal Declaration of Human Rights 1948 grants to all the right to a standard of living adequate for the health and well being of each person and his family, including food, clothing and housing. Article 17 of the ICCPR states: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation.’ Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states: ‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing.’ According to these international human rights instruments the right to housing should be understood as meaning more than just a roof and four walls. It should be seen as the right to live somewhere in security, peace and dignity.

General Comment No. 4 of the ICESCR also grants the right to adequate housing, and Article 5 of the International Convention on the Elimination of All Forms of Discrimination against Women stipulates adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. Furthermore, the Convention on the Rights of the Child, the United Nations’ Principles on Housing and Property Restitution for Refugees and Displaced Persons, the Convention Relating to the Status of Refugees, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, and the Declaration on the Rights of Indigenous Peoples emphasise the right to adequate housing. Several constitutions also either protect the right to adequate housing or outline the State’s general responsibility to ensure adequate housing and living conditions for all. Courts of various legal systems have also adjudicated cases involving forced evictions and tenant protection that relating to the enjoyment of this right.

The right to adequate housing should be understood in broad terms as ‘including the right of every person to have access to a home and community; it should be assured to all persons irrespective of income or access to economic resources.’ According to the U.N. body that oversees the realization by governments of the right to adequate housing; ‘the right to housing should not be interpreted in a narrow or restricted sense which equates it with, for example, the shelter provided by merely having a roof over one’s head. Rather it should be seen as the right to live somewhere in security, peace and dignity.’

Miloon Kothari, the former U.N. Special Rapporteur for the right to housing argues: ‘The human right to adequate housing is the right of every man, woman, youth and child to gain and sustain a secure home and a community in which to live in peace and dignity.’ The Special Rapporteur further emphasizes that the realization of the right to adequate housing is intimately linked to the realization of other basic human rights, such as ‘the right to life, the right to protection of one’s private life, of one’s family and one’s home, the right not to be subjected to inhuman or degrading treatment, the right to land, the right to food, the right to water and the right to health’. He has also insisted that its realization is tied to respect of the fundamental principles of non-discrimination and gender equality.

Nepal: Rhetoric of the Right

Article 33 of the Interim Constitution of Nepal 2007 provides for the pursuance of a policy of establishing the right of all citizens to education, health, housing, employment and food sovereignty. Article 12 provides that every person shall have the right to live with dignity; Article 13 provides the right to equality; Article 18 provides the right to social security; and Article 21 clearly mentions the right to social justice. These provisions form part of the right to life and are very much related to the right to adequate housing. The right to housing is mentioned under ‘directive principles’ and ‘states policies’ in the Interim Constitution: it may thus not be enforceable in a court of law, but this does not mean that the state is absolved from responsibility for it. It is argued that ‘directive principles’ and ‘state policies’ outline the fundamental guidelines that the state must strive to accomplish. In India, the Supreme Court has interpreted the right to adequate housing as a fundamental right protected under Article 21 of the Indian Constitution as a part of the right to life.

Human rights obligations are defined and guaranteed by international customary and international human rights treaties: they create binding obligations on states that have ratified them to give effect to these rights. Under international human rights law, states have, firstly, a duty to respect the housing found by people themselves by abstaining from forcible evictions and displacement. Secondly, they must protect the tenure of existing housing against interference or unjustified evictions by third parties, and they must adopt and enforce the necessary regulations to ensure the necessary quality of housing. Thirdly, states have an obligation through regulatory functions to facilitate the opportunity of all to find affordable housing. Fourthly, regarding particularly vulnerable groups, states have to provide necessary housing when individuals or groups cannot manage to do so themselves.

The right to adequate housing is a core component of the right to an adequate standard of accommodation that is essential for dignified living. Nepal has its tripartite obligations to respect, protect and fulfil this right to adequate housing. These obligations are derived not only from the constitution but also from the ICESCR and from various other international human rights covenants to which Nepal is a party. The obligation to respect requires that our government refrain from interfering directly or indirectly with the enjoyment of the right to adequate housing. The obligation to protect means preventing third parties from interfering with the same right, and the obligation to fulfil requires adopting appropriate legislative, administrative, budgetary, judicial, promotional and other measures to realize fully the right. At which point the question must be asked: has our government ever tried to address these issues seriously?

There is no indication of any improvement made since the country entered into the democratic process a few decades ago. There are growing problems not only of homelessness and inadequate housing but there are also greater disparities between the ‘haves’ and the ‘have nots’ and between city dwellers and those who live outside. Thousands were displaced internally during the ten-year so-called Maoist People’s War. People’s properties and land were looted and occupied forcibly by the Maoists. The government has done nothing yet to address these issues even though the country entered into the peace process seven years ago. People displaced during that horrible time still cannot go back to their homes: the properties that they lost have still not been returned to them. Even in the last few years hundreds of people including women and children have been evicted forcibly from their homes to make way for a planned urban development project, leaving many of them homeless and destitute. There remains a disturbingly large gap between the standards set out in principles and those adopted in practice in our country.

Does our government not have an obligation at the very least to respect due procedures, to inform people affected well in advance, and to ensure the availability of alternative housing with basic infrastructure and services before such dramatic action is taken? International human rights, especially the Committee on Economic and Social Rights, repeatedly emphasize the prohibition of forced evictions. A forced eviction 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.’ For the Committee, forced evictions are prima facie incompatible with the obligations of the ICESCR that ‘all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.’ Our government, however, has failed to ensure that alternative housing arrangements are adequate and sustainable. In India, the Supreme Court has for a long time recognized that the right to life includes both the right to adequate housing and the right to protection from forced eviction.

Taking Right Seriously

The government must take this right seriously. Equal opportunities must be provided for all and special policies and plans should address the needs of the homeless, the backward classes and the most vulnerable in our society. The government should provide adequate alternative housing and infrastructure for those forcibly evicted as well as compensation for their loss of livelihood and for the violation of their human rights. Any relocation plan should consider the people’s enjoyment of their economic, social and cultural rights including their right to work and to have dignified living conditions. International law demands complete rehabilitation, taking into account the needs of the special groups: women, children and the aged.

All human rights are interdependent, indivisible and interrelated. In other words, the violation of the right to adequate housing may affect the enjoyment of a wide range of other human rights including those to work, to health, to social security, to vote, to privacy and to education. A forced eviction to a place without employment opportunities may bar an individual from earning a living, and if houses and settlements there have limited or no safe drinking water and sanitation, their residents may fall seriously ill. Thus, Nepal needs to formulate long-term policies and plans to provide adequate housing for all.

(Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Constitutional Lawyer in the Supreme Court. Email: gyanbasnet@aol.com)

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