COR Point 47 Right to Housing (ICESCR Article 11)

188. Paragraphs 189-193 report the situation regarding informal settlements in Taiwan, including the Huaguang and Shaoxing communities mentioned in Point 47 of the Concluding Observations and Recommendations after the first State report as well as discussion of informal settlements which rent public National Land.

Basic facts on informal settlements in Taiwan

189. In recent years, under fiscal difficulties, governments often resort to the sale of public lands to secure needed revenues, so the informal settlements on the lands become the target of large-scale evictions. Due to the flood of refugees from China to Taiwan in the wake of World War II and the Chinese civil war as well as the rapid rise of the number of rural-urban immigrants in the wake of Taiwan’s economic take-off in the 1960s, informal settlements formed on public lands. The residents in these informal settlements live in a mostly crowded and deteriorated environment and have a high proportion of physically or mentally disabled, elderly or economically disadvantaged persons. Based on official and probably under-estimated data, there were 37,794 buildings dating from before 1963 in informal settlements as of August 2015,⁸⁷ not including indigenous peoples communities in urban areas. As of September 2015, there were still 6,562 such buildings (with 10,994 households) in Taipei City.⁸⁸ In March 2013, shortly after the review of the first State report, then Premier Jiang Yi-huah publically rejected the Concluding Recommendations and stated that the right to housing for people living in such housing was not guaranteed since they did not have property rights⁸⁹ and stated that the government would that same month demolish the Huaguang community which was mentioned in Number 47 of the Concluding Observations and Recommendations. In the follow-up discussions on the Concluding Observations and Recommendations on June 27, 2013, members of the Presidential Office Human Rights Consultative Committee called on related government agencies to hold administrative hearings to re-examine laws and policies that led to the eviction of residents in informal settlements, but such hearings have yet to be held.⁹⁰

Informal settlements lack guarantees for rights

190. At present, informal settlements still lack security of tenure in Taiwan’s domestic law. Court judgments at most only recognize property rights and are not concerned with the rights to housing of the residents, a stance which is tantamount to endorsement by the courts of the eviction notices. Therefore, after the eviction of the residents of the Huaguang community, the related government agencies and the courts absolutely refused to grant administrative or judicial remedies based on the right to housing mandated in the international covenants (see Paragraphs 29-33 above). In the case of the Shaoxing community, executive agencies did not engage in any genuine consultations with residents in accordance with the obligation to find alternative solutions as the “right to housing” of the residents was not recognized by domestic law and the logic of the existing Civil Code and administrative regulations is to place respect for property rights above all other considerations. Even though the land management agency (National Taiwan University) is holding informal discussions on remedial plans with residents, this channel may collapse at any time and then the residents will be deprived of all feasible paths for legal remedy.

Informal settlements on leased public property

191. With regard to informal settlements for which the State had concluded lease agreements, based on the leases for public property, the leasing agency can retract the leased property and terminate the lease agreement in cases of urban land consolidation, or urban plans, etc. and the renters cannot demand any compensation from the leasing agency. Such a lease agreement is unfair to residents. Residents who have not leased land are seen as illegally occupying public property, while those who have rental agreements do not know from one day to the next when their agreement may suddenly be terminated and they may face forced eviction. This state of affairs obviously infringes on the right to housing.

Huaguang Community

192. The Huaguang Community comprised about 600 households, mostly refugees from the Chinese Civil War and urban immigrants, occupying an area of 4.9 hectares in the Daan District of Taipei City. Beginning in 2007,⁹¹ residents began to receive notices of the demolishment of the houses and demands to return “unjust enrichment.” Even though the Experts expressed concern over this case in the January 2013 review of the first State Report, the community was nonetheless razed and all the residents evicted in August of the same year and left without fixed residences.⁹² Moreover, they also continued to bear heavy economic and psychological burdens due to official measures to return “unjust enrichment,” including the freezing of their bank accounts and deductions from wages or salaries. In July 2014, the Huaguang Community cited the two covenants in an administrative law suit filed against the Taipei City government, the Ministry of Justice, the National Property Administration of the Ministry of Finance and the Ministry of the Interior. However, the suit was dismissed by the Taipei High Administrative Court on November 19, 2014.⁹³

Shaoxing Community

193. The Shaoxing Community is located in Taipei City’s Zhongzheng District on public land administered by National Taiwan University. As in the case of Huaguang, most of the community’s population of approximately 100 households are post-war or urban migrants. In 2001, NTU filed suit to demolish the houses and regain the land and “unjust enrichment.” After years of resistance, NTU finally agreed to hold consultations with residents on alternative settlement plans. However, due to the inadequacies of the legal system, the current consultations are entirely informal and residents can depend only on NTU’s arbitrary goodwill and have no legal channels or rights to ensure that they can secure adequate housing. In other words, the possibility that Shaoxing Community residents may be forcibly evicted in the future cannot be excluded.

Airport Mass Rapid Transit (AMRT) A7 Station Development Project

194. With regard to the “pre-auction sale” system⁹⁴, and the concern expressed by the Experts that “the tenants were not meaningfully consulted prior to the sale of their properties to the construction companies,” the State is unwilling to acknowledge that this policy was wrong or that any officials should bear responsibility. In other words, just as pointed out by the Experts, the subsequent planning for the Airport MRT A7 Station expropriation case will remove the original residents to slope land which is near cemeteries and difficult to use and through an excessively drawn-out process which will render them unable to return to their homes. Although the officials who were bribed in this development project are under investigation, the project itself is still going forward.⁹⁵

The community sovereignty of urban indigenous peoples and the right to housing

195. Indigenous peoples’ districts have faced chronic unequal distribution of national development resources for a long time. Consequently, large numbers of indigenous people have migrated to urban areas in order to search for employment opportunities or satisfy needs for education, medical care and other vital functions. As of May 31, 2016, 253,745 indigenous persons, or 46.2% of Taiwan’s total indigenous population, were registered as living in urban areas and this figure continues to rise.⁹⁶ Nevertheless, most of the indigenous people who have migrated to urban areas during the past few decades are engaged in low-skilled and high-risk manual labour occupations and do not find it easy to obtain adequate residential environments. The residential situations for urban indigenous peoples can be roughly divided into urban indigenous communities which have created their own settlements and indigenous households which are scattered throughout urban areas. Regardless of which type, all face common difficulties of disadvantageous economic conditions, insufficient social expenditure systems and neglect of ethnic subjectivity and identity.

196. Based on economic factors and cultural habits, some urban indigenous people choose to build self-help housing in locations which have environments similar to their original homes and form urban communities with indigenous people as the main body of residents. These communities are informal settlements and most of their members are indigenous labourers who have worked in urban areas for the medium-or-long term. However, since the protection they receive from labour laws is insufficient and they are also detachment from the protections of their original social safety system, these indigenous people can only depend on the culture of mutual help in the community to compensate for the overall lack of social security.⁹⁷ However, the government lacks appreciation for the collective character and social functions of this kind of indigenous community and official agencies often arbitrarily carry out their own evictions based on a single administrative order.⁹⁸

197. When urban indigenous communities suffer eviction, indigenous peoples administrative agencies in central and local governments alike often only refer the resulting problems to social welfare agencies which provide social welfare services based on individual status.⁹⁹ In the wake of resistance by indigenous communities, local governments at most promote social housing policies and thus mistakenly oversimplify the problem into a question of housing.¹⁰⁰ Such methods risk depriving disadvantaged or elderly indigenous persons who depend on the mutual support within the community of their basic guarantees of survival since certification of individual status becomes a question of exclusion and divides the indigenous community.

198. Ultimately, “tribal community residence” is the foundation of “tribal sovereignty” since such settlements are formed based on the character of indigenous peoples’ culture differently from other clusters of buildings and are therefore called “villages.” Indigenous villages have cultural rights, educational rights, political rights and economic rights which can only be maintained through “group residency.” However, existing cultural institutions, educational systems, local political systems and capitalist economic systems are unable to appreciate or support the significance and meaning of village sovereignty and even infringe on indigenous peoples and village rights.¹⁰¹ The government’s use of policy tools such as “resettlement subsidies,” “settlement guidance” or “illegal housing demolition” as means to solve the “problem” of urban indigenous villages or settlements again and again manifests the government does not realize that the uniqueness of urban indigenous villages is also the essence of villages as “village sovereignty.” Therefore, the government over-simplifies the problems faced by urban indigenous villages in community care, cultural inheritance and resident autonomy as issues of housing.

199. Urban indigenous villages still face severe challenges even if the right to housing is guaranteed. For example, in the summer of 2015, the Shijou Community in New Taipei City suffered damage due to severe floods caused by the onslaught of a typhoon. In the process of reconstruction, the community relied heavily on assistance from private capital, while government agencies did not provide any related assistance measures for indigenous residents who were anxiously waiting for the completion of construction of social housing. In December 2015, there was even an incident in which the New Taipei City government attempted to uproot the village garden that exposed the contempt with which government agencies look upon informal settlements.

200. In addition, urban indigenous villages lack far behind the living standards of ordinary people in terms of the right for water. The Shijou Community in New Taipei City or the Kanjinniyaro and Sa'owac villages in Taoyuan City and over 10 other urban indigenous villages lack facilities for clean running water or even are the recipients of pollution from urban economic development and industrial needs. Neither the central or local governments have provided any assistance to resolve these problems, which are set aside “due to the limitations of existing laws.”¹⁰²

201. To summarize, we recommend:

     1. The CIP should take the initiative to investigate and clearly explain the difference between the collective sovereignty of urban indigenous communities and the right to housing enjoyed by individuals to avoid the oversimplification of the problems of urban indigenous communities into merely issues of the residence of individuals or social welfare subsidies. The CIP should also provide needed policy assistance to urban indigenous communities.

     2. Central and local government agencies should work together to bolster protections for the right to housing and right to access to water of urban indigenous communities. Such agencies must incorporate related policies in normal legal procedures and allow residents to have substantive participation and actual influence in government policy making and in the recommendation of revisions for related laws in order to realize good living environments for urban indigenous communities.

87. See Monthly Bulletin of Statistics, Construction and Planning Agency, Ministry of Interior, August 2015.
88. Statistics on the situation regarding old buildings constructed without licenses, Taipei City Construction Management Office, September 2015. See: Loa Iok-sin, “Jiang gets flak for housing rights comments,” Taipei Times, March 21, 2013.
89. Presidential Office Human Rights Consultative Committee, “Records of the First and Second Round of Meetings to Respond to the Concluding Observations and Recommendations” and “Follow-up on the Actions taken by Competent Agencies,” June 27, 2013.
90. See “MOJ under attack for brutal treatment of its own people,” China Post, December 24, 2007.
91. Five Huaguang Community residents who resisted the demolitions in April 2013 were arrested and convicted for obstructing police officers. See Jason Pan, “Huaguang Community Five see verdicts upheld,” Taipei Times, June 16, 2016.
92. Hung Hsing-cheng, “Huaguang Community Demolished; Residents Lose Suit against National Property Administration,” Storm Media (in Chinese), November 19, 2014.
93. “Pre-auction sale” is a system under which developer designated by the government can begin to use an auction-method to sell residential or industrial-use land to investors before the actual completion of the zone expropriation process. This system has no legal foundation. See Lee I-chia, “EPA gives green light for projects,” Taipei Times, January 28, 2014.
94. See Chang Wen-chuan and Jake Chung, “Yeh Shi-wen’s corruption trial closes,” Taipei Times, February 3, 2015.
95. See Chart 6 at the webpage on “Statistics Regarding Indigenous Peoples Population” (in Chinese) at the Council for Indigenous Peoples portal.
96. In Points 47-49 of the Concluding Observations and Recommendations for the first State report and subsequent follow-up discussions, the Council for Indigenous People had the following response to the question of unlicensed settlements of indigenous people: “Our council has already collated basic data on illegally built indigenous communities and found that there are 20 such communities in six cities and counties with about 2,041 persons in 618 households. The above-mentioned communities all belong to the self-governance responsibility of local governments. However, our council will in principle actively assist local governments administer guidance and resettlement subsidies for indigenous settlements.” The reference to these communities as “indigenous unlicensed settlements” indicates and that they are seen as “illegal buildings” and that their demolition is necessary. The formation of these illegal buildings encompasses factors such as “the situation for ownership rights for land upon which they are built,” “the building construction violates related laws and regulations on construction methods” and “the construction of these structures was not licensed through the legal application procedures.” Once these structures are defined as “illegal,” they become matters for “building regulation” and thus come under the authority of local governments.
97. However, in most cases the land actually belongs to rivers, coasts and protective forests that are public lands. Moreover, what is called a “village” is not simply a group of buildings as the basic essence of the villages is a clustering of indigenous peoples culture. Therefore, the CIP should take further steps to assist in clarification of the special character of the formation of these groups of buildings and help other ministries and agencies understand the cultural factors underlying the formation of indigenous peoples communities and avoid having to relegate itself to only providing “settlement guidance” and “resettlement subsidies” in the wake of the demolition of informal indigenous settlements.
98. Central government agencies including the National Property Administration of the Ministry of Finance and the Water Resources Agency of the Ministry of Economic Affairs and water supply departments, construction management departments, tourism bureaus or environmental protection bureaus of local governments can on their own authority mobilize police to carry out evictions of “illegally built” communities.
99. Not all members of indigenous communities have identification status as indigenous persons and some of them may include family members who do not have such identification and residents who are not indigenous persons but are organized into joint organizations. Social welfare systems which provide service based on the type of status of individuals frequently exclude community members who do not have status as indigenous persons and thus neglect the integrated nature of the community and its members and therefore generate divisions within the community.
100. During the past few years in New Taipei City, social housing policies have been promoted focussed on Shijhou Village and Sanying Village. Indigenous communities which did not show strong resistence were often ignored. These housing projects squeezed out the basic human rights of elderly residents who were excluded from the projects because they could not pay the down payment on the housing loans and thus became even more isolated.
101. For example, in the Sa'owac Village of Amis Tribe located in the Dahan River Area in Taoyuan City, the village’s community cultural sovereignty has always been ignored by agencies under the Water Resources Administration of the MOEA. Despite the requirement in administrative procedures, WRA construction agencies deliberately neglected to hold any explanatory meetings to the village. Only when the construction budget was allocated and a public tender issued and work on the project was about to begin did they directly issue an official notification for the razing of the village. In 2009, without giving the community any advance notification, the Taoyuan County government directly sent excavators to uproot and demolish peas and other vegetable gardens that were just about to be harvested on the pretext of broadening a water conservancy canal.
102. See Sawmah, “Struggling for a drink of water; an urban peripheral village’s war for water,” The Reporter, February 18, 2016 (in Chinese).