Global Report on Human Settlements 2007 - PoA-ISS

Security of tenure: Conditions and trends
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countries, cities and even neighbourhoods and streets, as
well as between and within households – ‘one-size-fits-all’
approaches to security of tenure will simply not work and
should not even be attempted. 71
Along with the recognition that it is within the informal
sector that solutions to the global tenure crisis will need
to be found, there is also a growing acceptance of the informal
city by most local and national governments. While some
governments – particularly those of an authoritarian or less
than democratic tilt – are willing to violate international
human rights norms and wantonly evict hundreds of
thousands of people in a single eviction operation, this
remains the exception to the rule. Of the 1 billion people
living in slums today (see Table 5.2), it is likely that well
under 1 per cent face forced eviction in a given year. This is
certainly 1 per cent too many; but this fact shows that
governments now generally accept the inevitability of the
informal city much more than ever before, in spite of (or,
perhaps, because of) the reality that these cities are beyond
the reach of the law in so many ways. In most instances, a
sense of benign neglect exists, sometimes side by side with
concrete and tested policies that actually succeed in providing
secure tenure and broader neighbourhood-wide
improvements; but often it is simply acceptance of the
inevitable, and the political consequences of choosing a
more active policy opposing these developments, that
dominates local government approaches to these
questions. 72
This begrudging acceptance of the informal or ‘illegal’
city, however, has almost invariably fallen short of what
would be considered an adequate response to the social and
economic conditions that lead to the emergence of such
communities. For if law is meant to be a reflection of the
society that it is designed to order and arrange, then legal
systems the world over are also falling far short of their
expectations. Legal systems cannot aspire to legitimacy if
they exclude the majority of their population:
… laws are unjust when the poverty of the
majority of people makes it impossible for them
to comply with them. If, for most urban citizens,
the basic tasks of daily life – building or renting
a shelter, earning an income, obtaining food and
water – are illegal, it would be wise for governments
to change the legislation or simply to
eliminate unrealistic laws. Urban legislation
should be more flexible in adapting to the great
variety of circumstance and the rate at which
these can change. 73
Governments can rather easily – for a variety of reasons,
most importantly the high political costs of forcibly evicting
entire neighbourhoods – allow the informal city to exist.
Responsible governments, however – who are actively
seeking to comply with human rights obligations – need to
do much more than simply accept that a growing portion of
their populations are forced by circumstance to find housing
options outside of the legally recognized realm.
Governments need to acknowledge that the poor choose
such options precisely because the legal housing sector does
not provide them with access and options that they can
afford, and which are located near employment and livelihood
options.
CONCLUDING REMARKS
As has been outlined in this chapter, the question of security
of tenure is by its very nature complex, diverse and often
comprised of unique attributes depending upon the particular
settings considered. That security of tenure can be
developed, albeit with varying degrees of protection, within
all tenure types is evidence of the need for flexible policy
approaches geared towards ensuring that everyone, within
every society, has a sufficient degree of the security of
tenure that all of their rights directly linked to their tenure
status can be enjoyed in full. To a degree, this needed flexibility
is now at least rhetorically apparent within the various
international discussions on security of tenure policy and, to
a greater or lesser degree, is equally apparent at the national
level in those states that have consciously chosen to treat
tenure issues increasingly in human rights terms. While
many trends can be identified, the growing acceptance of
the informal or ‘illegal’ city perhaps best encapsulates many
of the converging trends that simultaneously seek to achieve
greater degrees of tenure security, while economic and
geopolitical forces that threaten security of tenure continue
to dominate.
The preceding analysis reveals the challenges in determining
the most effective ways of merging human rights law
and principles with the practical steps, both political and
legal, that will allow increasingly larger and larger numbers
of people to enjoy security of tenure as a practical, legal and
enforceable human right. Clearly, international human rights
law now recognizes that all rights holders possess the right
to security of tenure, both as a core element of the right to
adequate housing and also as a key feature of a series of
additional rights that are not always viewed as necessarily
relevant to security of tenure, but which, in practice, very
much are. To this list, of course, should be included rights to
privacy, rights to the peaceful enjoyment of possessions,
rights to security of the person, rights to housing and
property restitution and a range of others. What is needed,
therefore, in policy terms at the international and national
levels is a new vision of security of tenure that combines the
best practices and experiences of the housing world intrinsically
with the best that can be offered by the world of human
rights law and practice. The emergence of such an integral
approach will most likely be beneficial to both sectors and,
ultimately, to the hundreds of millions of urban dwellers
who do not at present enjoy rights to secure tenure. The
contours of such an integral vision are explored in the next
chapter.
Laws are unjust
when the poverty of
the majority of
people makes it
impossible for them
to comply with them
Security of tenure
can be developed,
albeit with varying
degrees of protection,
within all
tenure types
International human
rights law now
recognizes that all
rights holders
possess the right to
security of tenure