Bridges Across Borders Cambodia

What are Housing Rights?

Housing rights are all those human rights that help people live in a decent and secure home. The most important housing right is the right to adequate housing. It is the right of everyone to live in their home in security, peace and dignity. Therefore, access to adequate housing should not just be determined by a person's social or economic status.

The right to adequate housing is contained in the provisions of many international treaties. The most important is in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Cambodia ratified this treaty in 1992.

In 1991, the United Nations Committee on Economic, Social and Cultural Rights issued its General Comment 4 to explain what this means. The Committee said there are seven elements to the right to adequate housing:

1. Legal security of tenure: Everybody has the right to possess a degree of security of tenure that guarantees legal protection against forced eviction, harassment and other threats. The Committee said that this applies to all types of housing whether it is a mansion or a shack in an informal settlement.
2. Services and materials: Having a home not only means the right to access materials for building but that everyone has the right to essential services, for example water, sanitation, energy, garbage disposal, site drainage, and emergency services.
3. Affordability: Housing does not have to be made free, but the personal or household financial costs needed to get housing should not mean that people cannot satisfy their other basic needs.
4. Habitability: Adequate housing must provide inhabitants with adequate space and protect them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors.
5. Accessibility: Adequate housing must be physically accessible. This means making housing accessible for people with disabilities, or ensuring that sufficient land is made available to build new housing.
6. Location: Adequate housing must be in a location that allows access to employment options, health-care services, schools, child-care centers and other social facilities. Housing should not be built on polluted sites nor near pollution sources that threaten the right to health of residents.
7. Cultural adequacy: 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.

What is forced eviction?

Forced eviction is the removal of someone from his/her home or land against his/her will and without the appropriate protections being given. These protections were authoritatively defined in General Comment 7, the Right to Adequate Housing, of the UN Committee on Economic, Social and Cultural Rights. The United Nations Human Rights Commission has said that “…the practice of forced evictions constitutes a gross violation of human rights, in particular the right to adequate housing.” Local governments must ensure that its officials, as well as other actors in the municipality, do not carry out forced evictions.

The United Nations Committee on Economic, Social and Cultural Rights has said that evictions “can only be justified in the most exceptional circumstances, an in accordance with the relevant principles of international law.” An example of ‘exceptional circumstances' in which forced evictions could be carried out without violating international law, might be tenants persistently refusing to pay rent and/or destroying rented property.

Even in such ‘exceptional circumstances', certain procedural requirements must still be fulfilled:

Firstly, local governments must ensure, prior to 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.

Secondly, evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights. Governments must therefore ensure that adequate alternative housing is available to affected persons.

Finally, in those rare cases where eviction is considered justified, it must be carried out in strict compliance with relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality. These include:

1. Adequate and reasonable notice to be given to all affected persons prior to the scheduled date of eviction;
2. 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;
3. Government officials or their representatives to be present during any eviction, especially where groups of people are involved;
4. All persons carrying out the eviction to be properly identified;
5. Evictions not to take place in particularly bad weather or at night, unless the affected persons consent otherwise;
6. Provision of legal remedies; and
7. Provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

Can people living informally on land be evicted?

In many of the world's developing countries, urban centers include large informal settlements where the residents and/or their landlords do not have legal title to be on the land. Although people living in these informal settlements are often the poorest residents in such a locality, they contribute significantly to the economy, for example through providing casual labor and running small businesses. However, since the government has failed to ensure that sufficient affordable land and housing is available for low-income communities are often forced to live in informal settlements.

Human rights, including the right to housing, also protect residents of informal settlements from forced eviction. Where the local government wants to use public land occupied by the poor, or help private persons recover land occupied by the poor, the local government should consult with the affected residents to minimize any relocation and to ensure that no-one is left homeless. The other protections mentioned above must also be put in place.

What does ‘adequate resettlement' mean?

Principles for adequate resettlement can be found in a number of documents. One of them is the UN Comprehensive Human Rights Guidelines on Development-Based Displacement, which is relevant because development projects often lead to evictions.

These guidelines state that resettlement must occur in a just and equitable manner and in full accordance with law of general application. All persons, groups and communities have the right to alternative land or housing that is safe, secure, accessible, affordable and habitable. In the event of resettlement, certain criteria should be adhered to:

• A full resettlement policy must first be developed before any resettlement can take place.
• The policy must be consistent with the Guidelines and internationally recognized human rights.
• Whoever proposes carrying out the resettlement shall be required by law to pay for any costs associated therewith, including all resettlement costs.
• No affected persons, groups or communities shall suffer detriment as far as their human rights are concerned, nor shall their right to the continuous improvement of living condition be subject to infringement. This applies equally to host communities at resettlement sites, and affected persons, groups and communities subjected to forced eviction.
• That affected persons, groups and communities provide their full and informed consent as regards the relocation site. The State shall provide all necessary amenities and services and economic opportunities.
• Sufficient information shall be provided to affected persons, groups and communities including information on the use the eviction dwelling or site is to be put to and the persons, groups or communities who will benefit from the evicted site. Particular attention must be given to ensure that indigenous peoples, ethnic minorities, the landless, women and children are represented and included in this process.
• The entire resettlement process should be carried out in full consultation and participation with the affected persons, groups and communities. In particular, States should take into account all alternative plans proposed by the affected persons, groups and communities.
• Local government officials and neutral observers, properly identified, shall be present during the resettlement to as to ensure that no force, violence or intimidation is involved.

This information was adapted from a publication of the Centre on Housing Rights and Evictions.