COHRE Housing and ESC Rights Law Quarterly Vol5 No.1 2008

housing and esc rights law Centre on housing rights and evictions

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Vol. 5 - No. 1 March 2008

quarterly

With the Housing and ESC Rights Law Quarterly, the COHRE ESC Rights Litigation Programme aims to present advocates and other interested persons with information on national and international legal developments related to housing and ESC rights.

the battle for The Land and Housing Rights of the Negev Bedouin

By Ahmad Amara1 Introduction Since 1948, the State of Israel has sought to concentrate the 155,800 Bedouin living in the Negev desert in southern Israel into a limited number of urban settlements, while refusing to recognise the Bedouin’s ownership of other lands occupied by them.2 This article provides an account of the land and housing challenges faced by the Bedouin, as well as their efforts to resist this forced urbanisation.

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The Bedouin struggle has resulted in a number of significant court decisions on social and economic rights. These decisions have exemplified the role that can be played by the law and by the courts in either weakening or empowering minorities. They have also demonstrated the incapacity of those institutions to address specific social crises in the face of prevailing politics

in some instances. Together with civil society organisations, the Bedouin have been advocating their cause through legal and non-legal avenues. While both the State and the Bedouin have achieved significant successes in their respective campaigns, the land and housing crisis being experienced by the Bedouin remains ongoing and in need of a speedy

» and just solution.

Global Advocacy Fellow at the International Human Rights Clinic at Harvard Law School. The piece is based on research carried out by the International Human Rights Clinic at Harvard University. The views reflected in the article are solely those of the author. I am grateful to Nate Ela and Sandra Ashhab for their constructive readings of earlier drafts. I am especially thankful to the Harvard Law students who took, and are still taking, part in the project.

Correspondence can be addressed to Ahmad Amara at Email: aamara@law.harvard.edu Source for figures on Bedouin population size: The Central Bureau of Statistics (Israel): http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=200711171.

1 • The battle for the land and housing rights of the Negev Bedouin

10 • Challenging violations of the right to water before the European court of human rights

2 • Editorial

7 • Restitution for internally displaced persons: a step towards peace and recovery in Colombia

11 • Round-up of recent decisions in ESC rights cases

12 • Case to watch

This publication has been made possible with the support of the United Nations Housing Rights Programme, www.unhabitat.org/unhrp The views expressed in this publication are not necessarily shared by the UN or by UN-HABITAT ISSN 1812-240 X

Editorial

This edition of the Quarterly opens with an article by Ahmad Amard, which details the struggle of the Negev Bedouin to have their land and housing rights recognised, and given effect to, by the Israeli government.The author highlights the complex relationship between law and politics and the role that has been played by the courts in both advancing and undermining the Bedouin’s cause. The next piece, by Daniel Manrique, focuses on the right to restitution of internally displaced persons. The author discusses the way in which the Colombian Constitutional Court has fleshed out and contributed to the realisation of that right in the context of the ongoing conflict in Colombia. The following case-note

by Constantin Cojocariu analyses a decision of the European Court of Human Rights, which indirectly addresses the right to water. This edition’s round-up of recent decisions in ESC rights cases contains a decision of the Advocate General of the European Court of Justice addressing the issue of discrimination on the basis of an individual’s association with a disabled person.

Finally, there is information on a ‘case to watch’ involving the health rights of Roma, which was recently declared admissible by the European Committee of Social Rights.

We are thankful to the UN Housing Rights Programme, a joint initiative of UN‑HABITAT and the UN Office of the High Commissioner for Human Rights, for providing the necessary funding to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure the widest possible distribution.

For additional information on the justiciability of ESC rights, see www.cohre.org/litigation and the Case Law Database at www.escr-net.org.

We welcome any comments, submissions of case notes and articles, as well as information on new cases and relevant events and publications. Please feel free to contact us at: quarterly@cohre.org

» Historical background In the wake of the 1948 conflict in Palestine, the Negev desert fell under the control of the newly established state of Israel. Over 50,000 Bedouin in the Negev fled or were expelled into neighbouring countries, with only about 11,000 remaining in Israel.3 All Bedouin in the Western and Southern Negev were transferred to the Siyag,4 an enclosed area in the Northern Negev which was partially inhabited by some Bedouin tribes. The newly relocated Bedouin were provided with neither housing nor compensation. Most settled on the lands upon which they had been placed by the State authorities. The Siyag is estimated to be 1,000 square kilometers in size - the equivalent of just 10% of the area originally held by the Bedouin.5 Forced urbanisation/concentration: After the transfer of the Bedouin to the Siyag, a second phase of relocations was initiated. The main policy of the State was directed towards moving the Bedouin into a small number of urban settlements.6 Thus, from the late 1960s until the early 1990s, seven townships for the Bedouin were established. Today, they are populated by about 83,000 Bedouin. The remaining Bedouin, who number about 80,000, now live in 45 different villages. These so-called ‘Unrecognised Villages’ each have a population of between 200 and 4,000.

The seven townships are located within the eight poorest localities in Israel,7 while the unrecognised villages lack basic social and economic services, including running water, electricity, and educational and health institutions.

The Israeli government has justified its policy as a modernisation process: if the Bedouin are settled in specific localities, rather than being scattered across a large area, the state can provide them with basic services. Yet, despite the hardship and the poor living conditions that the Bedouin face in their unrecognised villages, they have rejected the government’s offer to move into ‘modernised’ townships.

Indeed, in some cases, Bedouin who moved to the townships have migrated back into the unrecognised villages.8 Since 2000, a slight change in the government’s resettlement policy has been perceptible. In that year, the government decided to recognise six Bedouin villages, and to consider three additional villages for future recognition.9 The ‘recognition’ of a village starts with a process of planning and zoning of the village. This results in the ‘legalisation’ of the village, whereupon residents can get house permits and, in the longer term, are provided with infrastructure and other services. This new policy has not succeeded for several reasons, the principal one being that, rather than recognising the

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4 5 6 7 8

The number of Bedouin refugees or Bedouin who remained in Israel varies.

On this matter see, Shlomo Swirski and Yael Hasson, Invisible Citizens Israel Government Policy Toward the Negev Bedouin (February 2006) (hereinafter: ‘ADVA Report’) at http://www.adva.org/UserFiles/File/NegevEnglishFull.pdf.

In Arabic, Siyag means ‘fence’.

Issacher Rosen-Zvi, Taking Space Seriously, Law, Space and Society in Contemporary Israel, Ashgate Publishing Company 2004, p.45.

In 1962, an inter-ministerial commission was appointed by the government to advise on this policy and on possible locations for new settlements for the Bedouin. See ibid, Rozen-Zvi, p.46.

ADVA Report, supra n.3, p, 52, 87.

Ghazi Falah, ‘Israeli State Policy toward Bedouin Sedentarisation in the Negev’, Journal of Palestine Studies 18(2) 71(1989), p.88.

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villages on the land that they currently occupy, the government has drawn new and smaller borders for the villages. The Bedouin who live outside those new borders refuse to move within them.

Moreover, as will be discussed below, many of the lands within the new borders are the subject of ownership claims filed by Bedouin, and it is difficult either to convince claimants to relinquish their claims or to convince other Bedouin to live on claimed lands.

The role of law: Bedouin land The creation of the Bedouin’s land and housing problem has been largely achieved by means of the employment of different legal mechanisms by the State. This section outlines the main legal tools that have played, and still play, a major role in the case.10 At the time of its creation, Israel incorporated all the laws that were then in force in Mandate Palestine, which included a mixture of Ottoman and British Mandate legislation. One of these laws, the Ottoman Land Code of 1858, sorted land into several categories. The most important land category in terms of this issue is Mawat land (a term which literally means ‘dead land’). The Ottoman Code defined as Mawat land that was barren, was not possessed by anyone, and that was located at such a distance from a settlement that a loud voice originating in the settlement could not be heard on the land. Legislation

under the British Mandate later defined this distance as a mile and a half from any settlement.

Mandate law also amended Article 103 of the Ottoman Code, making it no longer possible for a person who had taken possession of and cultivated Mawat land to acquire valid title. Previously, it was possible to acquire title over such land even if it had been cultivated without the permission of the authorities. In addition, in 1921, the British Mandate enacted the Land Ordinance [Mawat], which required anyone claiming ownership over Mawat land to register it within two months from the date that the Ordinance came into force.

Otherwise, such Mawat land was regarded as being the property of the State.

Due to customs, laws and traditions governing land use and ownership, as well as for tax reasons, the Bedouin did not register most of the lands they held under either Ottoman rule or the British Mandate. Instead, tribes would divide up territory and agree, usually orally,11 to territorial borders.

During the 1950s, most land in the Negev, including 55% of the land within the Siyag, was declared to be State land, on the basis that such land was Mawat or the property of absentees (the Bedouin refugees in the neighbouring Arab countries).12 Bedouin who later claimed ownership over some of those lands or attempted to register other land under their name

were denied ownership, generally on the basis of the rationale that the land is Mawat and belongs to the State. Thus, the Bedouin were viewed as trespassers on the lands that they lived on.

The role oflaw: Bedouin housing The flip side of the coin is the issue of the conditions and legality – or, to be more accurate, the illegality – of Bedouin housing.

In this context, the key piece of legislation is the 1965 Planning and Construction Law. Under this law, every house requires a permit and the zoning plans that apply to the land on which the house is, or will be, constructed must be complied with. When this law was enacted, it ignored the existence of the Bedouin villages in the Negev, which were not included as legal settlements in any contemporary or subsequent zoning plans. The zoning plans that applied to the villages did not allow for construction. The plans classified the lands as agricultural, military areas or natural reservations rather than as residential. Accordingly, all Bedouin structures existing in unrecognised villages in 1965, and all those constructed since, are considered ‘illegal constructions’ subject to demolition. According to a 1986 state report, there were 5,944 ‘illegal’ structures.13 By 2007, the Interior Ministry reported that approximately 42,000

such buildings existed.14

»

9 Government Resolution No. 2562 (47/Arab) (30 Nov. 2000) (in Hebrew) 10 For a comprehensive discussion on land dispossession see A. Kedar, ‘The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967’, 33 N.Y.U. J. Int’l L.& Pol .923 (2000-2001) and R. Shamir, ‘Suspended in Space: Bedouins under the Law of Israel’, Law & Society Review, 30(2) 231 (1996).

11 Some of the Bedouin in the village also hold documents that show they purchased the land from a different tribe or have proof that they were paying taxes to the Ottoman and the British authorities.

12 Rozen-Zvi, supra n.5, p.45.

13 Ghazi Falah, supra n.78 p.72.

14 M. Grinberg & Y. Stern, ‘State demolishes 17 houses in unrecognised Bedouin village in Negev’, Haaretz (6 Dec. 2006):

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» In addition to the threat posed to the housing and land rights of the Bedouin by the ongoing risk of demolition and those demolitions that actually take place, the physical state of these structures and their surroundings is striking. Home to large families, these buildings are generally wooden huts, tents or tin shacks, rather than houses built of stone (as is the norm for non-Bedouin in the Negev). They fail to provide their inhabitants with adequate living conditions, especially during the winter season.

The legal struggle We play the legal game. We are not equal and we are not at the same level. I know I will lose the game but I am playing. We know the results from the beginning.15 The Bedouin find themselves between the hammer and the anvil.

The Israeli state has left them with only two options: either move into the permanent townships or continue living in the unrecognised villages under the constant threat of eviction and without access to basic services such as drinking water and sanitation. The state has adopted a carrot-and-stick policy to relocate the Bedouin. On the one hand, Bedouin who agree to move to the townships are offered financial aid and the opportunity to lease a free plot of land by the authorities. On the other hand, the state employs various methods of ‘law enforcement’ against those Bedouin who resist relocation to the townships. Such methods include house demolitions, evictions, fines, the destruction of crops by

spraying herbicide, the uprooting of tree saplings, and the confiscation of cattle.16 As a marginalised minority lacking in political and social power, the Bedouin have found the courts to be their last refuge. Their legal struggle has progressed in two phases, the first of which ran until the late 1980s, the second of which began in the early 1990s and continues today.

In the first phase, the Bedouin, individually and through privately hired lawyers, challenged the legal provisions on land ownership and claimed ownership over the land they held. The landmark decision in this regard is the Al Hawashlih case,17 in which the Supreme Court affirmed the State’s position regarding Mawat land and held that the Mandate legislation from 1921: provided a final opportunity to gain ownership rights on Mawat land… whoever missed the time, cannot regain the right to secure Mawat land through registration, even if he revived [by means of cultivation] the land before 1921.18 Although the Ottoman and the Mandate definition of Mawat does not logically fit into twentieth-century conceptions of property, the court nevertheless discussed and refined that definition. The Court held that the lands under consideration exist at a distance greater than 1.5 miles from the nearest settlement (a tent encampment is not considered a settlement for the purposes of that definition).

15 16 17

This ruling means that since the city of Beer Sheba was in 1921 the only settlement in the Negev, all remaining non-registered land in the Negev is considered de facto to be Mawat. All hope of the Bedouin population that petitions for land ownership might resolve related issues, such as house demolitions, thus vanished.

The early 1990s marked a turning point in the Bedouin legal strategy. After realising that the land issue would not be solved in the courtroom, Bedouin turned to filing petitions on other issues with the Supreme Court, both collectively (for instance, by cases being brought by the local committee of a village or on behalf of several families) and through litigation brought by public interest lawyers. By this time, human rights organisations and civil society had strengthened considerably in Israel, and the new petitions incorporated human rights arguments addressing specific aspects of the Bedouin’s daily lives and difficulties. The right to education and the right to health were central to these petitions.19 No matter what the legal status of their villages and land disputes, the petitioners claimed that they were citizens who were entitled to basic services. These arguments yielded substantial successes, and several clinics, schools and pre-school institutions were established in the unrecognised villages.20 In addition, in April 2007, the state’s practice of spraying Bedouin crops with herbicide was banned.21 Although the struggle has not achieved all of the results sought,

http://www.haaretz.com/hasen/spages/797752.html.

Interview with a local Bedouin at one of the unrecognised villages carried out by the author in 22 Oct. 2007.

T. Abu-Ras, ‘Land Disputes in Israel: The Case of the Bedouin of the Naqab’, Adalah’s Newsletter, Vol.24, April 2006.

The case began in the district court in 1974 and ended with a Supreme Court decision in 1984. Civil Appeal 218/74, Salim AlHawashlih v. State of Israel, 38(3)P.D.141.

18 Ibid. at 147. See also Shamir, supra n.10, p.243.

19 The right to education and the right to health form part of national legislation (the 1949 Compulsory Education Law and the 1994 National Health Insurance Law, respectively).

20 See, e.g., Adalah, et. al. v. Ministry of Health, et. Al, High Court of Justice (HCJ) Case 7115/97, where the Ministry of Health made a commitment to construct six different clinics.

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the situation of the Bedouin population living outside the townships has improved.

While the right to housing served as a kind of invisible umbrella to all of the petitions concerning basic services, it played a more central role in briefs before the District Court, which challenged house demolition orders. In the demolition cases, courts preferred to avoid legal arguments concerning the right to adequate housing and its status within the Israeli legal system. (Under Israeli law, the right to housing is basically enshrined in case law, rather than in legislation)22 Instead, they opted to base their decision on provisions of the 1965 Law of Planning and Construction. The terms of this Law leave no room for legal argument as the legislation states that houses constructed without permission should be demolished unless a permit might be issued within a reasonable time. Whether or not a permit will be issued is dependent upon the householder applying for such a permit and the state granting one. Permit applications have to be based on zoning plans that allow for the construction of houses, however. With regard to unrecognised villages, zoning plans do not allow for construction. Therefore, occupants of such villages will not even have the standing to apply for such a permit. In most cases, the courts approved the ordered demolitions. In those cases where courts issued temporary injunctions against demolitions, their rulings were generally based on particular factual circumstances.

For instance, in situations where

villages were in the process of being formally recognised or of being included in new zoning plans. In some cases, courts tried to avoid ordering mass demolitions and encouraged the parties to try to reach a settlement.

To cope with the building permits quandary and to better protect housing rights, Bedouin and their counsel directed petitions against the lack of provision for the Bedouin villages under existing zoning plans. They also brought petitions challenging the zoning plans under preparation, asking to be included as legal settlements within those plans. If villages are defined as legal settlements, then the land upon which they are based is defined as residential land allowing for construction of housing units. Rather than making the right to housing the core argument of the petitions, Bedouin and their counsel focused on the right to equality. While state plans provide for various settlement options (urban, rural, communal and suburban) for the Jewish Israeli community, the situation of the Bedouin is ignored, and they are excluded from such plans. The leading case in this context is the Abu Hammad decision,23 in which the petitioner attacked the Southern District Master Plan for its failure to include the villages.

In Abu Hammad, the petitioners requested that the villages be included as rural settlements and, in 2001, the planning authorities made a commitment before the Supreme Court to find a proper solution for the Bedouin within the Beer Sheba Metropolitan Zoning Plan, which was then under prepa-

ration. However, when the Beer Sheba Plan was published in 2007, it did not solve the Bedouin settlement issue. More than 13 objections to the plan were filed with the planning authorities on behalf of the villages. It is not yet clear what the outcome of these objections will be.

Law vs. Politics We know and they know our struggle is racial and political, not legal.24 The Bedouin legal struggle is rife with racial and political overtones.

Many State officials have treated the Bedouin as a security threat and as an obstacle to a project that would ‘Judaise’ the Negev through the establishment of more Jewish settlements and the attraction of more Jewish Israelis to the region.25 When the Bedouin land question was not resolved through the law, the government moved to create other channels for resolution by establishing various bodies to study the case and recommend solutions. The first significant attempt in this regard was the Albeck Committee on Bedouin land settlement, established in 1975.26 In 1969, the government had initiated a land settlement process, asking Bedouin who claimed ownership of lands to file claims with the Ministry of Justice. More than 3,000 claims were filed during the 1970s, claiming ownership over 991,000 dunams of land.27 Today it is estimated that more than 665,000 unsettled dunams are still claimed by the Bedouin.28

Âť

21 HCJ 2887/04, Abu Mdieghem et al. v. Israel Land Administration et al.

22 Some arguments hold that the right to adequate housing is part of the right to live in dignity which is enshrined within the 1992 Basic Law: Human Dignity and Liberty. For a copy of this law, see http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm.

23 HCJ 1991/00, the petition originated in an objection filed against the plan back in 1994.

24 Interview with a local Bedouin in the unrecognised villages carried out by the author in October 2007.

25 Government Resolution No.881 [Arab/15] of 25 Sep. 2003. See also ADVA Report, supra n.3, p.15.

26 For more, see ADVA Report, supra n.3, pp.16-19.

27 Four dunams equal one acre.

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» In its report, the Albeck Committee stated that the land in the Siyag is Mawat land and that, therefore, Bedouin cannot claim ownership, even where such ownership is based on protracted possession. However, it recommended that the government go “beyond the letter of the law”, and, as a humane action, grant compensation to the Bedouin “in return for their relinquishing” the lands they claim and moving to the townships.29 With minor adjustments, this policy line was to dominate in the years to come.

The latest government initiative is the creation of an Authority and Public Committee on Resolving the Bedouin Settlement in the Negev, known as the ‘Goldberg Committee’.30 This step was advanced by former Minister of Construction and Housing Meir Sheetrit, who wished to centralise the land and housing issues of the Bedouin population under one body (the Authority), and to develop public confidence through the establishment of a public committee. Mr. Sheetrit recognised that the land dispute is the key to any solution.31 The Goldberg Committee started operating in January 2008. Its mandate calls for it to conclude its work within six months and then submit recommendations.

The new eight-member Committee differs from previous ones by including five public representatives, two of whom are Bedouin, and three of whom represent government. Additionally, there has been a call for public submissions to the Committee. However,

an analysis of the Committee’s mandate suggests that there is no reason to believe that there will be any substantial alteration to State resettlement policy beyond an adjustment to the rate of compensation or the allocation of alternative land. Under Article 3 of Government Resolution 2491, the Committee is to “submit its recommendations on formulating a large plan, comprehensive and feasible that will set forth the principles to arranging the Bedouin settlement… including compensation rate, settlement for allocating alternative land, [and] law enforcement” (translated by the author). The implication of relocation is clearly manifested by the fact that Article 3 does not mention the possibility of recognising some villagers’ claims to their lands.

Conclusion Deeply embedded in historical context and complex contemporary political and legal structures, the Bedouin issue is currently being addressed by both the political and legal arms of government.

This is a result of the Bedouin and their advocates both lobbying the Knesset (Israeli Parliament) and bringing legal actions before different courts. At a time that the ‘problem’ is growing and the Bedouin population is increasing rapidly - it is likely to surpass 300,000 in 202032 - the government is seeking to resolve a situation that it has neglected for decades. Despite the potential for law to arrange social relations and achieve social justice, politics has prevailed in this case. Courts are well aware that the law is not neutral and that it is not as easy

28 29 30 31

to justify the conditions experienced by the Bedouin today as it may have been in the 1970s. In many cases, the human rightsbased arguments put forward by the petitioners have strongly challenged the court’s interpretation of existing laws. This has been particularly true with regard to rights claims alleging discrimination against the Bedouin. The words of Justice Arbel in the Abu Mdieghem case, which concerned crop destruction, capture the prevailing mood: It is not within our jurisdiction to provide or even to propose a solution… however, I want to use this opportunity and call for a comprehensive study of the topic, and to a speedy advancement of an inclusive solution… this call is not only to the authorities but also to the Bedouin population, that also bears responsibility for its situation… only through dialogue, cooperation, tolerance… and willingness to compromise- from both sides- we can bring a difference.33 The State has recognised the difficult situation confronting the courts and, at the same time, has realised that past policies have not yielded the desired results.

Thus, it has been compelled to take the initiative in terms of formulating a solution. Both sides of this struggle are able to claim political and legal failures and successes. For the moment, however, the bottom line remains that thousands of people continue to live in very harsh conditions and under the constant threat of displacement.

State Comptroller Report, (2002), p.115.

Cited in ADVA Report, supra n.3, p.17.

Government Resolution No.1999 (15 July 2007), and Government Resolution No. 2491 (28 Oct. 2007) (in Hebrew).

Interview with Minister Sheetrit conducted by the author in January 2008. This position is also accepted by the Regional Council for the Unrecognised Villages.

32 Press release, the Ministry of Construction and Housing (31Dec. 2007) (in Hebrew).

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RESTITUTION FOR INTERNALLY DISPLACED PERSONS: A STEP TOWARDS PEACE AND RECOVERY IN COLOMBIA

By Daniel Manrique34

According to a recent ruling of Colombia’s Constitutional Court, displaced persons in Colombia have a fundamental right to housing, land and property restitution. The Court held that the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (aka the ‘Pinheiro Principles’), and the United Nations Guiding Principles on Internal Displacement, constitute part of Colombia’s national law and must be upheld by national authorities.

There are approximately four million internally displaced persons in Colombia today. Far from being an unintended consequence of armed conflict, forced displacement in Colombia is recognised as being the result of a premeditated strategy. All factions participating in the conflict – guerrillas, paramilitaries and government – perpetrate forced displacement.

And, too often, this displacement directly benefits Colombia’s economic elites. Properly viewed, it is clear that forced displacement in Colombia is used to gain social, political, economic and territorial control.

The illicit appropriation of land, and its subsequent concentration in the hands of a few, is a phenomenon which demonstrates the insidious nature of the displacement that is taking place in Colombia.

While in 1984, 0.3-0.4% of rural landowners with more than 500

hectares owned 32.5% of the land, in 1993, they possessed 44.6% of the land. By 2001, these landowners had come to own almost twothirds, or 61.2%, of Colombia’s fertile land. According to the World Bank’s Gini coefficient, which measures land concentration, Colombia ranks at 0.85,35 a ranking that indicates gross inequities and social exclusion.

Drug trafficking has also contributed considerably to the perpetuation of this problem. Since the 1980s, drug trafficking cartels have acquired large swathes of Colombia’s best lands. They launder money and promote illicit crops, and they also use violence and intimidation to ensure the abandonment of lands by peasants. Illegitimate and illicit ownership of land has become an intractable reality. In addition, since the 1990s, many waves of forced displacement have been spurred by the policies and projects of large national and multinational companies. Too often, these policies and projects are spurred by neo-liberal policies and commercial freedom.

Corporate interests have pushed a neo-liberal agenda to advance ownership of one of the main productive assets in the country. Land (and the control of land) is seen as necessary to ensure the profitability and success of such investment mega-projects (for example in the areas of agriculture, industry, mining, ports, tourism, etc.).

It is this underlying desire for land that constitutes a leading cause of the forced displacement, which a considerable part of the country experiences. It is a concrete denial of the principle that all humans are born equal and with dignity.

As a result of the current land concentration in Colombia, less than 1% of the richest landowners possess fully 70% of the best lands of the nation. In contrast, 70% of poor landowners own only 5% of the agricultural area.

At the same time, poverty in the countryside has increased, as has homelessness. Poverty jumped from 66% to 69% from 2003 to 2004, and homelessness jumped from 24.9% to 28.3% during the same period.

In this context, the struggle in Colombia for the restitution of housing, land and property to displaced persons is of special relevance. On the one hand, the restitution of land plays a determining role in guaranteeing the voluntary return, in safety and dignity, of displaced persons.

On the other hand, taking into account the right to restitution, an approach of restorative justice has been adopted in public policy, which moves beyond a strict humanitarian approach towards achieving integral reparations for victims. Moreover, the purpose of restoring land directly confronts the economic interests which have caused forced displacement.

»

33 HCJ 2887/04, supra n. 21, para.49.

34 Research Officer, Americas Program, Centre on Housing Rights & Evictions.

35 “This is still very high by international standards (compared, to, say Korea with 0.35, or Japan with 0.38)”. (World Bank, Colombia Land Policy in Transition, Report No. 27942-CO, (29 Jan. 2004), at p. 2). This index is used to show the degree of concentration of rural property, linking the cumulative percentage of owners with the percentage of land they own. When the index tends towards being

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» The question of the restoration of land is integral to the broader objective of achieving an enduring peace in the country. The focus on restorative justice is vital to creating a real remedy for the conflict, and it requires the design of durable solutions to displacement.

Recently, the Constitutional Court of Colombia set a valuable precedent by applying the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) in a case before it. In Decision T-821 of 2007, (October 7) M.P. Catalina Botero, 36 the Constitutional Court protected the fundamental rights of a peasant woman who, despite leaving behind her farm after her father’s murder and the ‘disappearance’ of her husband by a paramilitary group, had not been recognised as a displaced person. Nor had she received humanitarian protection or the assistance from public authorities to which recognised IDPs are entitled. The Presidential Agency for Social Action and International Cooperation had refused to register the woman as a person displaced by violence.37 According to the Agency, the woman had not clearly communicated her situation to that body and there had been no reports of violence or civil unrest in the region from which she was fleeing.

Therefore, in the Agency’s view, she had failed to meet its criteria.

There was, however, sufficient

information from the national government indicating that the rural area in which the woman lived was the scene of armed clashes involving the security forces, guerrillas and paramilitary groups from the late 60s up until the present day. In addition, the Constitutional Court had stated in numerous rulings that displacement is a situation that is determined by the facts of someone having to flee violence or instability and move within the country’s borders: displacement is not determined simply by whether one is formally registered as a displaced person with the government.38 In defining the State’s obligations to protect the rights of truth, justice, and reparations,39 the Court ruled that the victims of forced displacement have a fundamental right to restitution. The Court held that the State must preserve the right of displaced persons to their property and is obliged to re-establish such persons’ use, enjoyment and free disposition of it.

In particular, the decision noted that “the right to the restitution of the property of which the people have been plundered, is also a fundamental right”.40 The Court went on to stipulate that: “Article 17 of the Protocol Additional to the Geneva Conventions, the UN Guiding Principles on Internal Displacement (21, 28, and 29), and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, constitute

part of the constitutional framework, as they represent developments adopted by the international doctrine on the fundamental right to integral reparation for harm caused.”41 This means that these international norms carry the weight of national law in Colombia and that national authorities are accountable for failures to give effect to them.

To ensure the enjoyment of the petitioner’s fundamental rights, and those of her children, the Court ruled that her family properties must be protected in accordance with relevant national legislation. The Court also ordered the competent authorities to study the feasibility of establishing a special registry for displaced person’s properties, which could be used to identify victims who have the right to restitution and/or to compensation for damage suffered.

In its decision, the Constitutional Court reiterated that the right to restitution is an autonomous right and that it operates independently of whether a displaced person returns to their land or relocates. By guaranteeing the right of the displaced population to recover their properties despite their not returning to them, the right to restitution helps to effectively deter future instances of displacement by ensuring that perpetrators of displacement do not acquire access to the land.

However, if restitution is not factually possible, the Court held

equal to 1, the structure of rural property is heavily concentrated; the index tends towards 0 if the concentration is lower.

36 The judgments of the Constitutional Court of Colombia can be found at: http://190.24.134.68/relatoria/default.html, by clicking the link ‘providencias’ (http://190.24.134.68/relatoria/rprogramas/Providencias.htm).

37 The Presidential Agency for Social Action and International Cooperation is the government entity charged with responding to the needs of the displaced population through the provision of humanitarian aid, in order to stabilise the socio-economic conditions of displaced families 38 The following rulings by the Constitutional Court of Colombia are relevant here: T-227 de 1997 (Mayo 5) M.P. Alejandro Martínez Caballero; T-268 de 2003 (Marzo 27) M.P. Marco Gerardo Monroy Cabra; T-740 de 2004 (Agosto 6) M.P. Jaime Córdoba Triviño ; T-1094 de 2004 (Noviembre 4) M.P. Manuel José Cepeda; T-175 de 2005 (Febrero 28) M.P. Jaime Araújo Rentería.

39 In several of its judgments, the Constitutional Court of Colombia has developed the rights to truth, justice and reparation, which apply to victims of violence, especially of forced displacement. In addition to the judgment above, see e.g., the following judgments of the Constitutional Court: T-589 de 2005 (Junio 7) M.P. Rodrigo Escobar Gil; T-728 de 2004 (Agosto 4) M.P. Álvaro Tafur Galvis; T-268 de 2003 (Marzo 27) M.P. Marco Gerardo Monroy Cabra; T-327 de 2001 (Marzo 26) M.P. Marco Gerardo Monroy Cabra.

40 Decision T-821 of 2007, p.43.

Housing and ESC Rights Law Quarterly

that “victims have a right to receive another property to replace the one they abandoned or lost.”42 Nonetheless, as is recognised under the Pinheiro Principles, the Government of Colombia must give preference to the right to restitution as a remedy to displacement. This is because of restitution’s status as a key element of restorative justice.The remedy of compensation is only to be used when the remedy of restitution is not factually possible or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.

In the Colombian situation, practical difficulties persist which prevent or delay the restitution of land to displaced families. Many Colombians do not have formal legal title to the lands that they have lived on. Rather, they own them through possession, occupation or tenancy. Generally, such rights to land are difficult to prove by those who have suffered loss due to the linkage of such rights with actual control over the land, which is lost once displacement occurs. In addition, the registry system (which contains legal information on the property) frequently does not coincide with the cadastre.43 The latter system does not cover all the land in rural areas. Furthermore, the information that it does

41 42 43 44

contain may not be up-to-date.

This depends on the diligence of the towns that directly control the cadastral processes. Indeed, the possibility that illegal land confiscations have been legitimised or regularised through the cadastral register is a serious problem, because such records can be manipulated by those involved in the conflict.

In addition, many lands and homes abandoned after displacement owe years of back property and land taxes, or bills for public services. Displaced persons are threatened with confiscation of their returned properties in order to guarantee payment. Similarly, many displaced families had acquired loans which they stopped paying once they fled, leaving their homes mortgaged with little chance of recovery. In other cases, houses have been subject to liquidation of inheritance, because their owners died during or subsequent to displacement. Many displaced persons were forced to sell their properties at whatever the price. Luckily, such transactions can be viewed as forced or coerced sales and the vendors still retain their legal right to restitution. Other problems also exist. Women, whose husbands were killed on the day of displacement, are frequently unaware of the geographic or economic details of their lands. More generally, displaced persons do not possess the resources needed to pay the costs of their land titles. The UN Prin-

ciples on Housing and Property Restitution provide administrative, technical, and judicial guidance to the Colombian legislature as they work to address these types of practical difficulties.

Finally, restorative justice entails a special, strategic dimension, which is necessary in order to fully realise to the right to restitution. In fact, the principle of restorative justice has been given effect to in national legislation in Colombia, both in Law 387 of 1997 and the National Plan of Attention to the Displaced Population (Decree 250 of 2005).44 Nonetheless, the right to restitution must be of concrete applicability, so as to ensure that public policy can be distinguished from humanitarian practice. In this way, the right to restitution may translate into an effective and enduring solution to the problem of displacement. For this reason, the Colombian Constitutional Court in its judgment called on “… both the Presidential Agency for Social Action and International Cooperation and the National Commission for Reparation and Reconciliation, in carrying out their functions vis-à-vis national laws and regulations, to comply with their obligation to establish the policies, plans and procedures necessary to ensure the satisfaction of the right to restitution of property, which has been denied for years to many of the people who are currently in a situation of forced displacement [in Colombia]”.45

Ibid.

Decision T-821 of 2007, p.49.

The cadastre is an official record of the location, quantity, characteristics, value and ownership of land.

Art. 19 of Act 387 of 1997 states that public entities of the agricultural sector should adopt programs, procedures and measures in order to regulate the sale, adjudication and titling of land located in areas of expulsion and receiving displaced population. It also mandates respecting lines of credit which were favourable to the displaced. The Act also set a record of sites of displaced populations, in order to prevent their sale or transfer of titles if it is done against the will of owners, and established measures for the return or relocation of displaced persons. For its part, Decree 250 of 2005 adopted among its guiding principles a restorative approach, which “is understood as the replacement equitable for loss or damage which occurred due to displacement, in order to enable individuals and households to enjoy the situation they were in before. Restitution contributes to the process of stabilisation and reconstruction of homes affected by displacement.” The Decree also establishes measures to protect the assets of the displaced population.

Housi ng and ESC Rights Law Quarterly

challenging violations of the right to water before the European court of human rights Butan and Dragomir v. Romania46 European Court of Human Rights Right to water – non-state actors

Facts The two applicants (a father and son) lived in a flat situated on the top floor of an apartment building in Bucharest. The applicants’ flat was supplied with water based on a collective contract between the association of flat owners of the building and Aquanova S.A., a private water provider. In 2001, the families living on the lower floors of the building turned off the water in the pipes leading up to the applicants’ flat. Subsequently, the applicants filed a complaint with a local court which ordered their neighbours to turn the water back on. For unknown reasons, this decision was not enforced.

This case formed a part of a wider phenomenon of mass voluntary disconnections from the public utilities system which took place in post-Communist Romania throughout the 1990s. This phenomenon was caused by the widespread poverty associated with economic transition as well as the unwillingness of the consumers to continue supporting a costly and inefficient system of delivery. In such circumstances, individuals who were willing to continue paying (like the applicants) were often denied essential services. This was due to the inflexibility of providers, who were reluctant to bear the costs of changing the system from one of collective provision to one of individual provision.

45 46 47 48

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In 2003, the applicants filed a complaint with the Bucharest Tribunal,47 asking that Aquanova be ordered to provide them with an individual water connection. The request was rejected, with the court reasoning that the water provider could not be blamed for the actions carried out by the applicants’ neighbours. Moreover, the Court stated that granting the applicants an individual contract would be impracticable since it would require the replacement of the old communal system with a new individual connection to the water mains. The Bucharest Court of Appeal confirmed this judgment, and added that, since Aquanova had a limited obligation to connect every building – and not every individual flat – to the water grid, the applicants would have to pay all the expenses and obtain all the authorisations associated with the establishment of an individual connection. In 2005, the applicants filed a final appeal with the High Court of Cassation and Justice.

The Appeal was allowed and the High Court struck down the lower courts’ judgments. The High Court reasoned that the very essence of a public water provision service was to conclude contracts with individual consumers.

Despite the High Court judgment, Aquanova continued to require the applicants to cover the costs asso-

ciated with an individual connection. Following a fresh complaint, Aquanova was sentenced to pay a fine of 20 ROL (or approx. 6 Euro) daily until it enforced the judgment. However, the applicants’ flat had still not been connected to the water grid by the time that the Strasbourg Court delivered its judgment.

Decision In 2006, the applicants filed a complaint with the European Court of Human Rights (ECtHR). The ECtHR granted the complaint priority status and delivered a judgment on 14 February 2008.48 The Court primarily examined the applicants’ complaint from the standpoint of Article 6§1 of the European Convention of Human Rights, which sets out the right to a fair trial.

The applicants argued that the local authorities in Budapest failed to ensure the enforcement of final domestic judgments; that since the authorities failed to put a stop to the disruption caused by their neighbours, they were forced to ask Aquanova for an individual contract; and that the authorities’ inaction was in breach of existing regulations that empowered local officials to punish any illegal hindrance to accessing water from the public grid. Finally, in response to the Government’s allegation that the complaint was premature, the applicants argued that they

Decision T-821 of 2007, p. 54.

Application no. 40067/06, Judgment of 14 February 2008. Full text of judgment is available at: www.echr.coe.int This is a county level court.

Based on Article 41 of the Rules of the Court, the Court may grant priority status to certain cases. This measure is taken in very few cases and is at the Court’s discretion. The reasons for granting a complaint priority status are not explained in the judgment.

In general, a case is expedited because of the seriousness of the violations and the irreparable harm that these violations may cause

Housing and ESC Rights Law Quarterly

had been deprived of water since 2001 and that their living conditions during this period had been very precarious.

The Strasbourg Court held that the Romanian Government was in breach of Article 6§1 ECHR. It noted that the judgment delivered by the High Court had never been enforced. The Court attached particular significance to the fact that Aquanova was entrusted with public water provision service on the basis of a special administrative law contract, the execution of which was supervised by the municipality. The Court ruled that, despite the existing authority link between the state and the water provider, the former had not sanctioned the latter’s refusal to comply with the above-mentioned judgments in any way. On the other hand, the Court found that it had not been demonstrated that the fine imposed on the water provider had actually been enforced.

The applicants also alleged a number of other violations. These

mainly related to the state’s failure to take action against the applicants’ neighbours and the suffering caused by the inhuman living conditions that they had to endure as a result of the lack of water. The Court, however, dismissed these claims as either manifestly ill-founded or because they did not raise any separate issues to those examined under Article 6§1.

Due to the inbuilt limitations of the European Convention of Human Rights – which is primarily a civil and political rights instrument - the Court chose to deal with what was essentially a claim of a breach of the right to water on very narrow grounds. That is, as a failure of the State to ensure implementation of the final domestic judgments. Unfortunately, the Court refused to explore in any depth other issues raised by the applicants, including the failure by the state to put a stop to the disruption caused by the applicants’ neighbours and the question of whether the suffer-

ing associated with lack of water over an extended period of time was capable of engaging (that is, sufficient to engage) Articles 3 or 8 of the Convention or both. On a positive note, it is significant that the Court attached particular importance to the institutional connection between the State and the water provider as well as the public character of the service provided by the Aquanova.

It is thus apparent that the State cannot escape responsibility for the provision of basic services to its citizens simply by privatising these services. Finally, the fact that the case was given priority status, as well the relatively high – by the Court’s standards – award of just satisfaction (that is, damages) indicate that the denial of water constitutes a human rights violation worthy of particular scrutiny.

This casenote was prepared by Constantin Cojocariu, Lawyer, Europe Programme, Interights

ROUND‑UP OF RECENT DECISIONS IN ESC RIGHTS CASES On 31 January 2008, the Advocate General of the European Court of Justice delivered his opinion in Case C-303/6 S. Coleman v.

Attridge Law and Steve Law.49 The opinion was the result of a reference for a preliminary ruling from the Employment Tribunal, London South (United Kingdom)).

The Employment Tribunal raised a question about the scope of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘the Directive’). Article 1 of that Directive states that, “The purpose of this Directive is to

lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment”.

The Employment Tribunal asked

»

unless immediate action is taken 49 For more information on the procedure in relation to references for preliminary rulings and the role of the Advocate General, see

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The Editorial Board of the Housing and ESC Rights Law Quarterly is: »

whether the prohibition of discrimination contained in the Directive covers cases where an employee is treated less favourably than her colleagues because, although not herself disabled, she is associated with a disabled person. In this case, Ms Coleman had been discriminated against on the basis of her role as carer to her son who was physically disabled. The Advocate General concluded that the Directive protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person. In doing so, the AG stated that, “the effect of the Directive is that it is impermissible for an employer to rely on … disability … in order to treat some employees less well than others … This fact does not change in cases where the employee who is the object of discrimination is not disabled herself. The ground which serves as the basis of the discrimination she suffers continues to be disability”.50 The Opinion will be considered by a full panel of judges later this year, which will choose either to confirm or reject it.

http://curia.europa.eu/en/instit/presentationfr/index_cje.htm

CASE TO WATCH On 5 February 2008, the European Committee of Social Rights declared the complaint of European Roma Rights Centre v. Bulgaria51 to be admissible. The complainant NGO alleges that Bulgaria discriminates against Roma in the field of health care because: (1) legislation does not guarantee health insurance for the most vulnerable individuals, of whom a disproportionate amount are Roma, resulting in the exclusion of a large number of Roma from access to health care services; (2) government policies do not adequately address the specific health risks affecting Romani communities; and (3) the government has not taken steps to put an end to the widespread discriminatory practices on the part of health care practitioners against Roma in the provision of health services (denial of medical assistance and/or provision of inadequate health services, and segregation of Roma women in maternity wards). The complaint alleges violations of a number of rights set out under the Revised European Social Charter, namely Article 11 (right to protection of health) and Article 13 (right to social and medical assistance), either alone or in conjunction with Article E (non-discrimination). This collective complaint will provide the Committee with a key opportunity to further flesh out the rights to health and social and medical assistance in the context of a concrete factual situation.

50 Advisory Opinion, para 22.

51 Complaint No. 46/2007

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Housing and ESC Rights Law Quarterly

• Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Malcolm Langford, Visiting Fellow, Norwegian Centre on Human Rights, Norway; • Professor Sandra Liebenberg, Chair in Human Rights Law, Stellenbosch University, South Africa; • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCRNet, USA; • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme.

Coordinating Editor: • Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

Contact If you have any comments, require additional copies, or wish to subscribe to the mailing list for the Housing and ESC Rights Law Quarterly, please contact: quarterly@cohre.org For general information on the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE ESC Rights Litigation Programme Rue de Montbrillant 83 1202 Geneva, Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: cohre@cohre.org web: http://www.cohre.org