Written By NAFSO on Monday, December 11, 2017 | 10:07:00 PM
The International Tribunal on Evictions has considered proven violations of human rights, urges authorities to stop evictions and to return land to displaced people immediately, and calls for the military to get out and cease commercial activities.
The Jury of the 6th Session of the International Tribunal on Evictions (ITE), held in Venice, Italy, from 28 to 30 September 2017, listened for two days to the testimonies, reports and recommendations of inhabitants and communities from 5 continents who are affected by evictions and human rights violations caused by abusive tourism development. The 6th Session of the ITE marks the beginning of World Zero Evictions Days, a global convergence of local initiatives for the right to housing that will take place throughout October 2017.
The Tribunal opened with an inaugural message from Leilani Farha, the UN Special Rapporteur on the Right to Adequate Housing. She underlined the relevance and the legal obligations of states to comply in particular with Article 11: International Covenant Economic Social and Cultural Rights and confirmed her acknowledgment of and support for the International Tribunal on Evictions.
Special attention was given to the case of Panaama village, Sri Lanka, where 1,400 people were violently evicted in 2010. On their lands, the Sri Lankan Navy built a hotel, the Malima Lagoone Cabanas, while the Air Force is building the International Relations Centre. The villagers, peasants and fishermen who were evicted are struggling to recover the confiscated land, but so far they have not obtained justice.
The ITE Jury, composed of concerned experts and representatives from international and local organisations specialising in human rights and tourism, has proven the evidence that tourism development that puts profits before local communities and their well-being, leads to violations of national laws and human rights legally recognized by the countries that have ratified the International Covenants. Analysis of the cases shows that the loss of local residents’ shelter, housing and land, as well as loss of access to resources upon which their livelihood depends upon, triggers additional human right violations.
The case of Panaama Village highlights a clear lack of Free, Prior and Informed Consent and meaningful consultation of the local community with regards to tourism development and land right issues resulting in violations of national and international regulations.
In light of that, the 6th Session of International Tribunal on Evictions has issued preliminary general Recommendations and specific Recommendations related to the Sri Lanka Case.
The ITE is committed to implementing these Recommendations, through the mobilisation of social organisations and international networks, involving the UN System, and carrying out monitoring in March and October 2018.
Recommendations to National / Local Authorities
Recommendations to Tourism Businesses and Investors
Legal Background supporting Evidences of Violations of Human Rights
We urge the Divisional Secretariat of Lahugala, District Secretary of Ampara and the Land Commissioner General’s Department to implement the Cabinet decision of 11 February 2015 and allow them unrestricted access to their land and marine resources. Furthermore we demand to fairly compensate the communities for the 25 acres that the constructions have already being done.
We urge the Government to follow the recommendation of the Sri Lanka Human Rights Commission (HRC) in complaint case number HRC/AM/105/10/b/OT] and order of the Magistrate’s Court of Pottuvil 8455/PC/09 by refraining from taking any steps to evict the people who have returned to their lands, refrain from preventing the people from returning to their land and to permit the people to return to their lands.
We urge the Government of Sri Lanka to compensate the communities in Paanama for the losses they experienced through the destruction of their houses, belonging and crops, by being forcibly evicted and cut off from their sources of livelihood, income and food over the period of more than 7 years and to assist the displaced families in restoring their livelihoods upon their return to their lands.
We urge the Government of Sri Lanka to reduce the military presence and order the military to cease violence against, surveillance, intimidation and harassment of the local population, activists, civil society, and journalists and to order the military to cease all commercial activities by dismantling military-run hotels.
We urge the national and local authorities to comply with the Human Rights framework, which the government of Sri Lanka ratified, and to implement the UNHRC Resolution 30/1 on “Promoting reconciliation, accountability and human rights in Sri Lanka”.
We urge the national government to enshrine housing and land rights as fundamental rights in the new constitution and to establish an independent land commission with a people friendly land policy in Sri Lanka.
While the Sri Lanka Tourism Strategy 2017-2020 emphasises communities’ role as a valuable workforce in tourism, the commitment to ensuring their free, prior and informed consent in tourism development, particularly when it affects their homes, land and resources, remains rather vague. It is high time to ensure that mechanisms for local community participation in tourism planning are enshrined in laws, public policies and are effectively enforced at local and national levels. Furthermore, structural barriers to the development of small and medium sized local tourism businesses and community-based tourism initiatives, such as complicated licensing systems and unfavourable tax schemes, must be addressed.
National and local authorities must keep communities informed regarding regional development plans, such as tourism development zones, respecting their right to information and allowing for their meaningful participation and consultation in the process of developing and implementation such regional strategies.
The Minister of Lands must ensure due process relating to the acquisition of private and state land by the state and by tourism businesses.
As a general principle, independent and mandatory environmental impact assessment as well as social and human rights impact assessments should be carried out in a participatory manner prior to any decision to acquire private land/use state land and to implement development projects.
The involuntary relocation of communities must be kept to an absolute minimum. If communities are involuntarily relocated to pave way for tourism development projects, we urge the government to follow the principles laid down in the National Involuntary Resettlement Policy, at not more than 10 minutes walking distance and in full respect of all their human rights.
Recommendations to Tourism Businesses and Investors
Malima Hospitality Services must compensate the evictees for land on which the hotel premises are built on and for the losses the community has experienced since its eviction in 2010.
We expect national and international tourism businesses to take the necessary due diligence measures in order to avoid human rights violations through their direct and indirect business activity along the supply chain in line with the UN Guiding Principles on Business and Human Rights.
Tour operators must be cognisant of the post-conflict situation in Sri Lanka, and pay special attention to the vulnerability of local communities and their land rights in their human right impact assessments. They must ensure that the hotels and resorts they work with are not built on illegally acquired land and that the local population has access to resources such as water and food, and that human rights are respected throughout all spheres of business activity and along the entire supply chain.
Investors must make sure that prior to the construction of hotels and tourism infrastructure the local population is consulted on an equal footing, has given its approval and that a binding agreement has been negotiated with the affected parties concerning mutual obligations.
Legal Background supporting Evidences of Violations of Human Rights
Article 11 (1) of International Covenant on Economic Social Cultural Rights (ICESCR), acceded by the Sri Lanka on 11 June 1980. Under Article 11 (1) ICESCR, all authorities, including local authorities, are therefore obliged to refrain from the practice of forced evictions, and to prevent third parties, including private companies, from carrying out forced evictions. The Commission on Human Rights has also indicated that "forced evictions are a gross violation of human rights"; the relocation can only be justified, as described in General Comments n. 4 and 7, under very exceptional circumstances, with the agreement and throughout meaningful consultation with all those affected and adequate compensation for the loss of homes and land.
Article 27 of the Convention on the Rights of the Child (CRC), ratified by Sri Lanka on 12 July 1991: “States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing and housing”;
Art. 14. 2 (h) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ratified by Sri Lanka on 05 Oct 1981: States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right:.. To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.
Art. 8-9 of Inquiry procedure under the Optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women, ratified by Sri Lanka on 5 October 2002
National Laws and Policies
Constitution of Sri Lanka
Article 12 (1) - All persons are equal before the law and are entitled to equal protection of the law.
Sri Lankan Courts have held that all arbitrary actions of the executive and administrative arms of Government violate the right to equality.
The Government has committee a number of arbitrary actions in evicting the Paanama community from their lands. See details below.
Article 12 (2) – No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.
Article 14 (1) (g) – Every citizen is entitled to the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise.
Article 14A – Every citizen shall have the right of access to any information as provided by law, being information that is required for the exercise or protection of a citizen’s right.
State Lands (Recovery of Possession) Act No. 7 of 1979
This Act provides for the recovery of possession of State lands to the government. Provisions of this law was not made use of in taking over the Paanama lands to the military.
Land Acquisition Act No. 9 of 1950
Provides for the acquisition of private lands by the Government. The procedure laid down in this Act should be applied in taking over State lands in respect of which permits or land grants have been given. However, this was not followed in taking over the lands in Paanama for which state land permits have been given.
National Involuntary Resettlement Policy (approved by the Cabinet in 2001)
Scope: Policy applies to all development induced land acquisitions or recovery of possession by the State. Requires a comprehensive Resettlement Action Plan where 20 or more families are affected.
Key principles: involuntary resettlement should be avoided or reduced as much as possible by reviewing alternatives to the project and alternatives within the project; if involuntary resettlement is unavoidable, affected people should be assisted to re-establish themselves, affected persons to be fully involved in the selection of relocation sites, livelihood compensation and development options; replacement land to be an option for compensation in case of loss of land; compensation for loss of land and other assets and income.
Judicial Pronouncements by national judicial and quasi-judicial bodies
Court of Appeal Case No. CA 352/2016
Even after the Cabinet decision was taken to return the lands to the community, Government served Quit Notices on the community and filed action in the Magistrate’s Court to evict them. This case was filed by the community members seeking Writs of Certiorari to quash the decision of the Government to serve Quit Notices and file action to evict them. The Petitioners also sought a Writ of Mandamus compelling the Government to take steps to implement the Cabinet decision. Court of Appeal issued notices on the Government authorities and fixed the case for argument. Considering this step of the Court of Appeal, the Magistrate’s Court case was laid by until the final determination of the Court of Appeal case.
Magistrate’s Court of Pottuvil Case No. 8455/PC/09
Consequent to an application filed by the Police to prevent the community from entering their lands, the Pottuvil Magistrate’s Court initially made an interim order prohibiting the community from entering their lands. However, after hearing the submissions made on behalf of the community members, the Magistrate’s Court held that the right to life is one of the important rights and that no law will permit the refusal of this right. Court refused to extend the interim order and permitted the community to enter the lands.
Human Rights Commission Complaint No. HRC/AM/105/10/B/OT
The Human Rights Commission arrived at the conclusion officers of the Sri Lanka Police attached to the Pottuvil Police Station wrongfully and unlawfully, without any legal authority had prevented the villagers from returning to their homes which were destroyed by the unidentified armed gang in October 2010. The Human Rights Commission recommended that the Complainants be given land for cultivation or be granted compensation.
Cabinet Decision of 11.02.2015
Cabinet of Ministers decided to release the lands under the control of the Air Force in Paanama to landless people in the area except the land in extent of 25 acres in which buildings are constructed .
The International Alliance of Inhabitants
The IAI is a global network of grassroots associations of inhabitants, communities and social movements. It has been holding International Tribunals on Evictions since 2004. This year’s tribunal takes the "International Year of Sustainable Tourism for Development 2017" as an occasion to focus on tourism-related displacement and evictions. It is linked to the Transforming Tourism initiative that places tourism in the context of the 2030 Agenda. The tribunal also marks the opening of the World Zero Evictions Days which will happen throughout the month of October.