Going Down Kicking: Illegality of Forcible Evictions in Pre-World Cup Brazil

Gracie Willis, Associate Editor, Michigan Journal of International Law

Historical Context In June and July of 2014, millions of people will travel to Brazil for the 2014 FIFA World Cup.[1]  In preparation for this event and the 2016 Olympic Games in Rio de Janeiro, the Brazilian government has pumped billions of public and private dollars into a new infrastructure.[2]  Part of Brazil’s struggle to update key areas and develop a supportive infrastructure is to deal with the problem of favelas, or Brazilian slums.[3]   The municipal governments, in removing favela residents, purport to be assisting the residents, imparting that the slums are inappropriate and dangerous places to live.  Officials state that they are offering former residents dignity by offering them compensation packages for their homes.[4]  In reality, those who don’t accept the “pittance” offered for their self-built homes (often family homes spanning generations) are evicted anyway.[5]  The UN Special Rapporteur on the right to adequate housing, Raquel Rolnik, has stated that she is “concerned about the very limited compensation offered to the communities affected, which is even more striking given the increased value of real estate in locations where building is taking place for these events.  Insufficient compensation can result in homelessness and the formation of new informal settlements.”[6]  These practical consequences, coupled with international treaties to which Brazil is a party and international case law concerning the forceful eviction of Roma communities, support the conclusion that Brazilian municipal authorities are acting illegally.   International Treaties The right to a home is found in a number of international treaties, all to which Brazil is a party.  First, the International Covenant on Civil and Political Rights (ICCPR) states, in Article 17(1), that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”[7]  Article 17(2) of the same continues, “Everyone has the right to the protection of the law against such interference or attacks.”[8]  The United Nations Human Rights Committee General Comment 16 on Article 17 unpacks the element of “arbitrary and unlawful interference” and situates interpretation within the context, object, and purpose of the ICCPR.[9]  It determines that “unlawful” expresses that “no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.”[10]  The Committee envisions that through the notion of “arbitrariness,” unlawful activity “can also extend to interference provided for under the law . . . even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and . . . reasonable in the particular circumstances.”[11]  Thus, for a seizure of homes by a state mechanism to be in accordance with ICCPR Article 17, it must be lawful in that it is in compliance with the provisions, aims and objectives of the Covenant,[12] and must also be reasonable. Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) also recognizes an individual right to a home.  Article 11(1) ensures “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing . . . The States Parties will take appropriate steps to ensure the realization of this right.”[13] Additionally, the right is guaranteed by the European Convention on Human Rights, which does not govern Brazil, in Article 8, which states that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”[14]  Similar to the ICCPR requirements, the treaty follows, [t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[15]   Roma Community Forceful Eviction Case Law The European Court of Human Rights and UN Human Rights Committee have examined a similar issue in their treatments of Roma eviction cases.  These cases are informative in two main ways.  First, Roma, similarly to favela residents, are not seen as having a legal claim to the land on which they reside.[16]  Second, the fact pattern is similar in that the respective government entities attempting to carry out the evictions had tolerated the communities for a substantial period of history, only to determine suddenly that a state interest would be served with eviction, often against the backdrop of increased land development goals of the state.[17] The United Nations Human Rights Committee evaluated a forceful eviction of Roma in Naidenova et al v. Bulgaria using both the ICCPR Article 17 and ICESCR Article 11.  The Committee concluded that the unavailability of “immediate” alternative living arrangements was the crux of the illegality in cases of discriminatory removal or a community.[18]  The Committee went as far as to hold that “the State party is under an obligation to provide [the community] with an effective remedy, including refraining from evicting them from the . . . community so long as satisfactory replacement housing is not immediately available to them.”[19]  The court also articulated the standard for a “home” for the purposes of Article 17 of the Covenant “to be understood to indicate the place where a person resides or carries out his usual occupation.”[20] The European Court of Human Rights’ interpretation of the Committee’s General Comment Number 7 is informative, although the ECHR is not binding on Brazil.  The ECHR in Yordanova and Others v. Bulgaria summarized the UN Committee’s General Comment No. 7 instructions: that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions, such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, [utilizing] all available resources, to ensure the provision of adequate alternative housing.[21] ECHR also considered the European Convention of Human Rights Article 8.  It found that the government’s non-recognition of the Roma’s legal land rights did not affect the “independent fact” that the residences were to be considered “homes” for the purposes of application of Article 8 of the Convention.[22]  In finding that the enforcement of the eviction order would violate Article 8, the court considered the state interest in safe and sanitary housing conditions for citizens, followed by a consideration of whether the measures were “necessary.”[23]  It found that “the State’s legitimate interest in being able to control its property should come second to the applicant’s right to respect for his home.”[24]  It held that the evictions were unlawful, in part because the Government did not seriously explore “alternative methods of dealing with the risks.”[25]  The court noted that “an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases,” even though Article 8 does not require the state to provide housing to all citizens.[26] The language on “vulnerable individuals” comes directly from UN Committee’s General Comment No. 7, which specifically recognizes both ethnic discrimination and sporting-event-related forceful evictions.[27]  According to the General Comment, “[l]egal remedies or procedures should be provided to those who are affected by eviction orders. States parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected.”[28]  The Committee envisions an expansive set of procedural protections for those being forcefully evicted, including “an opportunity for genuine consultation” and “provision of legal remedies.”[29]   Conclusion In Brazil, many forced evictions occur without the provision of alternative remedies or adequate compensation.  One long-time resident stated, “[t]he city never came in here to help us, to check on our health, our sanitation. But when it was time to destroy, they came in and robbed us.”[30]  Amnesty International has received reports that those who do not accept the compensation package are forced out anyway.[31]  While government officials have said that they are “following legal requirements to give notice of evictions, offer alternative housing, and pay fair rates for properties,” they often do not compensate residents due to the officials’ perception of the communities’ illegality.[32]  The Special Rapporteur of the UN Human Rights Counsel on the right to adequate housing has expressed concern that adequate compensation is not being provided.[33] Evaluated under any of the above rubrics, at least some of the forceful evictions taking place in the favelas of Brazil are unlawful as a matter of international law.  Under ICCPR Article 17, the forced evictions are not in line with the purpose of the Covenant in as much as they lead to the possibility of homelessness.  Regardless of the government’s perception of whether the individuals in the community have a legal claim to the land, when the government has acquiesced to their presence for a significant amount of time and residents are forcefully evicted without being provided with immediate alternatives, the eviction is potentially unlawful.  Inasmuch as evictions of families in favelas make them more vulnerable, those evictions are against the provisions of ICESCR.  Under the Yordanova standard, a forceful removal must only be conducted if necessary, and if other alternatives have been meaningfully explored.[34]  While there have been attempts to rehabilitated favelas in the past, the contemporaneousness with the upcoming World Cup and razing of structures in favor of an infrastructure that does not serve the community it is uprooting signifies that the evictions are not in line with an end that promotes public health and safety for the residents of the favelas.[35]  Under a broad range of international treaties and case law, the municipal governments of Brazil carrying out these forceful evictions have a duty to bring their actions into line with international standards on evictions.