A/HRC/16/42
become particularly complicated, with the tension playing itself out between short-term
peace demands and compromises, and the longer-term needs of a sustainable reconciliation
and reconstruction process. Finding practical and locally appropriate ways to resolve the
dilemma is very important. Given the expansive content of the right to adequate housing,
protecting and realizing that right is never a clear-cut, linear process where an obvious
causal link can easily be established between action on the ground and ultimate impact.
Massive displacement, frequent destruction of records related to land and property, the
equally frequent absence of documentation to prove the prior occupation history of longterm informal users and occupants of land, the emergence of “rights in conflict” (such as
occupation versus restitution), inadequate legal frameworks governing land management,
the actions of powerful interest groups keen on capitalizing on the opportunity for
profitable investment; are all factors which would in principle call for caution and careful
analysis of strategic options. 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 therefore seem impossible to address.
21.
How should governments, bilateral and multilateral agencies, non-governmental
organizations (NGOs) and other support institutions respond to these complex situations
and difficult challenges? The Special Rapporteur has identified three key issues that she
regards as crucial entry points to incorporate the right to adequate housing in the
reconstruction efforts: security of tenure, participation and coordination, considering the
impact they have on other elements of the right to adequate housing which are usually
neglected or overlooked, including location, cultural adequacy and availability of services,
facilities and infrastructure.
B.
Tenure security
22.
Security of tenure is a fundamentally important dimension of the right to adequate
housing. It is included in the list of factors comprising adequacy of housing and offers
important guidelines to institutions responding to post-conflict and post-disaster situations.
According to general comment No. 4 “Tenure takes a variety of forms, including rental
(public and private) accommodation, cooperative housing, lease, owner-occupation,
emergency housing and informal settlements, including occupation of land or property.
Notwithstanding the type of tenure, all persons should possess a degree of security of tenure
which guarantees legal protection against forced eviction, harassment and other threats.
States parties should consequently take immediate measures aimed at conferring legal
security of tenure upon those persons and households currently lacking such protection, in
genuine consultation with affected persons and groups23 ”.
23.
This recognition of a multiplicity of legitimate tenure forms, together with the
obligation to offer protection to those holding them, is of great importance in developing
responses to housing destruction or the displacement of residents. Security of tenure is
essential for the realization of the right to adequate housing and has a great impact on
location as another fundamental element of adequacy. Paradoxically, the absence of such
security is often a pre-existing contributory cause of conflict and vulnerability to disaster.
In trying to address housing rights in post-disaster and post-conflict situations, it is
therefore important to investigate the tenure security challenges presented by those
situations. Post-crisis responses to housing destruction and/or displacement that fail to take
this into account are likely to be counterproductive, and could even themselves become
drivers of future conflicts, dispossession and exacerbation of vulnerabilities. On the other
23
8
General comment No. 4, para. 8(a).
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