Tag Archives: housing

COHRE archive back online

by Rhodri C. Williams

Its been some time since the mysterious demise of the Centre on Housing Rights and Evictions (COHRE), the protean Housing, Land and Property (HLP) rights NGO that inspired and spun off so many others. One of the most direct successors to COHRE, the Global Initiative for Economic Social and Cultural Rights (GI-ESCR) was early out in placing a selection of COHRE reports and manuals in their resource library. However, COHRE itself, evicted from the web, had ceased to exist as completely as if it had never existed.

Having stumbled across a fully functioning COHRE website this morning on precisely its old, familiar URL, I am happy to announce that the org is back as a resource, even if it is no longer an active force. The site itself is frozen in time in Summer 2011 (when one might wish all of time had frozen), complete with welcomes from its then-Chairperson and Director, and a seemingly complete archive of reports and resources, including my original 2008 salvo on housing rights in Cambodia (here in pdf).

I should note that I have heard more about the demise of COHRE since I blogged on it two years ago, but have been told these things in confidence, which I do not intend to breach. Whatever the circumstances that brought COHRE down, all the involved parties appear united by a desire to focus on the positive aspects of their experience, which is itself quite a legacy. That said, if the mysterious benefactors who brought COHRE back online want to come forward, they are welcome to do so here.

Demonize the messenger – UN Housing Rapporteur accused of witchcraft

by Rhodri C. Williams

So here is the scenario. A wealthy Western country is early out in 2001 in extending a standing invitation to UN human rights rapporteurs to visit anytime they like. In doing so, they are taking up a Quaker initiative premised on the idea that the first step toward respecting human rights is willingness not be defensive about one’s own record.

Twelve years later, the UN Rapporteur on the right to housing announces the first visit by her mandate to said country, at a time of economic recession. Her initial PR and a subsequent set of preliminary findings praise the host country’s tradition of housing assistance for the poor and provide a reasoned set of criticisms of recent measures to deregulate private rental markets and ensure more efficient use of public housing stocks.

The response? Pandemonium. The chairman of the main party in the governing coalition speeds a letter to the UN Secretary General claiming that the rapporteur arrived uninvited, ignored the relevant government ministers and issued politically biased findings, suggesting “that the UN withdraw her claims” until a “full investigation” is carried out.

A national tabloid accuses her of being a Marxist witch while a conservative columnist is pleased to merely dismiss her as an idiot and a “Brazil nut”. She, of course being the (Brazilian) UN rapporteur Raquel Rolnik, and they being the Right Honourable conservative commentariat of the United Kingdom.

So. How has it come to pass that the United Kingdom, with its Magna Carta and its mother of parliaments is unable to engage in a reasoned dialogue with a UN human rights official? To express mild concerns about her criticism, promise to study them and let them slide gently toward the circular file like everyone else? Or conversely, why draw unnecessary attention to the report by engaging in shrill denunciation of UN activism (not to mention sexist and arguably racist ad hominem attacks on its author)?

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World Bank urged to stand firm on land-related rights violations in Cambodia

by Rhodri C. Williams

As reliably as the annual arrival of the wet season, the protracted  struggle over who controls Cambodia’s land has entered into another one of its hot phases. On one side, local communities supported by a coalition of national and international NGOs continue to defend their rights to land and homes they have built their lives around. On the other side, the Cambodian authorities continue to almost ostentatiously prioritize the interests of international investors over those of their own constituencies. The latest salvo takes the form of an open letter to the World Bank signed by over 100 civil society organizations urging incoming President Jim Yong Kim to continue his predecessor Robert Zoellick’s firm stance on forced evictions.

As before, ground zero for the forced evictions debate in Cambodia remains the Boeung Kak Lake (BKL) neighborhood of the capital Phnom Penh. While the open letter points out recent killings outside of Phnom Penh (including an environment activist and a 14 year old girl in the course of an eviction), the incident triggering the current wave of activism has been the arrest of 15 mostly female BKL residents, 13 for having had the temerity to protest against being expelled from their homes and two more for having volunteered to testify on the others’ behalf.

The arrest and sentencing of the BKL 15 (most got over two years on trumped up charges) is the latest phase of a long-running controversy that first led the Cambodian government break off its long-running cooperation with the World Bank on land registration, and then saw the World Bank take a principled stand in favor of meaningful reform. The twists and turns of the BKL affair are lucidly presented in Natalie Bugalski and David Pred’s guest-post earlier this week. They have also been the topic of past postings on TN that documented:

  • The decision of the Cambodian government to walk away from the multi-million dollar Land Management and Administration Project (LMAP) when the World Bank suggested (under pressure from the late, lamented COHRE) that greater priority be given to urban tenure security, beginning with BKL;
  • The subsequent deliberations of the World Bank Inspection Panel on whether the Bank had violated its own policy on involuntary resettlement by being implicated in the BKL evictions;
  • The November 2010 decision by the Panel finding a breach of the Bank’s Policy and the subsequent deliberations by the Board of the Bank on how to proceed in Cambodia;
  • The Board’s March 2011 decision to acknowledge its past shortcomings and insist on compliance with the Policy in future engagement with land issues in Cambodia;
  • Mounting questions over how this firmer line would be implemented in light of lack of improvements on the ground;
  • The August 2011 revelation that the Bank had suspended new project funding in Cambodia pending a resolution of the BKL issue;
  • The subsequent concession of the Prime Minister in granting title to the remaining holdout families in BKL that had not yet been evicted; and
  • the Government’s return to form, with forced evictions continuing at the edges of the BKL neighborhood and elsewhere.

The concerns expressed in the current open letter relate to signs that the World Bank is considering withdrawing its freeze on funding new projects in Cambodia. In earlier statements, the Bank had asserted that it would not resume funding until “an agreement is reached with the residents of Boeung Kak Lake”. However, while the Government’s earlier grant of title to BKL holdouts represents a significant breakthrough, it does not apply to as many as 85% of the residents of the neighborhood forced out under extreme duress earlier. And as noted in the open letter, the entire BKL community has demonstrated exemplary solidarity, with current title beneficiaries continuing to hold out for an “agreement” that does not exclude their less fortunate former neighbors.

At a broader level, one might wonder whether even a full resolution of the now notorious BKL issue alone should be seen as sufficient, particularly in light of the Bank’s association with an earlier joint call by Cambodian development partners for a general moratorium on urban evictions. On the other hand, full satisfaction for BKL’s battered residents would have tremendous symbolic value. As demonstrated by NGO statements in support of the open letter, BKL has taken on regional, if not global significance as a concerted stand against arbitrary government land takings. Meanwhile, the Government’s paranoid reaction to attempts by the human rights group Licadho to speak with the BKL 15 at Prey Sar prison demonstrate that it is well aware of the symbolic power of this case:

…two guards, dressed in unmarked grey clothing distinct from regular guards at Prey Sar, ordered those who ventured near the fence closest to the Boeung Kak women to move away.

Licadho president Pung Chhiv Kek, who led a contingent of about 50 youths into Prey Sar for the event, spoke to prisoners up close through the fence, but when she began to move in the direction of the Boeung Kak prisoners, a guard told her to clear away.

“In my long experience of going to Cambodian prisons, it was the first time I was prevented to see prisoners,” she told the Post. “They did this because they had orders coming from the upper stratum of the regime, which regards Boeung Kak lake as a sensitive question.”

As noted previously in this blog, the World Bank does not enjoy exclusive or unlimited power to shape Cambodian policy, nor should it. However, recent events have demonstrated that the Cambodian government does consider the resources that the Bank provides worth an occasional policy shift. It would be a shame – and a mistake – for the Bank to needlessly cash in its chips before seeing the Government’s hand.

From shelter to housing: New NRC report on tenure security and displacement

by Rhodri C. Williams

The Norwegian Refugee Council (NRC) just released a substantial study I wrote for them on the right to security of tenure and how it relates to interim shelter needs and long-term durable solutions for both refugees and internally displaced persons (IDPs). It is a long read, but I would recommend it to those interested in these topics as my most comprehensive attempt to date to articulate the legal and policy dynamics of this important emerging area of humanitarian practice.

The background analysis in the study picks up on themes I developed earlier with regard to Liberia (also for the NRC), as well as Serbia (for the Brookings Institution) and Iraq (for the US Institute of Peace). These include the need for humanitarian actors to continue their engagement with both human rights and development discourses related to access to housing and security of tenure. The nexus with human rights emerges clearly from the moment of displacement, given the increasing trend (as reflected in the Sphere Standards) toward aligning humanitarian shelter provision with the human right to adequate housing. In accordance with commonly accepted understandings of this right, this means that even transitional shelter should meet basic standards of adequacy and be provided in a manner that ensures an appropriate level of tenure security to its occupants.

Meanwhile, the nexus with development standards relates to the insight that an increasing number of both refugees and IDPs find themselves in situations of protracted displacement. As a result (and as described in my earlier study on Serbia), measures to provide interim shelter solutions for displaced persons may quickly take on a de facto permanent character, and should often be planned with this eventuality in mind. This implies that pro-poor urban development standards (such as those developed by UN-HABITAT) should be applied wherever possible to allow the community-driven upgrading of IDP and refugee settlements. It also implies that development standards regarding involuntary resettlement should complement human rights standards in guaranteeing legal security of tenure for the displaced.

In the current NRC study, the case studies chosen related to Palestinian refugees in Lebanon as well as IDPs in Georgia. Application of the relevant standards on tenure security is difficult in both cases, but for entirely different reasons. In the case of Lebanon, refugees do not (unlike IDPs) enjoy a right to seek local integration as a durable solution. However, the particular political sensitivities in Lebanon have led to a situation in which efforts to prevent local integration have led to restrictions in areas such as access to housing that cannot easily be reconciled with the country’s international obligations.

In the case of Georgian IDPs, there has been a determined and ambitious effort to facilitate integration in a manner that does not foreclose the eventual possibility of property restitution and return. However, significant complications have arisen in part because this program has been aligned with a broader attempt to privatize state-owned property. This has led to some some difficulties in a program to allow IDPs to buy the shelter allotted to them in buildings subject to privatization as well as questions regarding what can be done for the large proportion of IDPs still sheltered in private accommodation.

It is important to recognize the initiative of the NRC, and particularly its Information, Counseling and Legal Assistance (ICLA) program, in driving these issues forward. The ICLA program has in many respects led the way in terms of seeking effective property remedies for the displaced in the field, and have now pivoted quickly to address new concerns related to tenure security where such remedies are not forthcoming. As always, I benefited a great deal from the insights and hospitality of my NRC colleagues while preparing this report, and it is my fond hope that some of them will guest-post on TN soon with both updates on the specific case-studies covered in the report and comments about their other ongoing initiatives in the area of housing, land and property rights.

Proposals to allow private ownership of First Nations’ land spur debate in Canada

by Anneke Smit and Gloria Huh

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada.  She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013).  Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.

In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people.  Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations.  Further, a steady stream of judicial decisions (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.

Not all is well however.  Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing.  Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.

Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples.  Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada.  The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.

This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position.  To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw).  While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted.  The proposed Act would change that.

The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement.  While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.

While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time.  University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands.  Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights.  They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country.  The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.

To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders.  A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat.  But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.

When do home and property part ways? New paper on the ECHR and the Cyprus property question

by Rhodri C. Williams

I’m very happy to announce the release of a new paper on the European Court of Human Rights and the Cyprus property issue (available here) that I wrote together with Ayla Gürel for the PRIO Cyprus Centre. The primary goal of the paper is to parse through the implications of the Court’s recent jurisprudence for the resolution of the property issue in the context of ongoing talks on the reunification of Cyprus. Our main conclusion is that the effect of these cases is to rule out some of the more extreme proposals from both sides, effectively tightening the legal parameters within which the negotiators nevertheless retain considerable discretion to arrive at a political compromise.

The analysis revolves around a series of judgments that subtly broke with the Court’s earlier caselaw on Cyprus and culminated in the March 2010 decision in Demopoulos v. Turkey. As I described in an earlier note on this decision for International Legal Materials, the Demopoulos Court rejected the Greek Cypriot position that a remedy for property violations resulting from the 1974 Turkish invasion of northern Cyprus would have to take the form of restitution except in cases where this was ‘materially impossible’. Instead, the Court approved a Turkish Cypriot property commission that was mandated to offer remedies involving compensation or exchange (rather than restitution) in a much broader range of circumstances than material impossibility.

While the implications of this decision for the broader discourse on ‘housing land and property’ (HLP) issues remains highly topical, we focus our analysis on how the Demopoulos line of decisions fits into the Court’s evolving caselaw on the application of the European Convention on Human Rights (ECHR) in ‘transitional’ settings such as Cyprus. One of the issues we look at, for instance, involves debates surrounding the application of the Court’s new ‘pilot judgment procedure’ in these cases. However, I think one of the most interesting aspects of the case – and one which seems to have drawn surprisingly little attention to date – is the extent to which the Demopoulos ruling demonstrates the power of Article 8 analysis (on the right to the home under the ECHR) in shaping Article 1 Protocol 1 outcomes (related to the right to property).

The mutually reinforcing nature of Article 8 and Article 1 Protocol 1 is hardly news, and the significance of this linkage in restitution settings has been commented on by a number of observers including Antoine Buyse, author of the ECHR Blog. What is striking in the Demopoulos case is that one of the implicit grounds for the Court’s ruling appears to be a determination that the protection of rights to the home under Article 8 of the ECHR have by and large shifted from Greek Cypriot property claimants (who remain legal owners but are increasingly unlikely to be found to have significant links to homes they left behind two generations ago) and to Turkish Cypriot occupants. While the Court does not directly state that occupants of claimed property are now protected under Article 8, such a finding is arguably implicit in the Court’s concern that blanket restitution could give rise to  ‘disproportionate new wrongs’ (para. 117):

The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, …. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. (para. 116)

In other words, it appears that the Court has accepted that long-term occupation of claimed property can give rise to protected rights to the home, and that the existence of these rights can legitimately limit the ‘possibility’ of restitution in favor of owners. If this proposition holds up, it may come to be seen as a significant precedent that the current debates surrounding post-conflict HLP rights will need to come to grips with. On the other hand, it will also be crucial to distinguish the Court’s findings based on a number of factors unique to the Cyprus context such as the protracted nature of displacement there and the failure of the parties to date to achieve a negotiated settlement.

Innovations in forced eviction series #3: China

by Rhodri C. Williams

In following housing rights issues, I have been increasingly struck by the frenetic pace of innovation demonstrated by local authorities worldwide in forcing people out of their homes. The first ‘aha’ moment came when I read about the use of sand pumps by workers draining a lake in central Phnom Penh to literally flood the homes of families in the adjoining neighborhood with mud. The next noteworthy development came when Israel – admittedly a country with some tradition in this regard – began notifying Bedouins in the Negev Desert that they would be charged for the periodic demolition of their homes.

However, China has set the bar at a new level and deserves full recognition for their initiative. As reported by the BBC, the Chinese authorities have responded to one village’s failure to comply with an eviction order (their village was flooded by a dam but they moved back to the shore of the resulting lake without permission) by refusing to issue official documents to the residents, effectively rendering them stateless:

“When [children] are born, when they grow up, when they to school, get married, find a job, there is no way to show they exist,” [one resident] says. “When they die we just bury them.”

In recognition of the tireless work of the anonymous bureaucrats who labor day and night to come up with such outside-the-box solutions, I have decided to begin a formal series in TN on innovations in forced evictions. Whenever I read of a new practice that demonstrates unusual initiative, I will ensure that it gets the exposure it deserves. Readers are encouraged to submit nominations anytime.