Download the file - United Nations Rule of Law

Security of tenure: Conditions and trends135countries, cities and even neighbourhoods and streets, aswell as between and within households – ‘one-size-fits-all’approaches to security of tenure will simply not work andshould not even be attempted. 71Along with the recognition that it is within the informalsector that solutions to the global tenure crisis will needto be found, there is also a growing acceptance of the informalcity by most local and national governments. While somegovernments – particularly those of an authoritarian or lessthan democratic tilt – are willing to violate internationalhuman rights norms and wantonly evict hundreds ofthousands of people in a single eviction operation, thisremains the exception to the rule. Of the 1 billion peopleliving in slums today (see Table 5.2), it is likely that wellunder 1 per cent face forced eviction in a given year. This iscertainly 1 per cent too many; but this fact shows thatgovernments now generally accept the inevitability of theinformal city much more than ever before, in spite of (or,perhaps, because of) the reality that these cities are beyondthe reach of the law in so many ways. In most instances, asense of benign neglect exists, sometimes side by side withconcrete and tested policies that actually succeed in providingsecure tenure and broader neighbourhood-wideimprovements; but often it is simply acceptance of theinevitable, and the political consequences of choosing amore active policy opposing these developments, thatdominates local government approaches to thesequestions. 72This begrudging acceptance of the informal or ‘illegal’city, however, has almost invariably fallen short of whatwould be considered an adequate response to the social andeconomic conditions that lead to the emergence of suchcommunities. For if law is meant to be a reflection of thesociety that it is designed to order and arrange, then legalsystems the world over are also falling far short of theirexpectations. Legal systems cannot aspire to legitimacy ifthey exclude the majority of their population:… laws are unjust when the poverty of themajority of people makes it impossible for themto comply with them. If, for most urban citizens,the basic tasks of daily life – building or rentinga shelter, earning an income, obtaining food andwater – are illegal, it would be wise for governmentsto change the legislation or simply toeliminate unrealistic laws. Urban legislationshould be more flexible in adapting to the greatvariety of circumstance and the rate at whichthese can change. 73Governments can rather easily – for a variety of reasons,most importantly the high political costs of forcibly evictingentire neighbourhoods – allow the informal city to exist.Responsible governments, however – who are activelyseeking to comply with human rights obligations – need todo much more than simply accept that a growing portion oftheir populations are forced by circumstance to find housingoptions outside of the legally recognized realm.Governments need to acknowledge that the poor choosesuch options precisely because the legal housing sector doesnot provide them with access and options that they canafford, and which are located near employment and livelihoodoptions.CONCLUDING REMARKSAs has been outlined in this chapter, the question of securityof tenure is by its very nature complex, diverse and oftencomprised of unique attributes depending upon the particularsettings considered. That security of tenure can bedeveloped, albeit with varying degrees of protection, withinall tenure types is evidence of the need for flexible policyapproaches geared towards ensuring that everyone, withinevery society, has a sufficient degree of the security oftenure that all of their rights directly linked to their tenurestatus can be enjoyed in full. To a degree, this needed flexibilityis now at least rhetorically apparent within the variousinternational discussions on security of tenure policy and, toa greater or lesser degree, is equally apparent at the nationallevel in those states that have consciously chosen to treattenure issues increasingly in human rights terms. Whilemany trends can be identified, the growing acceptance ofthe informal or ‘illegal’ city perhaps best encapsulates manyof the converging trends that simultaneously seek to achievegreater degrees of tenure security, while economic andgeopolitical forces that threaten security of tenure continueto dominate.The preceding analysis reveals the challenges in determiningthe most effective ways of merging human rights lawand principles with the practical steps, both political andlegal, that will allow increasingly larger and larger numbersof people to enjoy security of tenure as a practical, legal andenforceable human right. Clearly, international human rightslaw now recognizes that all rights holders possess the rightto security of tenure, both as a core element of the right toadequate housing and also as a key feature of a series ofadditional rights that are not always viewed as necessarilyrelevant to security of tenure, but which, in practice, verymuch are. To this list, of course, should be included rights toprivacy, rights to the peaceful enjoyment of possessions,rights to security of the person, rights to housing andproperty restitution and a range of others. What is needed,therefore, in policy terms at the international and nationallevels is a new vision of security of tenure that combines thebest practices and experiences of the housing world intrinsicallywith the best that can be offered by the world of humanrights law and practice. The emergence of such an integralapproach will most likely be beneficial to both sectors and,ultimately, to the hundreds of millions of urban dwellerswho do not at present enjoy rights to secure tenure. Thecontours of such an integral vision are explored in the nextchapter.Laws are unjustwhen the poverty ofthe majority ofpeople makes itimpossible for themto comply with themSecurity of tenurecan be developed,albeit with varyingdegrees of protection,within alltenure typesInternational humanrights law nowrecognizes that allrights holderspossess the right tosecurity of tenure