Global Report on Human Settlements 2007 - PoA-ISS

Policy responses to tenure insecurity
159
based approaches are far too expensive to undertake, and
when they are attempted, they have the net result of reducing
rather than increasing tenure security. Still others favour
maintaining customary land tenure arrangements because
they are seen as culturally appropriate, grounded deeply in
the history of the area concerned, and because they work
and are more equitable than approaches based on modern
law and private property rights.
Clearly, one of the key challenges for policy-makers is
sifting through these and many other views on security of
tenure and divining the best approach to a given situation.
Before looking at several approaches, it is important to point
out that just as formality of tenure does not unequivocally
guarantee secure tenure, informality does not necessarily
mean insecure tenure. As seen above in the context of
regularization, some forms of informality can provide a
reasonable degree of tenure security. This is not to say that
this approach should necessarily be favoured; but it goes to
the core of the issue at hand, which is essentially that much
of the strength of tenure security comes in the form of one’s
perception of the security of tenure that they believe they
have.
This may appear difficult to fit together with the
principles and rights of human rights law; but this may not
necessarily be the case. Perhaps perception and rights can go
hand in hand, with the objective being a process, perhaps
even a lengthy one, whereby the personal or community
perception of security can slowly and steadily be transformed
into a form of tenure – possibly based on freehold
title and possibly not – but whereby those currently residing
firmly in the informal sphere, without formal protection
from eviction, gradually accrue these rights in a progressively
empowering way. In this connection, it is important to
remember that the de facto and de jure status of a given
parcel of land may be markedly different:
NOTES
A squatter, or resident of an illegal subdivision,
for example, may enjoy no legal rights of
occupation, use or transfer, but can still feel
physically sufficiently secure, because of numerical
strength or political support, to invest in
house building and improvement. 66
Four major factors seem to contribute to people’s perception
of the level to which they are protected from eviction. These
include the:
• length of occupation (older settlements enjoy a much
better level of legitimacy and, thus, of protection than
new settlements);
• size of the settlement (small settlements are more
vulnerable than those with a large population);
• level and cohesion of community organization; and
• support that concerned communities can get from thirdsector
organizations, such as NGOs. 67
Security of tenure must be seen as a prerequisite, or an
initial step, in an incremental tenure regularization process,
focusing particularly as it does on the protection, as opposed
to the eviction, of the irregular settlement occupants and
not on their immediate regularization in legal terms.
Approaches that try to achieve security of tenure are the
only ones that will meet the immediate and longer-term
needs of the populations. As these varying points of view
conclusively show, the security of tenure debate is alive and
well. Realistically speaking, the main point for the hundreds
of millions of people currently living without security of
tenure is, perhaps, not whether they are the owners of
freehold title to a piece of land or not. More importantly, it is
about being able to live a life where their rights to security of
tenure are treated as seriously as human rights law says that
they should be.
Just as formality of
tenure does not
unequivocally
guarantee secure
tenure, informality
does not necessarily
mean insecure
tenure
Much of the
strength of tenure
security comes in
the form of one’s
perception of …
security
1 General Assembly
Resolution 401(V).
2 Payne, 2001d.
3 See Millennium Declaration,
Article 19.
4 UN-Habitat, 2003d, pxxviii.
5 Durand-Lasserve, 1998,
p245.
6 Durand-Lasserve and
Royston, 2002, p6.
7 Prefecture of São Paulo,
2003, p8.
8 See Boonyabancha, 2005;
Shack and Slum Dwellers
International, 2004.
9 Seabrook, 1996, p197.
10 de Soto, 2000.
11 Durand-Lasserve, 1998.
12 Payne, 2001c, p51.
13 Cousins et al, 2005.
14 Kanji et al, 2005.
15 Payne, 2001a, p23.
16 Payne, 1997, p46.
17 Ibid, p26.
18 Bromley, 2005, p6.
19 Ibid, p7.
20 Payne and Majale, 2004, p54.
21 Payne, 1997, p26.
22 Payne, 1997.
23 Durand-Lasserve, 1998,
p244.
24 Payne and Majale, 2004.
25 FAO, 2005, pp22–24, 26.
26 Cousins et al, 2005; Huggins
and Clover, 2005.
27 World Bank, 2003b, pxxix.
28 Ibid, p50.
29 Kanji et al, 2005, p3.
30 World Bank, 2003b, p50.
31 Housing and Property
Directorate/Housing and
Property Claims
Commission, 2005.
32 UNMIK Regulation 1999/23,
Preamble.
33 UN doc
E/CN.4/Sub.2/1993/8.
34 CESCR, General Comment
No 4, para 18.
35 Commission on Human
Rights, Resolution 1993/77.
36 See COHRE, 1999; UN-
Habitat and OHCHR, 2002;
UN-Habitat, 2002, 2005a,
2005b.
37 CESCR, General Comment
No 7, paras 8–9.
38 Ibid, para 10.
39 Ibid, para 16.
40 Ibid, para 13.
41 Ibid, para 17; and CESCR,
General Comment No 2,
para 6 and 8(d).
42 Including the right to
freedom of movement and
to choose one’s residence;
the right to privacy and
respect for the home; the
right to equal treatment
under the law; the right to
human dignity; the right to
security of the person;
certain formulations of the
right to property or the
peaceful enjoyment of
possessions.
43 Polis, 2002.
44 McAuslan, 2002, pp34–35.
45 Ibid, p36.
46 Ibid, p36.
47 Alston, 1993.
48 For more comprehensive
survey of strategies, see
COHRE, 2000.
49 UN-Habitat, 2003b.
50 Ibid.
51 Contained in Annex 1 of
UN Document
E/CN.4/Sub.2/1997/7.
52 Commission on Legal
Empowerment of the Poor,
2006a.
53 See section 121 of the
(interim) Constitution of
the Republic of South
Africa, Act 200 of 1993; and
Restitution of Land Rights
Act 22 of 1994.
54 Constitution of the Republic
of South Africa, Act 108 of
1993, Chapter 2 (the Bill of
Rights).
55 Government of the Republic of
South Africa and Others
versus Grootboom and
Others.
56 Grootboom versus Oostenberg
Municipality and Others.
57 Cousins et al, 2005.
58 South Africa Cities
Network, 2006.
59 Kahanovitz, 2007.
60 Marques, 2007.
61 Banerjee, 2002.
62 Baxi, 1982.
63 See, for instance, Jacquemin,
1999; Eviction Watch India,
2003; Gonsalves, 2005.
64 Hindustan Times, 2005.
65 Indian People’s Human
Rights Commission, 2000.
66 Payne, 1997, p8.
67 Ibid, p7.