Housing rights expert warns of global tenure insecurity crisis

The threat of eviction or displacement facing millions around the world is undermining the right to adequate housing, according to a UN rights monitor who advocates grounding security of tenure in a human rights framework rather than a narrow property rights regime.

by Kanaga Raja

GENEVA: “We are in the grip of a global tenure insecurity crisis,” the United Nations Special Rapporteur on adequate housing Raquel Rolnik warned in her report to the 22nd session of the UN Human Rights Council.

In her report (A/HRC/22/46), the rights expert said: “Access to secure housing and land is a prerequisite for human dignity and an adequate standard of living, yet many millions of people live under the daily threat of eviction, or in an ambiguous situation where their tenure status can be challenged by authorities or private actors at any time.”

Elaborating on the concept of security of tenure as a component of the right to adequate housing, the Special Rapporteur said: “The backdrop is one of a global tenure insecurity crisis, manifesting itself in many forms and contexts – forced evictions, displacement resulting from development, natural disasters and conflicts and  land grabbing – and evident in the millions of urban dwellers living under insecure tenure arrangements.”

Rolnik cited the Centre on Housing Rights and Evictions as estimating that between 1998 and 2008, forced evictions affected over 18 million people. The adverse impacts of forced eviction are massive, increasing poverty and destroying communities, leaving millions in extremely vulnerable situations, she added.

Many others are displaced due to development projects. According to one estimate, in the 2000s, such development projects affected 15 million people annually. Preparations for mega-events are further sources of insecurity and forced evictions.

Conflicts and natural disasters, including those exacerbated by climate change, also trigger displacement and can undermine security of tenure. Over 26 million people were internally displaced at the end of 2011 due to armed conflicts, violence or human rights violations, while nearly 15 million were displaced due to natural hazards.

According to the report, the political economy of land deeply influences processes of development, urbanization and housing. Land speculation, as well as large-scale acquisition of land in rural areas – often non-transparent and managed poorly – undermine tenure rights and local livelihoods.

Coupled with drought and other climate-related changes, such activities are major drivers of migration to cities, where adequate land and housing is often not available to newcomers, especially the poor.

“As a result, people settle in housing and settlements with insecure tenure arrangements. Unplanned and exclusionary urbanization has obvious impacts on tenure security.”

Tenure insecurity is a global phenomenon, the Special Rapporteur said, noting however that “assessing the nature and scale of the problem is fraught with difficulties of definition as well as measurement, and precise data is not available.”

Self-made and unplanned settlements, with precarious housing conditions, epitomize tenure insecurity in a very visible form. In many cities they now represent the largest single channel of land and housing supply for the majority of the population.

One UN-Habitat (UN Settlements Programme) study estimated that 924 million people were living in slums in 2001; an estimate for 2010 placed the number at about 828 million. However, by 2010, tenure security was not taken into account in the UN-Habitat measurements of slums, hence the latter figure offers only a very small insight into the current extent of tenure insecurity in urban areas.

Similarly, the revised indicator for the Millennium Development Goal target of improving the lives of 100 million slum dwellers does not include security of tenure. While this particular target was reached, the question remains as to whether this result reflects the real situation of slums and informal settlements worldwide, said Rolnik.

“Developing effective ways to measure tenure (in)security is an urgent imperative, including for the Millennium Development Goals and the United Nations development agenda beyond 2015,” she stressed.

She explained that insecure tenure arguably annuls all other aspects of adequate housing – what is the point of having a well-insulated, affordable, culturally appropriate home, to cite only some aspects of adequate housing, if one is under daily threat of eviction?

At the same time, any housing initiative, whether in the context of urban renewal, land management or development-related projects, or in dealing with reconstruction needs after conflicts or disasters, will inevitably have tenure security implications.

Conversely, when access to secure housing or land is provided, the potential for social and economic progress is immense – a fact recognized globally.

Key component

According to the Special Rapporteur, security of tenure is recognized as a key component of the right to adequate housing under international human rights law. In its general comment No. 4 (1991) on the right to adequate housing, the UN Committee on Economic, Social and Cultural Rights identified “legal security of tenure” as one of seven elements of the right to adequate housing [paragraph 8 (a)].

The Committee stressed that “notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups”.

The obligation to confer legal tenure security is due to everyone, irrespective of the type of tenure held. The Committee on Economic, Social and Cultural Rights notes that states should take immediate measures aimed at conferring security of tenure. This language, on its face, articulates an immediate obligation to ensure a minimum degree of tenure security to all (to prevent forced evictions).

States are also called upon to confer security of tenure to all those who lack it. This seems to imply that one focus of state action should be on the most disadvantaged and insecure. An examination of the authoritative guidance of UN mechanisms confirms that states must secure tenure particularly for the most disadvantaged and marginalized, such as low-income groups, informal settlers and minorities.

According to the report, national and regional case law offers similar guidance. For instance, the Supreme Court of India has called upon the state to provide some security of tenure to marginalized groups, such as pavement dwellers, and the South African Constitutional Court and the European Court of Human Rights have addressed security of tenure and protection against eviction for the urban poor and inhabitants of informal settlements.

“There is no doubt that forced eviction constitutes a gross violation of a wide range of internationally recognized human rights. Providing protection against such practices is thus a core function of security of tenure,” Rolnik said.

She said that her analysis demonstrates that a number of issues require further clarification under international human rights law. Treaty bodies, starting with the Committee on Economic, Social and Cultural Rights, have a particularly important role to play in efforts to provide more precise and comprehensive guidance with respect to security of tenure. National courts, aided by the use of strategic litigation, could provide another avenue to clarify aspects of security of tenure beyond preventing or seeking redress for forced evictions.

“At a more fundamental level, the above issues may require a paradigm shift away from correlating security of tenure with a property rights regime and towards the grounding of security of tenure solidly in the human rights framework. Related to this is the need to protect the right to adequate housing when it comes into conflict with the right to property.”

While the full elaboration of the scope of “security of tenure” as recognized in the framework of international human rights law presents a range of challenges that have yet to be adequately met, the Special Rapporteur nonetheless underscored that security of tenure should be understood as encompassing, at a minimum: (a) legal protection from forced eviction, harassment or other threats; (b) recognition – legally, by authorities, but also by private actors – of the right to live in a secure place in peace and dignity; this recognition includes receiving support from authorities and equal access to and availability of all public services; (c) justiciability – in other words, security of tenure must be enforceable; to make this criterion truly effective may require the provision of legal aid to facilitate access to effective remedies; and (d) any other aspect required as a step towards the enjoyment of other components of the right to adequate housing, on an equal basis with others.

Planning policies

In addition to gaps in existing human rights guidance, the rights expert noted a number of challenges at the operational and policy level in a number of sectors bearing upon the security of tenure, namely, land governance, land management and administration, the role of public land, and urban planning (policies, laws and regulations).

She said that planning rules that often disregard cultural specificities and are based solely on the housing products offered to the upper classes or dominant groups, coupled with rigid and costly regulatory frameworks for how land and housing should be developed, often fail to meet the needs of the poor or of marginalized groups, putting formalization out of their reach and rendering them or their homes de facto illegal.

“Non-compliance with planning laws thus becomes a common justification for the evictions of long-established communities, often minorities or informal settlers. This has been the case in Israel, whereby non-issuance of construction permits often leads to irregular construction and, in some cases, to eviction and demolition orders to the detriment of minorities.”

The Special Rapporteur however drew attention to what she said are some innovative planning regulations that exist to secure tenure for the most marginalized.

A significant example is the Brazilian “Special Zones of Social Interest” (ZEIS). ZEIS is a planning instrument, based on the constitutional recognition of the social function of property, regulating the use and occupation, for social housing purposes, of public or private properties. It is used to recognize existing informal settlements as well as to define unoccupied areas of the city as areas for social housing.

Regulations on “inclusionary zoning”, which provide that any new city development must include “mixed types of housing”, including a minimum percentage for social housing, are another positive example. Several cities in Canada and the United States have adopted such measures, while they are also envisaged in planning legislations in Colombia, France and the United Kingdom.

Recognizing tenure rights

The Special Rapporteur noted that development actors and governments are increasingly moving towards more flexible and expansive ways of recording and recognizing tenure forms and tenure rights. Tools and approaches are being developed and implemented to that end. They often build upon existing practices or rights, and involve communities (such as participatory mapping).

There are also legal instruments to recognize or regularize tenure rights, such as “adverse possession” in common law systems or the similar concept of “usucapiao” in Brazil.

Rolnik however said that questions remain as to the minimum conditions that these approaches should fulfil to ensure security of tenure, what type of institutional arrangements are required for implementation, and whether such approaches can be replicated in diverse contexts and at scale. This is particularly relevant to those forms of tenure that have received less attention and support in research, policy and practice, such as community land trusts, collective tenure models and cooperative ownership.

She summarized that while human rights mechanisms and courts at national, regional and international levels have primarily focused on forced evictions, policies and practices pertaining to land tenure have taken a fully different approach, with an emphasis at the start on securing tenure through land titling programmes, based on the granting of property rights. The past decade has seen some developments towards more flexible and encompassing approaches to recognize and protect various forms of tenure.

“This evolution, from a narrow focus on property rights towards a more expansive recognition of diverse forms of tenure and rights – while still uneven and incomplete – is significant. There is a risk in relying on property rights as the means by which to best secure tenure. Rather, security of tenure should be clearly articulated and grounded in the international human rights framework and expressed in a variety of tenure forms.”

An obvious need, confirmed by consultations with a wide range of stakeholders, is for more specific and comprehensive human rights guidance on security of tenure. Existing legal and policy guidance is incomplete and sparse. Many questions remain as to the precise state obligations with respect to conferring legal security of tenure, and the scope and content of security of tenure under international human rights law.

“Much work remains to be done to harmonize law with practice – both fields have much to learn from each other. The ultimate objective is to ensure that legislation and a wide range of practices and policies are available and effective to recognize, record and protect all forms of tenure that are legitimate under international human rights law, on par with one another, and protect holders of those tenure rights equally,” Rolnik concluded. (SUNS7526)   

  Third World Economics, Issue No. 539, 16-28 Feb 2013, pp 4-6, 16