COHRE Status of HLP Rights Sri Lanka 2007

The status of the Housing, Land and Property Rights in Sri Lanka -

Status of Housing, Land and Property Rights in Sri Lanka -

Centre on Housing Rights & Evictions (COHRE) COHRE International Secretariat 83 Rue de Montbrillant 1202 Geneva SWITZERLAND tel.: +41.22.7341028 fax: +41.22.7338336 e-mail: cohre@cohre.org web: www.cohre.org COHRE Women & Housing Rights Programme (WHRP) 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 e-mail: women@cohre.org COHRE ESC Rights Litigation Programme (LP) 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 e mail: litigation@cohre.org COHRE Right to Water Programme (RWP) 83 Rue de Montbrillant 1202 Geneva SWITZERLAND tel.: +41.22.7341028 fax: +41.22.7338336 e-mail: water@cohre.org

COHRE Global Forced Evictions Programme (GFEP) (Postal address) PMB CT 402, Cantonments Accra (visitors address) No. 17 Fifth Crescent Street Asylum Down Accra GHANA tel.: +233.21.238821 fax: +233.21.231688 e-mail: evictions@cohre.org

COHRE Asia & Pacific Programme (CAPP) (Postal address) P O Box 2061 Phnom Penh 3 (visitors address) No. 9A, Street 420 Sangkat Boeung Tra Beak, Chamkarmon Phnom Penh CAMBODIA tel.: +61.3.94177505 fax: +61.3.94162746 e-mail: cohreasia@cohre.org

COHRE Americas Programme (CAP) Rua Jeronimo Coelho 102, Sala 21 Porto Alegre, CEP 90010-240 BRAZIL tel./fax: +55.51.32121904 e-mail: cohreamericas@cohre.org CAP - US Office 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 e-mail: litigation@cohre.org

CAPP - Sri Lanka Office 106 1/1 Horton Palce Colombo SRI LANKA tel: +94.11.269.3143 e-mail: cohresrilanka@cohre.org COHRE Africa Programme (Postal address) PMB CT 402, Cantonments Accra (visitors address) No. 17 Fifth Crescent Street Asylum Down Accra GHANA tel.: +233.21.238821 fax: +233.21.231688 e-mail: cohreafrica@cohre.org

© Copyright 2008 The Centre on Housing Rights and Evictions (COHRE), Geneva, Switzerland Status of Housing, Land and Property Rights in Sri Lanka - 2007 ISBN: 978-92-95004-52-8 All rights reserved The Centre on Housing Rights and Evictions is registered in Brazil, Cambodia, Sri Lanka, Switzerland, The Netherlands and the US as a not for profit organisation.

Copies are available from COHRE International Secretariat (see contact info. above) Written and prepared by: Nilanka Nanayakkara, Harriet Crowley and Varunika Jayasuriya Special thanks to: Dan Nicholson, Todd Wassel, Rasika Mendis and Hannah Neumeyer (review) Edited by: Maria Katsabanis Graphic Design & Print: Wits Associates – Sri Lanka Very special thanks to Kees Wouters who shared his experiences and knowledge.

All photos: Prasanna Gajamange; cover photo: Three years after the Tsunami - back to their old livelihood, living in houses restored using salvage material and further unpleasant living conditions This publication is dedicated to the victims of the Tsunami and of the on-going conflict in Sri Lanka

Contents Chapter 1

Introduction

1

Chapter 2

Sri Lanka’s international and constitutional obligations for ensuring HLP rights 2.1 What are housing, land and property rights?

2.1.1 Why are housing, land and property rights important?

2.2 International standards 2.2.1 The right to adequate housing 2.2.2 The prohibition of forced evictions 2.2.3 United Nations Guiding Principles on Internal Displacement 2.2.4 United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) 2.3 The obligations of the Government of Sri Lanka 2.3.1 National housing, land and property rights

3

Violations of HLP rights in Sri Lanka in 2007 3.1 Violations as a result of the armed conflict 3.1.1 Internal displacement during the year 2007 3.1.2 High Security Zones (HSZ) 3.1.3 LTTE HSZ 3.1.4 Consequences of displacement 3.1.5 Measures taken by the relevant authorities in order to uphold housing, land and property rights 3.1.6 Recommendations 3.2 Violations as a result of natural disasters 3.2.1 Housing, land and property rights violations due to natural disasters 3.2.2 Reasons for housing, land property rights violations due to natural disasters 3.2.3 Recommendations 3.3 Violations as a result of development projects 3.3.1 Construction of the Hambantota International Harbour 3.3.2 Construction of the Reservoir across Deduru-Oya 3.3.3 Recommendations

9

Chapter 3

3 3 3 3 4 5 5 6 7

9 9 10 11 11 11 13 14 14 15 16 17 17 17 18

Chapter 4

The visit of the Special Representative of the Secretary-General on Human Rights of Internal Displaced Persons, Mr. Walter Kalin, to Sri Lanka in 2007

19

Chapter 5

The Tamil Eviction Case

21

Centre for Policy Alternatives and another VS. Victor Perera- Inspector General of Police and 8 others

21

Chapter 6

Conclusion

23

Appendix

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

24

International HLP standards

24

The right to adequate housing

24

The prohibition of forced eviction

26

United Nations Guiding Principles on Internal Displacement United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) National HLP rights and obligations

27

Further Resources

28 30

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Introduction

Chapter 1 Introduction Housing, land and property rights in Sri Lanka are in a state of crisis, marked by more than 20 years of civil conflict, the devastation caused by the Asian Tsunami in December 2004 and by inappropriate legislation, policy and practice that does not provide adequate protection to vulnerable communities throughout the country.

As a result, Sri Lanka has one of the largest populations of internally displaced persons (IDPs) in the world.

Other marginalised and at risk groups such as slum dwellers and plantation workers also lack basic housing rights such as security of tenure, which renders them susceptible to forces of the economy and government development projects. Women particularly face discrimination related to titling schemes, restitution, and other elements concerning emergency and disaster relief.

Policies and initiatives implemented by government and international organisations to address housing, land and property needs of IDPs and other vulnerable groups have too often been retrogressive, ad hoc and have not fully met international or domestic standards.

This report on the status of housing, land and property (HLP) rights in 2007 provides an overview of the key trends, events and violations pertaining to housing, land and property rights in Sri Lanka. This is the first report of its kind, with no other publication focused on tracking the housing, land and property rights situation in Sri Lanka. The report aims to provide development practitioners, international and national NGOs, human rights defenders, lawyers, government officials, and policy makers with valuable insight into the challenges facing Sri Lanka and pertinent information to help protect the housing, land and property rights of IDPs and other marginalised and vulnerable groups.

The information in this report was collated primarily through desk research and through a combination of internet, media and published resources. It has also been informed by COHRE’s work with partner organisations and field research. It is envisaged that this will be an annual publication giving updates on ongoing cases and events, documenting new ones and including personal testimony from those who have suffered housing rights violations.

In Chapter 2 Sri Lanka’s international and constitutional obligations towards ensuring housing, land and property rights are briefly reviewed, with a more detailed explanation in the Appendix.

Figures are discussed in detail in Chapter 3.

Status of Housing, Land and Property Rights in Sri Lanka -

Chapter 3 lists violations of housing, land and property rights that have occurred in 2007 due to the ongoing conflict, natural disasters, and development projects. This chapter also includes some reasons for these violations, enumerates positive measures taken by the relevant authorities and provides recommendations in order to uphold housing, land and property rights in Sri Lanka.

In Chapters 4 and 5 the report reviews two major events in the field of housing, land and property rights issues in 2007: the visit of the Special Representative of the Secretary General on Human Rights of Internal Displaced Persons, Mr. Walter Kalin, and the Tamil Eviction Case.

It is COHRE’s sincere hope that all those concerned with protecting housing, land and property rights in Sri Lanka will find this publication useful, and will avail themselves of COHRE’s resources and expertise.

Government constructed flats at Dehiwala coast - did not get destroyed by the Tsunami; still more to be done

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

Chapter 2 Sri Lanka’s international and constitutional obligations for ensuring housing, land and property rights 2.1 What are housing, land and property rights?

Housing, land and property rights refer to the right of everyone to an adequate standard of living, including adequate housing and to have respect for ones home and property. The ultimate goal of those working on housing, land and property rights is to prevent forced evictions and to facilitate the attainment of adequate housing and land– which is habitable, affordable and culturally appropriate, and which has security of tenure, access to services and which is located close to basic infrastructure – for everyone. For persons displaced by conflict or disaster, housing, land and property rights recognise their right to have restored the housing, land and property they lost, whether by free and voluntary return, provision of adequate alternative housing or compensation.

2.1.1 Why are housing, land and property rights important?

Housing and land rights are human rights, which mean they are universal legal entitlements that all people have because of their inherent dignity as human beings. The Universal Declaration of Human Rights guarantees different types of rights to everyone, everywhere in the world. These rights are protected by many international treaties, which Sri Lanka has ratified and therefore agreed to implement. The most important of these treaties are explained briefly below.

2.2 International standards 2.2.1 The right to adequate housing Various international human rights instruments recognize the right to adequate housing. Five of them are binding for Sri Lanka. The International Covenant on Economic, Social and Cultural Rights (ICESCR), article 11 (1); article 5 (e) (iii) of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD); the Convention on the Elimination of all Forms of Discrimination Office of the High Commissioner for Human Rights, Fact Sheet No. 25, Forced Evictions and Human Rights available at http://www.unhchr.ch/html/menu6/2/fs25.htm.

Status of Housing, Land and Property Rights in Sri Lanka -

against Women (CEDAW) in its article 14(2) (h); the Convention on the Protection of the Rights of all Migrant Workers and members of their Families.

The most important housing right is the right to adequate housing. It is the right of everyone to live somewhere in security, peace and dignity. Article 25 of the Universal Declaration of Human Rights states that: “Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” The most important treaty ratified by Sri Lanka is the International Covenant of Economic, Social and Cultural Rights (ICESCR). Article 11 (1) states that: “The 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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) issues General Comments, which provide authoritative interpretations of the rights contained in the Covenant.

In 1991 UNCESCR issued General Comment 4 to explain the right to adequate housing. The right to adequate housing contains seven elements: legal security of tenure, services and materials, affordability, habitability, accessibility, location and cultural adequacy.

2.2.2 The prohibition of forced evictions An important aspect of the right to adequate housing is the right not to be forcefully evicted from one’s home. In 1993, the UN Commission on Human Rights declared “forced evictions constitute gross violations of human rights.” According to UNCESCR, evictions “can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of law.” In 1997 UNCESCR issued General Comment 7 on forced evictions, providing a four-tier test to determine the legality of forced evictions, and a standard to which governments can be held accountable.

In Sri Lanka there are many communities who do not have legal title to be on the land they live on.

Housing, land and property rights also protect people residing in informal settlements from forced evictions. Governments are obligated to consult with affected communities and to minimise any relocation and to ensure no one is left homeless. All the protections that are afforded in international law apply to all, including those living in informal settlements.

In addition, Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) contains, inter alia, the prohibition of arbitrary or unlawful interference with a person’s home.

Commission on Human Rights Resolution 1993/77, UN Doc. E/CN.4/1997/RES/77 Commission on Human Rights Resolution 2004/28, UN Doc. E/CN.4/2004/RES/28.

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

Re-settlers down Dehiwala coast

2.2.3 United Nations Guiding Principles on Internal Displacement In Sri Lanka, the displacement resulting from a civil war spanning over twenty years and the recent tsunami natural disaster has meant the rights of displaced persons have become critical to thousands who have lost their homes and livelihoods.

The Guiding Principles on Internal Displacement contain widely accepted standards on protection and assistance to IDPs. The Guiding Principles reflect states’ obligations under international law and include standards for the protection and recovery of housing, land and property of IDPs.

2.2.4 United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) The Pinheiro Principles are the international standard on housing and property restitution and are crucial to resolving the complexities associated with bringing displacement to an end in Sri Lanka. The right to housing and property restitution provides that all people who have been forcibly displaced have a right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any loss of housing, land and/or property that is impossible to restore.

The Pinheiro Principles are designed to provide practical guidance to States, UN agencies and the broader international community providing a consolidated and universal approach to dealing effectively with outstanding housing and property restitution claims. They are grounded firmly within existing international human rights and humanitarian law. The Pinheiro Principles are a key element of the legal framework that should inform an analysis of the status of housing, land and property rights in Sri Lanka.

See Appendix for further explanation of the Pinheiro Principles.

Status of Housing, Land and Property Rights in Sri Lanka -

2.3 The obligations of the Government of Sri Lanka The Government of Sri Lanka has ratified the key treaties concerning housing and land rights the most important of which have been outlined above. In doing so the State is bound to give effect to the ICESCR particularly through enacting legislation.

The ICESCR sets out the nature of the obligation of States in Article 2: “Each State Party to the present Covenant undertakes to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

The Pinheiro Principles (Principle 2) clearly defines the States responsibility towards IDPs housing and property restitution “States shall demonstrably prioritise the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to land and property restitution.”

Governments have four important duties with respect to housing, land and property rights. The duty of nondiscrimination means treating everyone equally in the law and in practice. Law and policies of government should not discriminate between persons on grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, disability, birth or other status.

The duty to respect means refraining from interfering with people’s existing access to housing. The duty to protect means governments must protect persons from violations by others, such as corporations and landlords. Finally the duty to fulfil means taking steps to make sure that everyone will progressively realise his/her right to adequate housing.

Having looked at the international legal framework and demonstrated the obligations that States have to uphold and protect the rights contained within international treatise, it is now possible to view the domestic legal framework and the protections that it affords the people of Sri Lanka and assess the existing gaps between international obligations and national law.

Informal settlers in Slave Island, Colombo 2- even the express trains travel slow; one of many concerns to society

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

Tsunami had no discrimination - a house destroyed at Waskaduwa

2.3.1 National housing, land and property rights The Sri Lankan constitution only recognises civil and political rights, not socio-economic rights.

Therefore, its fundamental rights chapter lacks express provision for safeguarding housing rights.

The only constitutional protection of housing rights is in the Directive Principles of State Policy. Article 27c of the Constitution provides that the State must ensure: “the realization by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improved of living conditions and the full enjoyment of leisure and social and cultural opportunities.”

However, the Directive Principles are declaratory only and are not justiciable in a court of law, but are used to guide the State. Nonetheless the Sri Lanka Supreme Court has used the Directive Principles to interpret and apply other, justiciable provisions of the constitution. It has also used innovative thinking to interpret the fundamental rights to give effect to several socio-economic rights. The Court has referred to many international human rights treaties and has attempted to streamline local human rights standards with Sri Lanka’s international obligations.

However, in terms of housing rights, these attempts have not gone far enough. Sri Lanka does not have a well-formulated housing policy. Successive governments have dealt with the issue by adopting ad hoc policies catering to particular situations as they have arisen, and not as part of a broader and well-formulated policy. This has led to inconsistent policies that are not necessarily compliant with international standards and therefore do not afford the necessary levels of protection to those whose housing, land and property rights have been violated. The gap between domestic and international legal frameworks needs to be addressed to increase protection of housing, land and property rights in Sri Lanka.

For more information and detail on the international and domestic legal frameworks for housing, land and property rights please see the Appendix.

Status of Housing, Land and Property Rights in Sri Lanka -

After the forced eviction of informal settlers Slave Island, Colombo 2

Violations of HLP Rights in Sri Lanka in 2007

Chapter 3 Violations of housing, land and property rights in Sri Lanka in 2007 3.1 Violations as a result of the armed conflict In 2007, the majority of housing land and property rights violations in Sri Lanka was the result of displacement due to the internal armed conflict. Many of those who are displaced remain in Sri Lanka as IDPs. It is difficult to determine the exact numbers of IDPs in Sri Lanka as there is a lack of proper criteria to define a displaced person.

The statistics used in this chapter have been gathered throughout 2007. They come from a variety of sources including the Office of the UN High Commissioner for Refugees (UNHCR), the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), government agencies and national newspapers.

3.1.1 Internal displacement during the year 2007 According to estimates from the Internal Displacement Monitoring Centre, around 460 000 people remained displaced in Sri Lanka in August 2007 as a result of conflict and violence. This includes over 181 000 people, or 49 000 families, displaced by the fighting since April 2006. It is a complex picture with new waves of displacement throughout 2007, coupled with government initiatives to return and resettle different groups of IDPs, namely in Vakarai, Vaunativu, Mutur and Trincomalee. Some groups spontaneously return or resettle of their own accord and other IDPs are displaced time and again.

The reasons for people being displaced as a result of conflict may be categorised as follows: (1) Housing, land and property partially or wholly damaged due to armed attack and uninhabitable; (2) Property situated in areas declared High Security Zones (HSZ) by the Sri Lankan Government; (3) Property taken over by the Liberation Tigers of Tamil Eelam (LTTE).

Daily Mirror, The Island, Lankadepa, Daily News and Lakbima

Internal Displacement Monitoring Centre - Norwegian Refugee Council, ‘Civilians in the way of conflict: displaced people in Sri Lanka, Page 11, 26 September 2007, http://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/ 882EB0DAEEA545A4C12573620026E7EB/$file/Sri_lanka_special_report_sep07.pdf

Uditha Jayasinghe, ‘ Mutur IDPs: Batting a man-made tsunami in the guise of war’, Daily Mirror, 17 April 2007, p. A12.

Status of Housing, Land and Property Rights in Sri Lanka -

IDP camp - Kanthale

3.1.2 High Security Zones (HSZ) One of the obstacles preventing IDPs from returning to their places of origin is the occupation of large portions of land in the North and East by the Sri Lankan armed forces. Areas of land have been taken over by the military to protect its strategic interests. According to Inter Agency Standing Committee (IASC) reports, the establishment of HSZ in the East will prevent large numbers of IDPs from returning to their place of origin, meaning they will have to be resettled elsewhere.

The President of Sri Lanka gazetted the Muttur-Sampur HSZ on 30 May 2007. The creation of this HSZ has prevented IDPs displaced from the area in June 2006 from returning to their homes and lands, forcing them to remain in camps in other parts of Trincomalee and Batticaloa. The fate of these IDPs remains uncertain and it is unclear whether they will be able to regain their land and property or whether they will have no choice but to resettle elsewhere.

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Violations of HLP Rights in Sri Lanka in 2007

3.1.3 LTTE HSZ The LTTE also operates HSZs in those areas under its control. There is little information about the extent of these zones and the restrictions they impose on people, particularly regarding access to their land and property. According to the Refugee Council returnees have no access to “vast areas of Mulaitivu District and many other parts of the Vanni.”

3.1.4 Consequences of displacement The displacement of people from their original homes and lands has a number of consequences for HLP rights:  Owners and non-owners, such as tenants, lessors and licensees, have lost ownership or possession of their houses, lands and/or property due to their occupation by others.  Many have lost documentation, making it difficult to prove their title to property.  Problems relating to two or more claimants to the same plot of land; once the original owner vacates their homes and lands which are subsequently encroached upon, the encroacher can claim prescription title (the title gained on the land of another by continued regular use over ten years) under the general law.  Problems relating to the payment of compensation for damaged property and the construction of new houses; such as when ascertaining the actual beneficiaries, many have lost documentation making it difficult to prove their entitlements.

3.1.5 Measures taken by the relevant authorities in order to uphold housing, land and property rights Various measures have been taken by relevant Sri Lankan authorities in an attempt to protect housing, land and property rights of IDPs.  The Ministry of Resettlement and Disaster Relief (MRDR), with assistance from UNHCR, UNDP and the Japanese Government, has commenced a resettlement programme by granting building materials and financial assistance in order to build houses for IDPs in Trincomalee and Batticaloa Districts.  The military have decided to allow IDPs to go ahead with cultivating crops in Arafa Nagar in Mutur South.10  A total of 4 185 partially destroyed houses have been rebuilt in Vakarai.11 Sri Lanka: IDP’s and Safe Returns, London: The Refugee Council, September 2003, p. 36.

Don Asoka Wijewardena, ‘Resettlement programme for IDPs,’ Daily Mirror, 15 August 2007, p. A9.

Yohan Perera, ‘Arafa Nagar IDPs allowed to cultivate’, The Island, 16 June 2007, p. 3.

10

Jayantha Samarakoon, ‘4185 houses built for IDPs’, Lankadepa, 14 May 2007, p. 8.

11

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Status of Housing, Land and Property Rights in Sri Lanka -

 With the Vakarai resettlement now completed the government is considering returning around 150 000 IDPs from Vavunathevu.12  The government presented the Jathika Saviya Authority Bill in Parliament to formulate a National Policy and plan to implement, coordinate and monitor the resettlement of IDPs.13  Troops engaged in de-mining operations to resettle Vakarai displaced.14  The government made plans to construct 100 new houses for the benefit of villagers in Bakmitiyawa, Ampara which is a terrorist-threatened village, under its Jathika Saviya programme.15 Programmes of resettlement and return by the Sri Lankan authorities have provided IDPs with housing but measures have often been ad hoc, and do not fully comply with international laws and standards.

There is also a large number of IDPs who continue to live in camps or in host communities due to the inadequacy and/or non-implementation of restitution policies.

COHRE recognises the importance of advocating for the adoption of the United Nations Principles on Housing and Property Restitution (the Pinheiro Principles) as the standard by which programmes of housing and property restitution in Sri Lanka are to be implemented. The Pinheiro Principles set out a universally applicable standard by which housing and property restitution may be implemented.

House under construction - Batticaloa

Uditha Jayasinghe, ‘Mutur IDPs Batting a man-made tsunami in the guise of war’, Daily Mirror, 17 April 2007, p. A12.

12

Wijitha Nakkawita and Lakshmi De Silva, ‘National Policy to resettle 400 000 IDPs,’ The Island, 21 February 2007, p. 4.

13

Chamikara Weerasinghe, ‘Troops in de-mining operations to resettle Vakarai displaced’, Daily News, 03 February 2007, p. 3.

14

Irangika Range, ‘100 new houses for Bakmitiyawa villagers’, Daily News, 18 January 2007, p. 12.

15

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Violations of HLP Rights in Sri Lanka in 2007

They provide an objective standard by which a process of restitution may be evaluated. These principles recognise and facilitate the realisation of two interrelated rights, namely the right to return and the right to restitution. All refugees and internally displaced persons have the right to return to their countries as well as to their original homes and lands. The process of return can only be realised however, where there is adequate recognition of their right to housing and property restitution.

In 2007, COHRE planned to facilitate the building of a comprehensive restitution policy, with the involvement of other government and non-governmental agencies, whose mandate is relevant to housing and property restitution. It is important that any policy intended for the restoration of housing and property rights gives due recognition to return and restitution as the preferred remedy to displacement, and endorses internationally recognised standards of best practice as is suitable to Sri Lanka.

3.1.6 Recommendations  Implement restitution programmes based on the Pinheiro Principles.

Restitution is a legal remedy that attempts to restore persons to their pre-loss position prior to displacement, and to address the violation of their HLP rights under international law. While it may not be practically possible to implement restitution programmes in the current context of resumed hostilities, it is important to make an assessment of the legal, policy and institutional mechanisms that would be necessary to implement an effective programme of restitution.

 The development of institutional structures with a clear demarcation of authority and powers to deal with specific issues relating to housing, land and property rights of IDPs. The issues include: 

Secondary occupation, including the occupation by the Sri Lankan Army and the LTTE of privately owned housing, land and property.



Granting adequate compensation for reconstruction of housing, land and property damaged due to the war.



Implementing a practical method of proving identity and granting ownership rights over housing, land and property of IDPs.



Deciding on issues pertaining to the assessment of damage and reconstruction of property and the construction of new houses.



Disseminating adequate information to IDPs and consultation on matters pertaining to their restitution rights, including compensation.



Allowing people to freely choose between return, resettlement and integration.

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Status of Housing, Land and Property Rights in Sri Lanka -

3.2 Violations as a result of natural disasters More than three years after the Asian tsunami many displaced persons still have not received adequate housing. More than 11 500 people still live in temporary camps, mainly around Colombo and others still await their restitution claims to be heard by the government or international organisations. Other groups have fallen through the policy gaps and have been forgotten or in some cases purposely discriminated against.

3.2.1 Housing, land and property rights violations due to natural disasters Sri Lanka was one of the worst hit countries by the 2004 tsunami with over 35 000 deaths, half a million people displaced and 120 000 houses fully or partially destroyed. According to July 2007 figures, 113 673 houses are either completed (89 044) or in progress of completion.16 However, these figures include the houses built in excess of need in the South and West of the country, which mask the shortfall in housing in the North and East.

The Sri Lankan Government and donors are still to complete the construction of permanent houses for all families whose homes were destroyed or damaged by the tsunami. Beneficiaries who have received houses have not necessarily received title for their new properties and therefore do not have full security of tenure. This has been partly caused by a lack of awareness amongst donors on how to grant houses to beneficiaries to ensure security of tenure and partly because there are no clear guidelines set down by relevant government authorities on how and when security of tenure can be achieved.

In August 2007, the International Organization for Migration (IOM) in Sri Lanka reported that almost 11 000 families displaced by the 2004 tsunami remained in transitional sites. This number does not include those displaced from the LTTE-controlled areas of Kilinochchi and Mullaitivu, as figures were not available or tsunami-displaced people living with host families.

In mid-2007, the largest number of tsunami-affected families still living in transitional shelter sites was in Colombo (1 323 families). COHRE and the United Nations Office for Project Services (UNOPS) carried out a survey of tsunami shelter sites in Colombo to find out why these families still have no sustainable housing solutions. The results show that there is little consistency in assistance given to families by authorities. Residents of the shelter sites are often confused about the process to secure assistance and therefore face difficulty in claiming their rights, the most important of which is, ‘a house for a house, regardless of ownership’ under the Tsunami Housing Policy. The results also suggest that some families were refused assistance even though they are eligible under the policy.

Over 18 000 families in Walapane, Hanguranketha were hit by floods and landslides;17 over 30 000 hit by floods and landslides in the Nuwara Eliya District;18 and over 3 793 families hit by floods and landslides in the Hambantota District.19 Many of these families have lost or suffered severe damage to their housing.

Peoples Planning Commission, People’s Report India, the Maldives, Sri Lanka & Thailand, ‘Homestead Land & Adequate Housing in the Post-Tsunami Context’ Peoples Report 2007, Chapter 1, p. 5.

16

Wasantha Ramanayake, ‘Houses for Norochcholai’s displaced’, Daily News, 20 January 2007, p. 3.

17

Mohammed Naalir, ‘30 000 hit by floods and landslides in the Nuwara Eliya District’, Daily News, 16 January 2007, p. 11.

18

Gagani Weerakoon, ‘ Floods, landslides: 30 000 still homeless,’ Daily Mirror, 16 January 2007, p. A11.

19

14

Violations of HLP Rights in Sri Lanka in 2007

Dept. of Coastal Conservation buffer zone restriction notice - no construction or restoration within 300 meters from coast without a permit

3.2.2 Reasons for housing, land property rights violations due to natural disasters While human-made disasters can be prevented, natural disasters cannot. However, in relation to these disasters, the Government can take proper precautions and adopt and implement policies beforehand in order to be prepared and address the needs of the victims. It is clear that as a result of failing to take such precautions Sri Lanka was faced with unexpected problems.

Many policy gaps became apparent in the post tsunami recovery phase that has yet to be rectified for the protection of natural disaster IDPs. Without the protection of housing, land and property rights, IDPs can become more vulnerable to other forms of human rights abuses, including gender based violence, discrimination, inadequate housing, restrictions on freedom of movement, and inadequate water and sanitation, among others.

Housing, land and property rights are often overlooked due to their complexity and the tendency to focus only on the immediate humanitarian need. However, housing, land and property rights are fundamental to ensuring a successful and sustainable recovery process. Without a stable family unit, with access to adequate house, water and sanitation, livelihoods recovery will not be possible in the long run as insecurity will prevail and returnees will be vulnerable to a host of other human rights abuses.

15

Status of Housing, Land and Property Rights in Sri Lanka -

One of the reasons for housing, land and property rights violations due to natural disasters is the lack of clear procedures that address housing, land and property rights in a comprehensive and sustained manner, and which consider the longer term implications for victims of natural disasters.

The Tsunami Housing Policy only addresses tsunami IDPs. As a result of failure to clearly communicate Tsunami Housing Policy to beneficiaries, tsunami victims have failed to receive relief they are entitled to and are in need of.

3.2.3 Recommendations It is noted by COHRE that there is still much that needs to be done by the Government of Sri Lanka and other actors to protect and promote the housing rights of IDPs. Substantial planning must occur to ensure the human rights of IDPs are respected beyond the humanitarian phase, and the return and recovery of those displaced are carried out in a safe and dignified manner. In order for this to happen, more than simple pledges and delivery of aid are needed.

The Government of Sri Lanka is obligated, together with NGOs and international agencies to ensure that return and recovery programmes address key human rights concerns.

To promote and protect the rights of the victims of natural disasters, COHRE makes the following recommendations: ď‚— The Government of Sri Lanka is urged to incorporate an adequate HLP rights framework into their response to natural disasters as well as to all of their post-disaster relief and recovery efforts in the future. This is especially important in view that some of the affected have been subject to recurrent disaster related displacement. ď‚— The main institution in Sri Lanka responsible for providing citizens with adequate housing is the National Housing Development Authority (NHDA). The NHDA was not a key actor in the posttsunami housing reconstruction programme. Therefore it is recommended that the NHDA and all appropriate authorities be involved in the adoption and implementation of policies. ď‚— In Sri Lanka, the Tsunami Housing Policy of April 2006 is presently applicable. Unfortunately it cannot be enforced through the courts of law since it has not been passed by parliament. It is recommended that the relevant amendments to the Tsunami Housing Policy of April 2006 be made in order to enforce it through the courts of law.

16

Violations of HLP Rights in Sri Lanka in 2007

3.3 Violations as a result of development projects Development projects are one of the factors that lead to the violation of housing, land and property rights.

While development projects are necessary in any society, their planning and implementation must be done with great care, taking into account, amongst others, the housing, land and property rights of the people affected.

3.3.1 Construction of the Hambantota International Harbour The construction of the Hambantota International Harbour commenced in July 2007. About 450 families and business-persons had to vacate their lands and properties due to this project. Meanwhile, steps are also being taken to resettle families currently residing in the area of the construction site in Siribopura New Town, Hambantota. Business people, who are being resettled, are claiming they need to be allocated new land beside the Matara – Kataragama express high way in order to continue their businesses.

While many in Hambantota are now eagerly awaiting this massive project, there is also much outcry.

Particular criticism has been raised over the compensation packages on offer among several hundred families who will have to be relocated. The representative of those displaced has stated that the proposed compensation scheme is unfair and inadequate and some lands and properties to be acquired have been undervalued. There is a National Involuntary Resettlement Policy, which has been introduced with the involvement of the World Bank to compensate persons who are displaced due to development projects, which has been used by the Sri Lankan Government in the past. The affected community is requesting the Government comply with the National Involuntary Resettlement Policy when estimating their compensation packages.

Those who have been displaced due to the construction of the Harbour hope that the District Secretary will solve this problem and give a fair and just solution for the dispute over the compensation package.20

3.3.2 Construction of the Reservoir across Deduru-Oya The proposed massive reservoir across Deduru Oya threatens the livelihood of some 800 farmer families and the resettlement of approximately 5 000 villagers. The residents of the Deduru Oya area have expressed concern at the lack of adequate compensation on offer to those who will be displaced.

The Deduru Oya project is a mega development project first proposed in the 1950s. However, it never became a reality because of strong resistance from farmer families. Some of the villagers in the area now agree with the need for a reservoir to fulfil their most urgent requirements, such as to provide water for farming and to address their drinking water needs. Therefore some farmers residing in villages such as Mahawa, Wariyapola, Maspotha have willingly vacated their lands and properties to make way for the reservoir.

However, some people displaced by the Deduru Oya Irrigation Project say that the government has not kept its promises. The authorities had promised the villagers land from Anamaduwa, a reasonable Ishara Perera, ‘Construction of the Hambantota International Harbour displaced about 450 families’, Lakbima, 5 April 2007, p 6.

20

17

Status of Housing, Land and Property Rights in Sri Lanka -

compensation package and to provide basic facilities for the settlers. According to the villagers, basic facilities including access to roads, electricity, water, a dispensary or at least a school for their children have not been provided. Already 79 resettled families have returned to their original homes as they claimed their lives were under threat from wild elephants and lack of water.

While some villagers have willingly left their lands, others are unwilling to leave paddy fields and established cultivation, where they feel social and economically established. There is concern about possible grave impacts on their social and cultural values after being resettled in a place totally alien to them. According to some of the farmers, the irrigation scheme would give minimum benefits to people compared to the value of agricultural lands and coconut plantations to be submerged by the dam waters.

The government has promised to pay a sum of Rs 20 000 as compensation for the villagers who are vacating their lands. However, the villagers complain that the affected families were paid only a sum of Rs 16 000 for resettlement. They state that they were asked to come to the District Secretariat office in Wariyapola and to sign documents saying that they were willing to accept any amount given by the government as compensation. Even more worrying is that some forms were illegible and the officials asked them to sign blank documents.

The Director of the Deduru Oya Project believes that the authorities concerned are dealing with the problem appropriately, militating against public resistance to ensure the project is completed successfully. He also claims that no injustice will be done in the payment of compensations but it may take time due to the government rules and regulations. According to the government officials, most of the residents in these areas are illegal occupants of State lands and yet they are going to be compensated without discrimination.

The villagers’ main plea is that they be adequately compensated and given reasonably good lands to continue with their cultivation. The villagers have demanded a written assurance be given to them ensuring that their grievances will be met.21

3.3.3 Recommendations  The Government should ensure that adequate alternative housing and compensation for all losses is made available to affected persons in an expeditious manner.  Informal settlers of State land have a right to adequate housing and should be compensated for any loss of housing, land and property.

Jayantha Samarakoon, ‘Construction of the Reservoir across Deduru-Oya threatens the livelihood of some 800 farmer families’, Lankadeepa, 30 June 2007, p. 7.

21

18

The visit of the Special Representative of the Secretary-General on HR of IDPs, Sri Lanka in 2007

Chapter 4 The visit of the Special Representative of the Secretary-General on Human Rights of Internal Displaced Persons, Mr. Walter Kalin, to Sri Lanka in 2007 In late 2007, the Representative of the Secretary-General on the Human Rights of IDPs, Walter Kälin, visited Sri Lanka. The main aim of the mission was to “engage in dialogue with the Government with a view to ensuring the full enjoyment of human rights of internally displaced persons (IDPs) in Sri Lanka by identifying conditions necessary for them to achieve durable and sustainable solutions.”22 The final report of the mission includes a number of issues that are central to the right to housing, land and property restitution for IDPs in Sri Lanka and therefore provides and insight into the status of housing, land and property rights for IDPs.23 One of these matters central to finding and establishing durable solutions to displacement is the restitution of housing, land and property of IDPs. The vast majority of IDPs in Sri Lanka and elsewhere generally consider the return to their housing and land as a necessary prerequisite to overcoming displacement.

The centrality of restitution to finding durable solutions for IDPs is made evident throughout the report of the Representative and its recommendations:  The report points out that, according to Articles 14(a) and 28 of the Guiding Principles on Internal Displacement, IDPs have the right to choose among three durable solutions, namely to return to their place of origin, to locally integrate in the area of displacement, or to relocate to another part of the country. The decision of those affected should be voluntary and based on relevant information.24 In addition, the right to freely choose which durable solution to pursue is enshrined in Article 10 of the Pinheiro Principles.25  The report further notes that the “protection of IDPs’ housing, land and property rights is an essential component of durable solutions. IDPs are entitled to restitution or compensation for

Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, Addendum, Mission to Sri Lanka, UN Doc. A/HRC/8/6/Add.4, para.1.

22

Ibid.

23

Ibid, paras. 35, 36.

24

Paulo Sergio Pinheiro, ‘United Nations Principles on Housing, Land and Property Restitution for Refugees and Displaced Persons’ (Pinheiro Principles), UN Doc. E/CN.4/Sub.2/2005/17, 28 June 2005.

25

19

Status of Housing, Land and Property Rights in Sri Lanka -

their property, regardless of whether they choose to return, integrate locally or relocate”26 and that many IDPs face a lack of information about when they may be able to return to their homes or receive compensation.27  Regarding HSZ, which has displaced more than 120 000 individuals across Sri Lanka, the Representative observes that despite plans to release some land from the Muttur East zone, IDPs had no information about this, and that to his knowledge, nobody had received compensation for the loss of their land or houses in the HSZ.28  The Representative also notes the lack of a specific law or policy to comprehensively address internal displacement and the lack of clearly outlined institutional responsibilities for matters concerning protection of IDPs and durable solutions. The Resettlement Authority was established by legislation in early 2007. The authority has been given powers regarding registration, property disputes, housing, education and health infrastructure, recovery, development and livelihoods.

Unfortunately, the relevant legislation has failed to indicate substantive standards or to assign accountability for implementation.29 The problem of unclear responsibilities and the lack of standards defined by legislation, and thus enforceable standards, is one of the major issues that need to be attended to urgently in order to satisfactorily address the right to housing, land and property restitution as an important aspect of finding durable solutions for all IDPs in Sri Lanka.

The visit and report of the Representative on Sri Lanka has helped to shape the debate on finding durable solutions for IDPs in Sri Lanka and provides important recommendations that can be taken forward to improve the protection of housing, land and property rights for IDPs in Sri Lanka.

Ibid, para. 49.

26

Ibid, para. 49.

27

Ibid, para. 50.

28

Ibid, para. 19, 20, 27.

29

20

The Tamil Eviction Case

Chapter 5 The Tamil Eviction Case Centre for Policy Alternatives and another VS. Victor Perera - Inspector General of Police and 8 others30 In the early morning of 7 June 2007, over 300 Tamils were forcefully evicted from lodges in Colombo by the Government of Sri Lanka and returned to their areas of origin in the North and East of the country. According to reports this was done because of serious threats to the country’s national security, to assist those who wanted to return but did not have the financial means to do so, for their own protection from abductions, and because they had no valid reason for being in Colombo. A Fundamental Rights petition was filed in the Supreme Court on 8 June 2007, soon after the forced eviction of Tamils from certain lodges in the Colombo district.

The petition argued that the fundamental rights of the evicted people, recognised in the Constitution – the freedom from degrading treatment, the right to equality and equal protection of the law, freedom from discrimination based on ethnicity or geographical background, freedom from arbitrary arrest and detention and freedom of movement and the right to choose a residence within Sri Lanka – were violated. The petition also stated that these acts of forced eviction amounted to grave breaches of human rights in Article 147 of the Fourth Geneva Convention 1949.

The Supreme Court issued an interim order preventing any further evictions until the determination of the case.

When the case was taken up in the Supreme Court on 28 November 2007, the parties agreed to consider the possibilities to come to a settlement in view of the apology tendered by the Prime Minister to the Tamil lodgers of Colombo who were forcefully evacuated. The Government had stated that it would not happen again.

The Supreme Court emphasised that no person was to be evacuated without a valid order of a Court of Law. As the Tamil Evictions Case highlights, the protection of housing rights must take place on both the international and the domestic level. However, in order to ensure the consistency of application of such rights concerned groups and individuals must work to harmonise the current gap between international and domestic obligations.

Sri Lanka Supreme Courts Fundamental Rights Application No. 177/2007.

30

21

Status of Housing, Land and Property Rights in Sri Lanka -

Line houses at Java Lane, Colombo 2 - The road is the common recreation centre in their livelihood

22

Conclusion

Chapter 6 Conclusion COHRE is concerned about the violations of housing, land and property rights documented in this report and advocates strongly for increased adequate housing protection for all citizens, and in particular vulnerable groups such as IDPs and informal settlers.

As a State Party to the many International Covenants, the Government of Sri Lanka is legally obliged to respect the right to adequate housing, including the prohibition on forced evictions, for everyone within Sri Lanka.

The cases documented in this report clearly illustrate that not all of these standards were applied or adhered to during 2007. In documenting the reality for vulnerable groups living in Sri Lanka, this report highlights the actual situation regarding housing, land and property rights violations and the attempts made by the relevant authorities to deal with these violations. In most cases the steps taken by authorities were inadequate to effectively protect housing, land and property rights or to provide restitution for those who had suffered from housing, land and property violations.

In order to ensure the consistent application of housing, land and property rights concerned groups and individuals must work to harmonise the current gap between international and domestic obligations.

The recommendations included in this report advocate for national policies which have a housing, land and property rights framework grounded in international law and principles. It also recommends clearer mandates pertaining to housing, land and property responsibilities for government institutions to enable better planning and implementation of law and policy.

There is still much vital work needed to enhance housing, land and property rights protection in Sri Lanka.

Through continued advocacy for law and policy reform and strengthening of existing policy implementation it is hoped that real progress can made towards the full realisation of housing, land and property rights.

23

Status of Housing, Land and Property Rights in Sri Lanka -

Appendix Sri Lanka’s international and constitutional obligations for ensuring HLP rights International HLP standards The right to adequate housing The right to adequate housing was first incorporated in international human rights law with the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. Article 25 of the UDHR provides that: “Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

The UDHR is not a legally binding document. It contains specific guidelines for States to realise an adequate standard of living for all citizens. Most rights listed in the UDHR have later been codified in international human rights treaties. Of particular relevance is the adoption of two general human rights treaties in 1966, i.e. the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Both Covenants contain important standards for ensuring housing, land and property rights. Sri Lanka is a State party to both instruments and is therefore responsible to respect, protect and fulfil the human rights listed in these Covenants, including housing, land and property rights.31 The obligation to respect requires Sri Lanka to refrain from interfering with people’s rights. The obligation to protect means ensuring individuals and communities do not suffer from violations of their rights by non-state actors or other states, including inter-governmental organisations. Finally, the obligation to fulfil entails the obligation to progressively realise rights by taking positive steps towards that goal.

The ICESCR contains a codification of Article 25 UDHR in Article 11 (1), which provides that “The 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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

Sri Lanka acceded to the ICCPR & ICESCR on 11 September 1980.

31

24

Appendix

Article 11 (1) ICESCR not merely incorporates the right to ‘housing’ but the right to ‘adequate housing’.32 While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. In General Comment 4,33 the Committee on Economic Social and Cultural Rights has identified the following aspects to ‘adequate housing’: (a) Legal security of tenure. All persons should possess a degree of security of tenure. Tenure can take the form of rental (public and private) accommodation, cooperative housing, lease, owneroccupation, emergency housing and informal settlements, including occupation of land or property. Security of tenure guarantees legal protection against forced eviction, harassment and other threats. States parties should take immediate measures to confer legal security of tenure upon those persons and households currently lacking such protection. (b) Availability of services, materials, facilities and infrastructure. An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services. (c) Affordability. Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised.

Steps should be taken by States parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. (d) Habitability Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well. (e) Accessibility. Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. (f) Location. Adequate housing must be in a location that allows access to employment options, health-care services, schools, child-care centres and other social facilities. Housing should neither be built on polluted sites nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants. (g) Cultural adequacy. The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of

As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: “Adequate shelter means... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities - all at a reasonable cost.”

32

Committee on Economic, Social and Cultural Rights, General Comment No. 4 on the Right to Adequate Housing, 1991, UN doc.

E/1992/23.

33

25

Status of Housing, Land and Property Rights in Sri Lanka -

housing requirements Activities geared towards development or modernisation in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed, and that, inter alia, modern technological facilities, as appropriate are also ensured.

The prohibition of forced eviction The right to adequate housing carries with it the right not to be forcefully evicted from one’s home. It has been reiterated by the international community that forced evictions constitute “a gross violation of human rights, in particular the right to adequate housing.”34 Forced evictions have been 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.”35 International law lays down a four-tier test to determine the legality of evictions:36 1. Evictions can only be justified in the most exceptional circumstances and in accordance with the relevant principles of international law.

2. Governments must ensure that all feasible alternatives to eviction are explored in consultation with affected persons.

3. The following procedural protections shall be granted to those evicted: a) an opportunity for genuine consultation with those affected; b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; c) information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; e) all persons carrying out the eviction to be properly identified; f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; g) provision of legal remedies; Commission on Human Rights Resolution 1993/77, UN Doc. E/CN.4/1997/RES/77 Commission on Human Rights Resolution 2004/28, UN Doc. E/CN.4/2004/RES/28.

34

Ibid.

35

Committee on Economic, Social and Cultural Rights, General Comment No. 7 on the Right to Adequate Housing: Forced Evictions, 1997, UN doc. E/1998/22, Annex IV, paragraph 3.

36

26

Appendix

h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

4. Forced evictions should not however, result in individuals becoming homeless or vulnerable to the violation of other human rights. Where the affected persons are unable to provide for themselves, the State must take all appropriate measures to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, is available.

United Nations Guiding Principles on Internal Displacement The United Nations Guiding Principles on Internal Displacement address the specific needs of internally displaced persons. They identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration. The following definition of internal displacement is used in the Guiding Principles: “internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”37 The Guiding Principles on Internal Displacement contain widely accepted and commonly used standards on protection of and assistance for IDPs in the different stages or situations of displacement. While they are applicable to all situations of displacement, they primarily address protection concerns that typically arise in situations of conflict induced displacement. The Guiding Principles are based on and contain international human rights and humanitarian law, and therefore reflect states’ obligations under international law. The Guiding Principles include the following standards for the protection and recovery of housing, land and property of IDPs:  Principle 18 states that IDPs maintain their basic human right to an adequate standard of living during displacement, and therefore have a right adequate basic shelter and housing while they are in displacement. This means that when people are forced to flee from their homes, governments are obliged to provide adequate shelter and housing to the displaced population. Principle 18 is understood to entail progressive improvement of the shelter and housing situation the longer displacement lasts.  Principle 28-29 addresses return of IDPs and contain basic standards on housing, land and property restitution. The Guiding Principles clarify that all IDPs have the right to return to their homes voluntarily and in dignity, or to choose to settle in another part of the country. They further mandate authorities to assist IDPs with the recovery of their possessions, including housing, and to provide adequate compensation or reparation where such recovery is not possible.

Principle 2, United Nations Guiding Principles on Internal Displacement.

37

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Status of Housing, Land and Property Rights in Sri Lanka -

United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) The Pinheiro Principles are named after the United Nations Special Rapporteur appointed to make a study of Housing and Property Restitution, Sergio Pinheiro. They were formulated in view of the large numbers of IDPs who are forced to leave their homes and properties due to conflict or natural disaster. These principles came into existence in August 2005 after 7 years of research into housing rights of displaced persons.

The Pinheiro Principles reflect an international standard that has emerged for the realisation of the rights of refugees and IDPs to return and be restored to their original land and property. These standards have evolved from local and international activism in support of the rights of return and restitution as a solution to displacement. The principles are a combination of international human rights and humanitarian law,38 and principles derived from national restitution policies and programmes in situations of conflict around the world.

The principles have been formulated to provide a standard by which the right to restitution can be implemented and therefore rights fully realised by IDPs. They outline in detail standards for legal, policy, procedural and institutional arrangements, for housing and property restitution. They attempt to outline a systematic and a universal approach to a programme and policy of housing and property restitution both at the national and international levels.

The Pinheiro Principles are a set of standards that help achieve ‘rights based solutions’ to displacement. They prescribe standards by which the right to return and the right to restitution are realised.

The right to return and the right to restitution are not the articulation of two new rights; they are based on and derived from existing human rights, which have been endorsed by the international community.

The right to return The right to return extends to refugees and displaced persons not only the right to return to their country of residence, but to their original homes and lands as well: a) The ability to return to one’s home and land is viewed as the most dignified and sustainable solution to displacement; b) Principle 10 – articulates that a process of return must be based on the voluntary and informed choice on the part of the individual returnees, and made with due regard to issues of safety and security; c) Access to information – IDPs must be provided with objective, up-to-date and accurate information on physical, material and legal safety issues (amongst other things) in places of origin to which they are to return;

See section III: Overarching Principles - the right to non – discrimination, the right to protected from displacement, the right to peaceful enjoyment of possessions, the right to freedom of movement…

38

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Appendix

d) The right to return cannot be abridged by the use of time limitations, neither can there be any coercion to return; return must be voluntary and with the option of pursuing other durable solutions that does not compromise the right.

The right to restitution The right to restitution is seen as a component of the right to return, and a core remedy for displacement; the right of displaced persons to return and reintegrate cannot be guaranteed without first protecting the right of these persons to be restored to their land, housing and property.

The term restitution refers to a form of restorative justice, or an equitable remedy, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury status.39 Principle 2.2 articulates that the right to restitution shall be prioritised as the preferred remedy for displacement. There may be other remedial action that a state pursues, such as resettlement (in another location), or the provision of compensation. But governments must be prepared to restore housing and property of displaced persons (rebuild, repair), if that is what IDPs prefer.

IDP Camp at Trincomalee - many school premises in the North and East have lost their main function of education thus providing shelter to IDPs or the armed forces

Equitable remedies are those that are not too legalistic in their approach. Sometimes legal provisions cannot be interpreted in a post war environment, in the same manner as it is interpreted in peaceful circumstances.

39

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Status of Housing, Land and Property Rights in Sri Lanka -

National HLP rights and obligations Under the Sri Lankan Constitution, fundamental rights are those rights and freedoms to which every person is entitled. This includes a variety of human rights as listed in the ICCPR and ICESCR. Neither the right to adequate housing nor the prohibition of forced eviction is specifically stated as a fundamental right in the fundamental rights chapter of the Constitution of Sri Lanka. As such these rights are not expressly justiciable in a Sri Lankan court of law.40 However, an opening may be found based on the innovative thinking of the Sri Lankan judiciary, whereby the right to adequate housing may be recognised as a right implied in the Fundamental Rights Chapter.

For example, the right to life is not expressly recognised in the Constitution. Nevertheless, the Sri Lankan judiciary has been innovative in reading aspects of the right to life into Article 13. In Sriyani Silva v.

Iddamalgoda41 a widow alleging that her husband had been tortured filed a fundamental rights application.

The Supreme Court held that although the right to life is not expressly recognised as a fundamental right, it is recognised in some provisions of the Fundamental Rights Chapter. Furthermore, the Supreme Court has used existing fundamental rights to give effect to several socio-economic rights.42 The Court has referred to many international human rights treaties and has attempted to streamline local human rights standards with Sri Lanka’s international obligations.

In addition to the Fundamental Rights Chapter, Article 27(2)(c) of the Constitution contains a specific guideline for the State to realise an adequate standard of living for all citizens, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities. This guideline is part of the Directive Principles of State Policy and Fundamental Duties. The Directive Principles of State Policy are not expressly justiciable in a court of law but are intended to guide the state (Article 29 of the Constitution). Nonetheless, the Sri Lankan Supreme Court has used the Directive Principles to interpret and apply other, justiciable, provisions of the Constitution.

According to the Court, “the Directive Principles of State Policy shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society. Hence the restriction added at the end in Article 29 should not detract from the noble aspirations and objectives contained in the Directive Principles of State Policy, lest they become as elusive as a mirage in the desert.�

The Sri Lankan courts have shown a positive attitude towards granting relief to the victims of human rights violations. It is hoped that the Sri Lankan courts will continue to interpret its Constitutional provisions in such a manner as to advance the right of every citizen to adequate housing.

Justiciability normally means two things. First, the ability of courts to apply a certain law to a certain situation. Second, the right of a person (or entity) to request that the court make such a ruling. This latter right is often called the right to have standing before the court or other similar body.

40

[2003] 2 Sri Lanka Law Reports 63.

41

Bulankulame v. Ministry of Interior Development [2000] 1 Sri Lanka Law Reports, p. 243.

42

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Status of Housing, Land and Property Rights in Sri Lanka -

Further Resources The ideas and strategies outlined in this booklet provide a beginning for helping to protect the people of Sri Lanka from housing rights violations. However, there are many more resources available. COHRE produces a wide range of global publications that can be accessed though our website at: www.cohre.org.

COHRE Sri Lanka Publications Reports An Introduction to Housing and Land Laws in Sri Lanka Providing Housing Security for Children after the Tsunami Inheritance Rights of Children in Sri Lanka Women and their Right to own Property Booklets Gender Sensitive Guidelines on Implementing the Tsunami Housing Policy Applying the Pinheiro Principles in Sri Lanka Guide to Types of Property Rights in Sri Lanka The Right to Adequate Housing in Sri Lanka The Legal Enforcement of Economic, Social and Cultural Rights in Sri Lanka Information Bulletins Housing Rights: Issue 1 Return and Restitution‌ Awaiting Peace?

Housing Rights: Issue 2 The Right to Return and Restitution of Internally Displaced Children Briefing Papers Issue 1-Revisitng the Concept of the Head of the Household Leaflets Everyone has the Right to Adequate Housing Including the Right to Return Seminar Report Housing and Property Restitution in Sri Lanka, Learning from Other Jurisdictions

COHRE Sri Lanka Resource Centre COHRE Sri Lanka’s office, located at 106 1/1 Horton Place, Colombo 7, also houses a comprehensive Resource Centre including domestic and international legal publications on housing, land and property rights.

The Resource Centre is open to the public Monday-Friday 10:00 am - 4:00 pm

Centre on Housing R ights Evictions COHRE – Sri Lanka 106 1/1 Horton Place Colombo 7 Sri Lanka.

Tel: +94.11.2693143, +94.11.4852105 Fax: +94.11.2693143 Email: srilanka@cohre.org

www.cohre.org/srilanka

Housing Rights for Everyone, Everywhere...