A/HRC/22/46
protection? How should tenants‘ rights be balanced with the rights of property owners? 44
What are the limits within which tenants‘ rights or the rights of holders of other forms of
tenure can be ensured?
E.
Non-discrimination and security of tenure
62.
International human rights mechanisms have discussed the particular tenure situation
of some groups and individuals, such as Roma or women, but have offered little guidance
with respect to other groups. 45 For instance, commentary in relation to the situation of
internally displaced persons (IDPs) focuses only on a few issues (primarily housing or
property restitution) and countries,46 and would thus warrant further elaboration. Other
groups whose tenure needs require clarification are asylum seekers and migrants.
63.
While non-discrimination is relevant to all groups and individuals, and all grounds
of non-discrimination are potentially relevant to tenure security, the Special Rapporteur
focuses here on issues of non-discrimination on account of property status, location and
socioeconomic status, which are less often discussed in the human rights framework.
64.
The Committee on Economic, Social and Cultural Rights has stressed that
discrimination on the grounds of property status or place of residence is prohibited under
the International Covenant on Economic, Social and Cultural Rights. Property status
includes those holding real property (for example land ownership or tenure) and those who
lack it. The Committee further clarified that the exercise of Covenant rights, such as access
to water or protection from forced eviction, should not be conditional on, or determined by,
a person‘s current or former place of residence, or land tenure status, such as living in an
informal settlement.47 Furthermore, the Committee has noted that States parties must give
due priority to those social groups living in unfavourable conditions by giving them
particular consideration.48
65.
An examination of national legislation and case law reveals that different forms of
security of tenure provide varying degrees of security, and that the variation is often a
function of the property interests associated with each type of tenure as well as of
socioeconomic status. For instance, those in informal settlements have minimal protections
against eviction, while those with freehold tenure secured by title deeds are able to avail
themselves of a far higher degree of protection. Furthermore, as United States expropriation
case law demonstrates, even within an overall regime providing security of tenure, those
with less economic status tend to enjoy a lesser degree of security of tenure in practice.49
44
45
46
47
48
49
14
See, for example, Constitutional Court of South Africa, Maphango and others v. Aengus Lifestyle
Properties, case CCT 57/11, [2012] ZACC 2, decision adopted on 13 March 2012.
On Roma, see concluding observations cited in note 30. On women, see for example concluding
observations of the Committee on the Elimination of Discrimination against Women on Côte d‘Ivoire
(CEDAW/C/CIV/CO/1-3), para. 42; Nepal (CEDAW/C/NPL/CO/4-5), paras. 11, 15-16, 43-44;
Zimbabwe (CEDAW/C/ZMB/CO/5-6), paras. 35-38; and Ethiopia (CEDAW/C/ETH/CO/6-7), paras.
36-37, 40-41.
See, for example, concluding observations of United Nations treaty bodies on Bosnia and
Herzegovina (E/C.12/BIH/CO/1) and Croatia (CERD/C/HRV/CO/8 and CCPR/C/HRV/CO/2); as
well as A/HRC/16/43/Add.1. See also the principles on housing and property restitution for refugees
and displaced persons (E/CN.4/Sub.2/2005/17, annex).
General comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, paras.
25 and 34. See also general comment No. 15 (2003) on the right to water and general comment No. 4.
General comment No. 4, para. 11.
The Supreme Court of the United States found that expropriating low-cost owner-occupied housing to
make way for private redevelopment was in the public interest as that development would create jobs
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