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close this bookHabitat Debate - Vol. 5 - No. 3 - 1999 - Security of Tenure (HABITAT, 1999, 63 p.)
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TOWARDS SECURING TENURE FOR ALL

by William Cobbett

The adoption of the Habitat Agenda in Istanbul in June 1996 marked a watershed in the history of the United Nations. The Global Plan of Action, through which the Habitat Agenda was to be implemented, promised a new energy and initiative on behalf of the world’s poor, particularly the urban poor. Habitat II reinforced the need for partnerships, made them less threatening, and served to emphasize the importance of the “local” in finding solutions.

With Istanbul +51 in 2001 looming large, there is far too little to show for all of the promise of Habitat II. Recent United Nations estimates indicate that 1.3 billion people still do not have access to clean water, and the same number live on less than US$1 a day.2

This concentration of poverty, homelessness and slums is increasingly associated with the growth of the world’s urban population. While the world’s overall population doubled over the past 40 years, it increased fivefold in urban areas. Indeed, 80 per cent of the world’s population growth in this decade has occurred in urban areas.

In most instances, the proliferation of informal settlements and slums arises from a combination of the poverty of the inhabitants, a deficient national policy framework, and the weak, inefficient and often corrupt systems of urban governance within which they find themselves. Informal settlements exist and expand because of the inadequate provision of land, a tendency towards over-regulation, and an administrative and institutional framework that is, at best, indifferent and - more likely - hostile to the needs of the urban poor.

The United Nations Centre for Human Settlements (Habitat) will be addressing these issues through its Global Campaign for Secure Tenure, which, if successful, will lead to an improvement in shelter strategies for the urban poor, and will directly and indirectly contribute to creating a climate for improved urban governance.

The Campaign will also unambiguously promote the centrality of the role of women. This will be done in the context of the high correlation between the active empowerment and involvement of women, and successful strategies to provide shelter and reduce poverty, and also as part of the United Nations’ commitment to programmatically address the empowerment of women.

Why Secure Tenure?

While the issue of secure tenure3 is but one of a set of components that contribute to a successful shelter strategy, it has been consciously identified because it has a catalytic effect; it invariably leads to other processes and issues vital to sustainable shelter delivery and upgrading. Countless examples reveal that when people are given security of tenure, they tend to invest in the improvement of their homes and neighbourhoods. The focus of this Campaign is unambiguously aimed at promoting a set of policies and strategies that will directly benefit the urban poor throughout the world, and it is against this goal that the Campaign must be measured.

The existence of widespread conditions of insecure tenure around the world, concentrated on the urban poor, prevents governments from meeting their commitment to enable the provision of “Adequate Shelter for All”. Shelter policies simply will not work properly without the long-term certainty provided by secure tenure.

In particular, the following consequences arise:

Inhibits investment in housing
Hinders good governance
Promotes social exclusion
Undermines long-term planning
Distorts prices of land and services
Reinforces poverty and social exclusion
Impacts most negatively on women and children

Insecure Tenure:


Homeless pavement dwellers in Mumbai (Bombay), India. ©United Nations/J. P. Laffonte

The Campaign will not be promoting any one type of tenure in preference to others, but will rather focus on the essential conditions that have to be met to ensure security of tenure, and on highlighting the benefits that accrue to the individual, the household and society from the granting of such security.

It must be re-emphasized that the Campaign, in and of itself, will not provide ready-made solutions, but rather will create the environment for the right issues to be raised. The Campaign will be successful to the extent that Habitat and its partners are able to deploy - in its wake - a targeted work plan that provides appropriate assistance in the essential elements of a successful shelter strategy.

There are elements and messages of the Campaign that, by definition, have to assume the status of universal standards or norms: they are, and must be, global. On the other hand, given the complexities associated with security of tenure, some of which have a cultural, religious or regional specificity, the Campaign must be designed to allow for and to encourage such expressions of regional difference. In short, the Campaign must be designed in such a manner as to reinforce necessary global norms, while allowing for the promotion of regional differentiations that are in conformity with such global standards.

The very concept of secure tenure, for example, will itself have to be defined and benchmarked so that it is measurable, and forms of tenure that are not secure may thus be identified. Such a definition must necessarily be seen as a universal norm, and may not be the subject of regional or national reinterpretation or negotiation. Such a standard can only be re-examined globally, and only through the mechanisms of the United Nations.

Conversely, if regions and countries choose different methods of implementing such a universal norm, but satisfy the basic universal requirements and principles as specified, then this cannot be challenged at the global level.

The Campaign should be seen as the start of a process through which Habitat will actively reach out and engage with its partners, and seek their expertise and inputs in establishing these global norms. Not only will this be an appropriate mechanism to popularise the Campaign, but it will also lead to the establishment of a consensus on some of the more problematic definitions and norms that will have to be established at the global level. The target for the Campaign would be to have these global definitions and norms endorsed at Istanbul+5 in 2001.

MILESTONES IN THE HISTORY OF INTERNATIONAL STANDARDS ON FORCED EVICTIONS

1976: The first United Nations Conference on Human Settlements in Vancouver, Canada, adopts the Vancouver Declaration on Human Settlements which notes that “major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made”. (Sec. III (8))

1988: The UN General Assembly adopts the Global Strategy for Shelter to the Year 2000 (GSS) which recognizes “the fundamental obligation (of governments) to protect and improve houses and neighbourhoods, rather than damage or destroy them”. (GA Resolution 43/181, Annex, Point 13)

1991: The UN Committee on Economic, Social and Cultural Rights, in its General Comment No. 4 on the Right to Adequate Housing, asserts that “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment or other threats”. (para. 8)

1992: The United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil, adopts Agenda 21, which states that “people should be protected by law against unfair eviction from their homes or land”. (Agenda 21, Chapter 7.9(b))

1993: The UN Commission on Human Rights states that “forced evictions are a gross violation of human rights”. (Commission on Human Rights Resolution 1993/77, para 1)

1996: The second United Nations Conference on Human Settlements (Habitat II) in Istanbul, Turkey, adopts the Habitat Agenda which commits governments to “protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; (and) when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided”. (Habitat Agenda, para. 40 (n))

1997: The UN Committee on Economic, Social and Cultural Rights adopts General Comment No. 7 on Forced Evictions, the most far-reaching international standard on forced evictions to emerge from the UN to date. General Comment No. 7 demands that States refrain from carrying out forced evictions, but goes further in stating that where evictions are considered to be justified, “the State parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with affected persons” and that “legal remedies or procedures should be provided to those who are affected by eviction orders”. (para. 14) It also notes that “evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights” and that “where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate housing, resettlement or access to productive land, as the case may be, is available.” (para. 17)

Compiled by Rasna Warah, Editor, Habitat Debate.

Elements of the Campaign

Promoting Housing Rights

The right to housing is part of the economic, social and cultural rights elaborated in the Universal Declaration of Human Rights (1948). However, until recently, they have not featured prominently in UN discourse. The approach that Habitat will promote in this Campaign will be to focus on the different components that constitute the body of housing rights. The launching of the Campaign for Secure Tenure should thus be seen as the first conscious step towards an International Convention on Housing Rights.

In building the case and political environment for the eventual adoption of a Convention, Habitat will focus on the essential elements of the right to housing, which has a number of components. The most prominent amongst these, and the one which the Campaign will prioritise, is the right not to be evicted without due legal process. Again, it is vital that the Campaign be seen as a vehicle for the United Nations to use its global position to provide support and cover for people facing daily abuse and threats to their human rights.

Fighting Forced Evictions

The United Nations human rights programme has devoted increasing attention to the negative practice of forced evictions in recent years. As the UN Commission on Human Rights has made explicit, a forced eviction “...constitutes a gross violation of human rights, in particular the right to adequate housing”.4 According to the Geneva-based Centre on Housing Rights and Evictions (COHRE), some 14 million people are currently threatened with forced evictions.5

The commitment of governments against forced evictions is explicitly stated in the Habitat Agenda6. Whereas forced evictions are mostly used to try and remove the poor from urban areas, the point that is often overlooked is that if the poor were to be offered a better alternative - without threats or coercion - then they would surely take it. Indeed, it is the perceived or real threat of forced eviction that does most to trap an area in slum conditions and a cycle of poverty, as any initiative and investment is inhibited by the threat.

The policy approach that will be advocated by Habitat, then, is to examine the route of choice and alternatives, rather than forced eviction.

Most forced evictions around the world have a number of general characteristics:

· Evictions tend to be most prevalent in countries or parts of cities with the worst housing conditions;

· It is always the poor that are evicted; wealthier classes virtually never face forced eviction, and never mass eviction;

· Forced evictions are often violent, and abuse a variety of human rights beyond the violation of the right to adequate housing;

· Evictees tend to end up worse off than before the eviction;

· Evictions invariably compound the problem they were ostensibly aimed at “solving”; and

· Forced evictions impact most negatively on women and children.

For these reasons, the issue of forced evictions will be the most visible and vibrant activity for the first period of the Campaign. It is an issue that the United Nations is uniquely placed to champion, and one which will have an immediate resonance in the different regions around the world. It is also the part of the Campaign that will be most unwelcome for a number of Member States.

The Campaign, while vigorously opposing forced evictions, will simultaneously promote the case for security of tenure to be enshrined in national laws and, where appropriate, in national Constitutions. In this regard, Habitat will offer assistance with the promotion of guidelines for such statutory recognition, including assisting with the drafting of model legislation and the promotion of examples of good policy and best practice.

In summary, it is most important that Habitat and its partners are seen to be promoting viable policy alternatives, and not just negatively campaigning against forced evictions. The promotion of legal and policy options must form an integral part of the Campaign and, more importantly, Habitat must be well placed to offer substantive technical and policy support through its operational activities.

Promoting sustainable shelter policies

The overriding case that Habitat will need to make to countries and cities around the world is the very real and tangible benefits that will accrue all round if a positive approach is adopted in respect of the urban poor. In close synergy with its other Global Campaign on Urban Governance, Habitat will be arguing that in addressing the needs of the urban poor, and in creating safer and sustainable cities, a policy of inclusion is a basic point of departure.

The conferring of secure tenure, and its legal recognition and protection, benefits not only those for whom the tenure is guaranteed, but has a whole range of positive social and even economic benefits. Internationally, it has been demonstrated that the conferring of secure tenure will release new avenues for investment and improvement by the residents themselves. Indeed, one of the very real advantages of tenure is that it can be conferred at relatively minimal cost to the fiscus, yet releases other, non-state, productive activity.


Forced evictions are often violent. ©UNCHS/P.Wambu

The granting of secure tenure does, however, also set in motion a whole train of logical consequences, which will need to be dealt with in the Habitat work programme. These are, for example, the need for efficient and reliable methods of recording land title, cadastral systems, as well as the administrative mechanisms and capacity to record and update property rights. Further downstream, issues of the provision of basic services arise, especially the provision of potable water and sanitation, as well as the essential institutional and technical elements required to support an affordable and practical shelter strategy. Planning policy, zoning, appropriate building standards and transport policy are all issues that will need to be addressed. These will constitute the policy and technical support that will be provided by Habitat and its partners.

“Since all human rights are to be treated equally, in an interdependent and indivisible manner, we should begin discussions on what could be called the right to security of place. This right exemplifies the convergence of civil and political rights and economic, social and cultural rights and places three forms of security into an indispensable human rights framework. Firstly, this right encapsulates the notion of security-protection of physical integrity, safety from harm, and guarantees that basic rights will be respected. Secondly, this right incorporates all dimensions of human security - or the economic and social side of the security dimension. While thirdly, the right to security of place recognizes the importance of tenure rights (for tenants, owners and those too poor to afford to rent or buy a home) and the critical right to be protected against any arbitrary or forced eviction from one’s home.”

Mary Robinson, UN High Commissioner for Human Rights, in her opening statement to an Expert Group Meeting on the Practical Aspects of the Human Right to Housing (Geneva, March 1999)

To offer the best possible support to Member States and to broaden the impact of the Campaign, Habitat will actively engage with other partners within the United Nations system. The recent launching of the Cities Alliance7 with the World Bank, provides an excellent linkage to promote the benefits of secure tenure, especially with respect to slum upgrading programmes. As another example, there are very obvious and quantifiable health costs and consequences associated with the unsatisfactory and unhygienic living conditions of hundreds of millions of urban dwellers.

In order to most effectively highlight the issue of secure tenure, and in order to achieve the maximum impact, Habitat will use the Campaign to put a global spotlight on the negative and regressive practice of forced evictions. In so doing, Habitat must ensure that it is always in a position to present policy alternatives, and to back these up with a sound and comprehensive range of operational activities and assistance.

William Cobbett, the Acting Head of the Shelter Branch at UNCHS (Habitat), is heading the Centre’s Global Campaign for Secure Tenure. He was Director-General of Housing in the Republic of South Africa from 1994 to 1997.

References

1 Special Session of the General Assembly for an Overall Review and Appraisal of the Implementation of the Habitat Agenda (June 2001)

2 UNDP Human Development Report 1999, New York, 1999.

3 UNCHS will promote security of tenure of both land and housing, including rental accomodation.

4 Commission on Human Rights Resolution 1993/77. Also, see Agenda 21 (Paras 7.6 and 7.9(b))

5 COHRE, Forced Evictions: Violations of Human Rights, Global Survey No.7, Geneva, 1998.

6 Habitat Agenda. Chapter III: Commitments. Section A: Adequate Shelter for All. Paragraph 40(n) commits governments to “protecting all people from and providing legal protection and redress for forced evictions that are contrary to the law.”

7 The joint UNCHS-World Bank Cities Alliance, launched in May 1999, is a multi-donor partnership to develop strategies to improve the living conditions of the urban poor and to upgrade slums and squatter settlements worldwide.