Global Report on Human Settlements 2007 - PoA-ISS

Enhancing tenure security and ending forced evictions
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serious consideration by governments and international
agencies. Such an approach may stand the best chance yet of
gaining and maintaining tenure security for the world’s
poorest and most vulnerable groups.
But if such an approach is to be embraced, why would
an integrated approach, based on human rights, be any
better than what has been attempted in the past? First, it is
important because states are already legally bound by a
whole series of human rights obligations. Second, when
access to secure tenure is viewed through the lens of human
rights – or the bundle of rights and entitlements that protect
people from being arbitrarily or unlawfully removed from
their homes and lands, and the protections that this legal
regime is designed to provide to every human being – it
becomes clear that the right to security of tenure is perhaps
denied to more people than any other basic human right,
with the possible exception of the right to water. 2 Thus, the
pressing need to address these questions as rights violations
adds increased urgency to the global quest for security of
tenure.
While approaching security of tenure from such a
rights-based approach is still relatively uncommon, many
developments point in this direction. The <strong>Global</strong> Campaign
for Secure Tenure, for instance, has recognized the importance
of taking human rights approaches in achieving secure
tenure, and has stressed the absolute primacy of human
rights in this regard. 3 All states have voluntarily ratified international
human rights instruments that legally bind them to
certain actions, many of which include specific obligations to
recognize and protect rights, such as the right to secure
tenure. The principles of a human rights-based approach are,
in fact, found – albeit providing varied levels of protection –
within the existing law of most countries. These principles
may not always be subject to full compliance or enforcement;
but as legal principles, there is no disputing the fact
that they are in place. Indeed, all legal systems – common
law, civil law, Roman–Dutch law, Islamic law (see Box 11.1),
customary law and others – address the question of tenure
and the degrees of security accorded to each type of recognized
and informal tenure arrangements. Much research on
security of tenure, however, only touches lightly on the
question of law and its role in the conferral of security
tenure, and even less so on the human rights dimensions
(which are also legal in nature) of this question. It is important
to ask why states have not more frequently embraced
human rights tools to support wider access to tenure.
International human rights law, for instance, stipulates that
governments need to respect, protect and fulfil housing,
land and property rights by ‘taking steps’ to the ‘maximum of
available resources’ to ensure the ‘progressive realization’ of
all rights, including the right to security of tenure.
Moreover, addressing security of tenure as a human
rights issue is somewhat trickier than many other rights. The
main reason is that local conditions must always be taken
into account in determining both the diagnosis and the
remedy to prevailing conditions of tenure insecurity. This is
not often the case with rights such as freedom from torture,
a fair trial and other rights for which more universally applicable
remedies may be easier to identify and implement.
Box 11.1 Islamic law and security of tenure
In the work to develop a new integrated human rights-based approach to realizing the right to
secure tenure, the explicit recognition of an extensive range of property rights in Islam should
be taken into consideration:
Property rights are not only well established under Islamic law, they are indisputably
one of the five foundational principles of Islamic society. Understanding the nature and
scope of property rights in Islamic society could further secure tenure as the land
rights framework emerges from divine edict and the sayings and examples of the
Prophet.
The concept of property rights in Islamic economics has implications far beyond the material
domain as it lays stress on responsibility, poverty alleviation and redistribution. Islamic doctrines
engage with entitlement to land rights for a broad range of beneficiaries, including women,
children, landless and minorities. The repeated Islamic emphasis on obligations regarding
philanthropy, fairness and poverty alleviation are influential in land rights argumentation based
on a holistic, authentic, moral, ethical and legal land rights code.
Source: UN-Habitat, 2005e, pp13–14
While to an extent true of all rights, the importance of
strong political support for security of tenure within all
housing sectors is vital to ensuring that everyone has fully
enforceable security of tenure rights.
The legal and normative basis for security of
tenure as a human right
If security of tenure is to be treated as a right, it is clear that
a range of existing human rights, viewed as an integral
whole, form the legal and normative basis for the existence
of this right. While numerous rights form the foundation
upon which the right to security of tenure rests, it is perhaps
the right to adequate housing, the right to be protected
against forced evictions, the right not to be arbitrarily
deprived of one’s property, the right to privacy and respect
for the home, and the right to housing and property restitution
that are most fundamental. These rights are briefly
outlined in the following sections.
■ The right to adequate housing
The right to adequate housing was first recognized in the
Universal Declaration of Human Rights in 1948 and subsequently
reaffirmed in various international legal standards
(see Box 11.2). While international human rights law widely
recognizes various manifestations of housing rights, the
International Covenant on Economic, Social and Cultural
Rights (ICESCR) contains perhaps the most significant international
legal source of the right to adequate housing:
The States Parties to the present Covenant
recognize the right of everyone to an adequate
standard of living for himself and his family,
including adequate food, clothing and housing,
and to the continuous improvement of living
conditions. 4
The right to security
of tenure is perhaps
denied to more
people than any
other basic human
right
The right to
adequate housing
was first recognized
in the Universal
Declaration of
Human Rights in
1948