Statement by the Special Rapporteur on adequate housing at the 16th session of the Human Rights Council

8 March 2011

Mr. President, distinguished delegates, ladies and gentlemen,

I am very pleased to have the opportunity to address the Human Rights Council today, after three years as the Special Rapporteur on adequate housing.

I’m here today to present my last thematic report, my reports on my missions to Croatia and Kazakhstan, my preliminary note on my mission to the World Bank Group and my report summarizing the communications sent to and received from Governments in relation with alleged violations of the right to adequate housing.

Coming from a practitioner background on urban and housing policies, I believe that my main contribution to the mandate during these past three years has been to support States and other stake holders in bridging the gap between the international human rights legal framework and housing and territorial policies capable to fulfill, protect and promote those rights. In this context, I have tried on one hand to produce materials “translating” the right to adequate housing international legal framework into common citizens and policy makers’ language, and this in a great effort to disseminate this knowledge. One of the examples of this effort is the guide and leaflet on development based evictions that I distributed in this room today and the website righttohousing.org, both available in different languages. At the same time during the missions I undertook and in my thematic reports I have always tried to analyze actual policies and to provide policy recommendations.

On the other hand, I have to confess that it has not always been easy to combine my work as urban planning professor in a Brazilian University  with the requirements of the mandate. In this context, I apologize here for the number of “no”s I had to say concerning my participation to very important events and for the limited time I’m able to undertake country visits.

Finally as is today March 8 – International Women Day I am pleased to announce that I decided to work on the issue of Women and Access to Housing and Land this year.

Thematic report: the right to adequate housing in post-conflict and post-disaster reconstruction processes
Before entering into the subject of my report, I would like to thank the governments of Rwanda and of the Kingdom of Cambodia for the comments I was provided with on the draft version of my report. Regrettably, these comments were received too late to be integrated in the final version of the report, which I had to deliver early December last year. As it is my intention to further work on this issue, I would be pleased to continue the dialogue engaged with the authorities of these two countries and I would be happy to discuss with them about the possibility to undertake a formal visit to their respective countries.

Relevance of the topic

Since the 1990s there has been a growing recognition of the importance of adopting a human rights approach in the resolution of conflicts and peacebuilding. It has taken longer for the human rights implications of post-disaster responses to be clearly recognized, but we have now important documents such as the United Nations Inter-Agency Standing Committee (IASC) Operational Guidelines and Field Manual on Human Rights protection in situations of  Natural Disasters.

This recognition is a positive development but it is not enough: human rights principles and standards have to be translated into concrete policies.

In both post-disaster and post-conflict situations there is an inevitable tension between the pressing need to act quickly and decisively in order to facilitate the return of the displaced to their lands and homes, and the need to be comprehensive and thorough in dealing with what are in fact very complex questions. In this context, too often human rights and in particular the right to adequate housing have been “sacrificed”-they have not been adequately or sufficiently translated into concrete actions. Particularly, because of the political economy of land, actors involved in post-conflict and post-disaster reconstruction processes have skirted around the issue of land rights, which is crucial for the realization of the right to adequate housing and have not made institutional or financial provision for either the acquisition of well located land for the landless or for creating more secure rights for the vulnerable in situ. This has lead to disastrous consequences, particularly for the most vulnerable segments of the population.

In my report I explored why it is crucial to adopt a human rights approach in these situations, including why it is so important to truly integrate the right to adequate housing and what does this mean concretely. I would like to underline that while there are differences between post-disaster and post-conflict contexts my report mainly focuses on common issues and questions that arise in both contexts.

The importance of integrating the right to adequate housing in post-conflict and post-disaster reconstruction processes

The adoption of a human rights based approach, and particularly the integration of the right to adequate housing in reconstruction processes it is of particular value to understand the nature of the impact of conflict and disasters, and therefore to understand housing not only as a physical but also or primarily as a social asset. This approach it is also critically important to shape the reconstruction processes in terms of longer-term sustainability and not only as initial relief operations. Finally, thinking in terms of human rights means to orient our efforts toward the most affected by conflicts and disasters, the most vulnerable, considering them as the holders of rights to be fulfilled and not only victims to be supported. 

Housing as a social asset

The impact of conflicts and disasters on the right to adequate housing should not be measured simply in terms of numbers of physical assets destroyed and people displaced. It should also and perhaps primarily be understood in terms of the extent of disruption of social relationships, networks and assets; destruction of home-centred livelihoods built up over many years; and the undermining of complex, multi-layered land tenure rights.

Destruction of housing as a physical asset can be addressed through repair, rehabilitation and reconstruction. Destruction of housing as a social asset, on the other hand, requires more multi-faceted and longer-term responses based on a deeper understanding of the tenure systems and histories of the affected settlements and, in particular, of their poorer and marginalized residents. In preparing for reconstruction and development, all relevant parties and actors should therefore acknowledge that housing has an inherent social value of vital importance for social stability, alleviation of poverty and development.

Any response to the impacts of conflicts or disasters on the right to adequate housing should thus go beyond a focus on the damage, loss or destruction of shelter and infrastructure and should seek to address, inter alia the disruption of social and economic relationships and networks; the destruction of home-centred livelihoods; the specific rights and concerns of women and other groups particularly vulnerable to discrimination; compromised access to facilities, amenities and livelihood opportunities; the loss of tenure security, particularly by those who were landless or had been living under customary or informal tenure systems prior to the disaster or conflict. Vulnerable groups, including those who were vulnerable before the disaster or conflict need to be protected against the risk of dispossession as well as return to inequality.

Longer-term sustainability

In crisis situations, where the initial, overriding objectives for Government and for those external actors engaged on the ground would first and foremost be of an emergency shelter and basic livelihood support nature, housing rights and land tenure challenges may seem impossible to address.
In my report, supported by some case studies, I discussed the importance of addressing these challenges from an early stage. I concluded that if we fail to do so we cannot guarantee long-term sustainable solutions, to the contrary we may engender counterproductive longer-term consequences. I therefore make a strong call to all the actors concerned to integrate the right to adequate housing in the wake of a specific disaster or conflict, as a key component of planning, preparation and implementation of any ensuing humanitarian, reconstruction and development responses.

Focus on the most vulnerable and redressing mechanisms

The poor often stand to lose most in disaster contexts because they often have to settle on fragile and exposed land that is highly susceptible to the effects of disasters. When a disaster strikes, their pre-existing vulnerabilities are exacerbated, with women, children and marginalized groups bearing the brunt of the impact. After the disaster, the poor often also find their attempts to return to their homes officially denied on the grounds that return would be unsafe, and/or not permissible as they did not have official proof of a right to live there in the first place. In the case of conflicts, the displacement and dispossession of specific groups are often deliberate strategies of one group or side in the conflict against another. There is a concern that the crisis triggered by disasters and conflicts might be exacerbated for many due to the threat of dispossession, specially where power relations might place some displaced persons at a disadvantage.

How to incorporate the right to adequate housing in the reconstruction efforts

The report I’m presenting today highlights three key issues that I consider crucial to incorporate the right to adequate housing in reconstruction efforts, namely security of tenure, participation and coordination.

Security of tenure

Security of tenure is a fundamentally important dimension of the right to adequate housing.

In my report I advocate for a rapid assessment and analysis of pre-existing tenure and property rights systems in the immediate aftermath of a disaster or conflict. The aims of this assessment should be: (1) to guide on urgent steps to be taken to protect the right to adequate housing and tenure security of all, but particularly the poorer and marginalized members of society; (2) to identify areas of opportunity where, with the presence and support of bilateral and multilateral international agencies, opportunities could arise for improvement and innovation (for example securing of previously unavailable housing-related rights and entitlements for women); (3) to identify and warn against risk areas where  poorly informed actions would result in further housing rights violations. This rapid assessment should be an essential step towards the formulation of a more detailed and comprehensive land management, allocation and registration strategy for sustainable rehabilitation and reconstruction.

Consultation and Participation

The long-term success of post-disaster and post-conflict responses to a great extent depends on a properly informed understanding of the local context. It also requires high levels of consultation with and direct involvement of the people directly affected.

Given the urgent, crisis nature of post-conflict and post-disaster situations, the approach of collecting and analysing detailed information, and of direct participation by the people affected, may seem difficult to achieve.

But people directly affected by conflicts and crises are not mere helpless victims. They are invariably the first people “on the scene” and are often the first to take some form of action. With the correct approach and support from the national government and outside agencies, the people directly affected by disasters and conflicts ought to remain directly involved despite the enormity of the challenges they face. Community-based reconstruction, linked to planning and reconstruction processes developed at the municipal and national levels, should be promoted wherever possible. Rushed, contractor driven reconstruction projects can deliver quickly but usually is resumed to the construction of housing units, which is far from being a human rights based approach to reconstruction.

Mr. President, distinguished delegates, ladies and gentlemen,  I’m looking forward to further collaborate with you all on such an important issue to meet the huge challenges before us.

Mission to the Republic of Croatia

I would like now to present the report I prepared following the official visit to the Republic of Croatia (5 to 13 July 2010). I would first like to thank you the Government for its invitation, constructive dialogue and support. This report is closely related to the thematic report I just presented since the current housing situation in Croatia is strongly shaped by a complex combination of two factors: the effects of the armed conflict on housing and the transition from a State-run to a market-oriented approach to housing. In addition, the economic recession in the country has posed additional challenges to the already difficult housing situation.

The destruction of housing stock and infrastructure as a result of the armed conflict of 1991-1995 and the number of displaced persons and refugees caused significant difficulties in the access to adequate housing in Croatia. Since then, the Government of Croatia has made great efforts to reconstruct damaged houses, restitute occupied private property, attract ethnic Croats who fled hostilities from other parts of former Yugoslavia to depopulated areas, and more recently to prepare the ground for the return of Croat refugees from abroad.

While significant achievements have been made in the reconstruction and restitution of houses after the conflict, there are also several drawbacks in the measures adopted by the Government in the context of the transition and post-conflict recovery. Because of time constraints, I would like to refer only to one of the most striking examples which concerns the right of occupants know as former occupancy tenancy rights (OTR) holders to stay in their apartments and buy them at rates same as others. While a great number of OTR holders were able to buy them under favourable conditions, those OTR holders residing in privately owned houses or in military dwellings, were full not able to do so. In addition, more than one third of the applications for the different programmes offered over time had been rejected.  Numerous persons were not able to submit their documented application within the tight deadlines, especially outside the areas of special State concern. For this reason, the process is not completed yet.

In this context, I welcome a positive development which followed my visit. On 2 September 2010 the Government adopted a Decision on the buy-off option for State-owned flats, which recognizes the purchasing option in the regions outside of areas of special state concern, for former OTR holders and Housing Care Program residents. I would like to urge the Government to simplify the implementation procedures of this decision and avoid any deadlines.

To close this chapter of Croatia’s past and to be able to open a new era of adequate housing for all, I strongly recommend the Government to accelerate the implementation of the Housing Care Programmes for former OTR holders; further expedite the process of issuing first-instance and appeal decisions on reconstruction applications; and consider reopening the processes of application for programmes which provide durable housing solutions, to all applicants who missed the 2005 deadline.

Finally, to face the present and upcoming housing challenges, I call on the Government to adopt comprehensive housing policies, to be implemented without discrimination and addressed particularly to vulnerable groups, including Roma communities.

On this regard, I would like to mention my participation last January in the International Conference on Improving Access to Housing for Roma where I noted with concern that despite the plans and declarations formulated by European countries, little progress on the ground has been made to improve housing conditions of Roma and to respect their right to not be displaced from their settlements.

Mission to Kazakhstan

Concerning my visit to Kazakhstan (6 to 13 September 2010), I would like to thank the Government for its invitation, constructive dialogue and support. I would also like to thank the Government for the second set of comments provided to my draft report and say that unfortunately I wasn’t able to take these comments into consideration as they arrived after the finalization of my report.

My visit to Kazakhstan focused on two main issues, namely: large-scale evictions or displacement of individuals and communities living in or around the cities of Astana and Almaty and the impact of the global economic and financial crises on the enjoyment of the right to adequate housing.

A first issue of concern is the high rate of demolition of informal settlements and forced evictions taking place without prior notification, any form of judicial control or review, or any provision of adequate compensation or alternative accommodation. During my mission, I received reports and saw documentary evidence of demolitions conducted by public officials using force, in some cases during winter when the temperature was well below zero. I was dismayed to hear that a large number of vulnerable individuals, including pregnant women, children and persons with disabilities, had been made homeless as a result of such demolitions

As detailed in my report, the national legal framework and the law enforcement practice in the field of evictions are not consistent with international human rights law. I’m particularly concerned that national courts tend to interpret the concepts of “State needs” and “investment projects” in a very broad manner, so as to justify forced evictions in the framework of investment projects carried out by private construction companies and financed by private investment. In this context, I’d like to emphasize the fact that the implementation of general plans of development cannot constitute a sufficient legal justification for forced eviction in the absence of one of the exceptional circumstances provided for by national legislation.

In this context, I call for a comprehensive approach to address forced evictions, security of tenure, the legalization of informal settlements and slum upgrading, and for open, participatory and meaningful consultation with affected residents and communities prior to implementing development and urban renewal projects.

In particular, I urge Kazakhstan to adopt a specific law on evictions, which should be developed in accordance with existing international human rights standards. The new law should ensure that evictions are carried out only in exceptional circumstances and only for the purpose of promoting general welfare. National courts should interpret such circunstances in a restrictive manner and the implementation of general plans of city development should not provide sufficient justification for fevictions.

While the new law is developed, a total moratorium on mass evictions should be implemented.

Concerning the financial crisis, a large number of shareholders have been deceived by private construction companies who left the country with their savings without completing the construction of the buildings, while others have been evicted, or have been threatened with eviction, as a result of their inability to repay credits and mortgage loans.

Despite the emergency measures taken by the Government to mitigate the impact of the financial crisis on the effective enjoyment of the right to adequate housing and to ensure the completion of construction projects slowed or halted as a result of the crisis, dozen of thousands of shareholders are still waiting to receive their apartments.

I’m also concerned about reported cases of forced eviction as a result of the inability of low-income households to repay their credits and mortgage loans. As a result of the extrajudicial sale of their property by banks or other financial institutions, a number of individuals and households have become homeless or been forced to move in to poor-quality housing.

I believe that the financial crisis has shown that the creation of an enabling environment to attract foreign investment and support financial activities is not in itself sufficient to ensure access to adequate and affordable housing for all, and that effective regulation and close monitoring by the State of private sector activities is needed. In this context, the State should review its legislation and policies with regard to access to mortgage-based credit for low-income households in order to ensure that commercial banks and financial institutions take into account the limited repayment capacity of these households. Furthermore, financial services for low-income groups must be developed in consultation with these groups, as they are best able to assess their repayment capacity and ensure the development of systems that meet their effective needs.

Preliminary note mission to the World Bank Group

Last year I undertook an official visit to the World Bank Group. I wish to express my sincere gratitude to the President of the World Bank Group for the invitation, the constructive dialogue and the support of the World Bank staff throughout the visit.

I’m aware that the World Bank doesn’t agree with all the statements of my preliminary note. I’m currently preparing the full mission report that I will present to the Human Rights Council in 2012. In this context, I look forward to continue the dialogue engaged with the World Bank and to further collaborate with this institution.

I thank you for your attention and look forward to my interaction with you.