The Right to Adequate HousingInternational law relating to forced evictionAngola is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR).14 Article 11 of the Covenant establishes the obligation to protect the right to adequate housing, which includes protection against forced eviction. A “forced eviction” for the purposes of international law 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.”15 Expropriation of land of private citizens even without their consent or forcible eviction of residents can be effected in compliance with international law, which recognizes a right for governments under “the most exceptional circumstances” to take such steps. However, each measure should be evaluated on a case-by-case basis with the clear public interest identified and with the appropriate processes in place, including compensation and alternative access to housing.16 Illegal “forced evictions” include not only evictions involving physical force or violence, but also “peaceful” evictions if taking the land is unjustifiable, or if the procedure fails to include adequate safeguards.17 Forced eviction is well established as a fundamental violation of international law and has been termed a gross violation of human rights.18 It represents a regressive measure in relation to a state’s obligations with respect to access to housing under article 11 of the ICESCR, because it involves the arbitrary destruction by the state or its agents of resources that individuals and families have invested in building their homes.19 Forced eviction also involves the violation of other rights protected under the International Covenant on Civil and Political Rights (ICCPR);in particular, the right not to be subjected to arbitrary or unlawful interference with one’s privacy and home, and the right to liberty and security of the person.20 In order for a compulsory eviction to comply with international standards, governments must ensure that feasible alternatives are explored and that individuals have a right to compensation for both real estate and personal property.21 They must also apply minimum procedural protections that include genuine consultation with those affected; adequate and reasonable notice of the date of eviction; timely information on the proposed eviction, including, where possible, the alternative purpose for which the land is to be used; proper identification of the staff carrying out the eviction; and the availability of legal remedies for those affected.22 Angola is also a party to the African [Banjul] Charter on Human and Peoples’ Rights.23 Article 14 of the Charter protects the right to property. The African Commission on Human and Peoples’ Rights has interpreted this, in conjunction with article 16 (the right to best attainable state of physical and mental health) and article 18 (the right to protection of the family), to read into the Charter a right to shelter or housing. In the case of The Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria, the African Commission noted:
The United Nations (UN) Special Rapporteur on adequate housing as a component of the right to an adequate standard of living has elaborated a set of human rights guidelines on development-based displacement. These guidelines build on the UN Comprehensive Human Rights Guidelines on Development-Based Displacement developed by experts under the auspices of the UN High Commissioner on Human Rights in June 1997.25These guidelines, presented by the Special Rapporteur to the UN Human Rights Council in 2006, offer several new prescriptions that clarify the obligations of states in respect to compliance with human rights standards when forcibly removing population due to large scale development projects. They reflect and detail the principles contained in General Comments 4 and 7 of the UN Committee on Economic, Social and Cultural Rights on the right to adequate housing, and reflect the experience of communities who have been subject to human rights violations as a result of forcible displacement. Although not yet formally adopted by states, the guidelines recommended by the Special Rapporteur constitute an important roadmap for the protection of their citizens against human rights violations arising from forced evictions. Angolan law on housing and property rightsAngolan law, detailed below, contains several provisions that protect individuals in cases where they are involuntarily evicted by the state from their land or housing.26 Such provisions essentially reflect the requirements for information, notice and compensation provided under the ICESCR. Under Angola’s land laws, the state can only expropriate land for specific public use.27 According to urban management laws and regulations, when the state expropriates land for public use it must declare the purposes for such use.28 In cases where the state grants land concessions for urban development projects, the government has a legal duty to widely publicize the project so that people who believe that their pre-established land rights will be damaged can submit complaints to legally protect those rights.29The development of any infrastructure that may have significant environmental or social impact is subject to an impact assessment that must include hearings with the population affected.30Individuals whose land is expropriated for public use purposes are entitled to just compensation.31 Public administration in Angola is bound by a general principle that requires provision of information to citizens and a general rule that the initiation of any administrative procedure must be communicated to the citizens whose rights and legally protected interests could be affected.32Any administrative act that denies, extinguishes, restricts, or in any way affects rights or legally protected interests or aggravates duties or sanctions must be justified by the administration in light of existing laws and policies.33 The administration must always notify individuals of decisions that: (a) are a reply to a petition submitted by such individuals to the administration; (b) impose duties or sanctions on individuals or cause them damage; or (c) create, extinguish, increase or restrict any rights or legally protected interests of individuals or affect the conditions of their exercise.34The state must notify those affected by such decisions within eight days (unless another deadline is specifically established by another law), directly or through formal written notice in a widely accessible location.35 The notification must include: (a) the entire text of the administrative act; (b) the identification of the administrative procedure, including its author and date; and (c) the competent body to consider appeals against administrative acts, as well as the deadline for such appeal.36 In addition, the Angolan government must guarantee that urban management plans respect previous rights or legal situations legitimately constituted.37 14 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, acceded by Angola January 10, 1992. According to article 11, “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, and to the continuous improvement of living conditions.” 15 UN Committee on Economic, Social and Cultural Rights, “The right to adequate housing (art.11.1): forced evictions,” General Comment No. 7, UN Doc. HRI/GEN/1/Rev.7 (1997), para. 3. 16 See further: Office of the High Commissioner for Human Rights, “Fact Sheet No.25, Forced Evictions and Human Rights,” May 1996, http://www.ohchr.org/english/about/publications/docs/fs25.htm (accessed March 1, 2007). 17 In General Comment 4, the UN Committee on Economic, Social and Cultural Rights states that forced evictions “are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances and in accordance with the relevant principles of international law.” UN Committee on Economic, Social and Cultural Rights, “The right to adequate housing,” General Comment No. 4, UN Doc. HRI/GEN/1/Rev.7 (1991) para. 18. 18 UN Committee on Economic, Social and Cultural Rights, General Comment 7, para. 2. 19 UN Committee on Economic, Social and Cultural Rights, General Comment 3, para. 9 notes: “[A]ny deliberately retrogressive measures…would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” UN Committee on Economic, Social and Cultural Rights, “The nature of States parties obligations (art. 2, par.1),” General Comment No. 3, UN Doc. HRI/GEN/1/Rev.7 (1990). 20 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded by Angola January 10, 1992, arts. 9 and 17. 21 UN Committee on Economic, Social and Cultural Rights, General Comment 7, para. 13. 22 UN Committee on Economic, Social and Cultural Rights, General Comment 7, para. 15. These procedural rights are detailed in the UN Committee on Economic, Social and Cultural Rights General Comments 4 and 7 (see annex II for the full text of General Comment 7). 23 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, acceded by Angola March 2, 1990. 24 African Commission on Human and Peoples’ Rights, Communication No. 155/96 (2001), para. 61. 25 The Practice of Forced Evictions: Comprehensive Human Rights Guidelines on Development-Based Displacement, adopted by the Expert Seminar on the Practice of Forced Evictions Geneva, 11-13 June 1997, http://www1.umn.edu/humanrts/instree/forcedevictions.htm (accessed February 20, 2007). 26 The adoption of specific legislation on forced evictions has been recommended by the UN Special Rapporteur on adequate housing as a component to the right to an adequate standard of living. However, in the absence of such legislation, land and urban management legislation, as well as general regulations on the activities of public administration can and should be used to protect evictees’ rights. 27 Lei da Terra, lei n. 9/04, November 9, 2004, art. 12(2). 28 Lei do Ordenamento do Territorio e Urbanismo (Lei do Ordenamento do Territorio), lei n. 3/04, June 25, 2004, art. 20; Regulamento Geral dos Planos Territoriais, Urbanisticos e Rurais (Regulamento dos Planos Urbanisticos), Decreto n. 2/06, January 23, 2006, art. 87. 29 Regulamento dos Planos Urbanisticos, art. 143(6). 30 Lei de Bases do Ambiente, Lei n. 5/98, June 19, 1998, arts. 15 and 16. 31 Lei da Terra, arts. 12(3) and 27(10). 32 Normas do Procedimento e da Actividade Administrativa (Normas do Procedimento), Decreto-Lei n. 16-A/95, de 15 de Dezembro de 1995 arts. 7, 34 and 30; Regulamento dos Planos Urbanisticos, art. 11. 33 Normas do Procedimento, art. 67. 34 Normas do Procedimento, art. 38. 35 Normas do Procedimento, arts. 41 and 42. 36 Normas do Procedimento, art. 40. 37 Lei do Ordenamento do Territorio, art. 24. |