The social function of land and security of tenure

Olivier DE SCHUTTER, Raquel ROLNIK, 2014

The world is in the grip of a global tenure insecurity crisis. Access to secure housing and land is a prerequisite for human dignity and an adequate standard of living, yet millions of people live under the daily threat of eviction, or in an ambiguous situation where their tenure status is challenged by authorities or private actors at any time. The crisis manifests itself in many forms and contexts. Manifestations of the tenure insecurity crisis can be seen in displacement resulting from development, mega-events, natural disasters and conflicts, land grabbing, and as a result of the real estate face of the

mortgage crisis.

No one is fully protected from tenure insecurity. At the same time it is evident that the most marginalized and poorest bear the brunt of the insecurity burden. Inhabitants of self-made and unplanned settlements epitomize tenure insecurity in a very visible form, but they are by no means the only example. Refugees and internally displaced persons, tenants, migrants, minorities, nomadic and indigenous communities, sharecroppers, other marginalized groups, and among all of these women - to name only a few – are often insecure. All tenure forms, including individual freehold, can be insecure, as the recent mortgage and financial crises have shown in different countries.

Security of tenure is without doubt a cornerstone of the right to adequate housing, and its absence one of the most acute vulnerabilities likely to lead to a range of human rights violations. Insecure tenure annuls all other aspects of the right to adequate housing: indeed, what is the point of having a well-nsulated, affordable, culturally appropriate home, to cite only some aspects of the right to 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. In addition, the denial of access to secure land and housing has been a major cause of conflict throughout history. It is also a source of impoverishment and a hindrance to socioeconomic development.

Conversely, when access to secure housing or land is provided, the potential for social and economic progress is immense—a fact recognized globally. Tenure security means a lot to families and individuals. It gives people certainty about what they can do with their land or home; and it offers them protection from encroachments by others. It often protects, increases and enables access to public services and benefits. It increases economic opportunities. It is a basis for women‘s economic empowerment and protection from violence. The relevance of the issue, not only to human rights but also to development, is evident.

Security of land tenure and access to land as a productive resource are essential for the protection of the right to food. In today’s world, half of those who are food insecure live in smallhold farming households, and approximately 20% are agricultural laborers who are landless or landpoor, and unable to feed themselves adequately by producing from whatever land they can use. Guideline 8.10 of the FAO Guidelines on the Right to Food, adopted in 2004 by the FAO Council, emphasizes the need to ‘promote and protect the security of land tenure, especially with respect to women, poor and disadvantaged segments of society, through legislation that protects the full and equal right to own land and other property, including the right to inherit’; and it recommends advancing land reform to enhance access for the poor and women.

In recent years we have seen a global rush for agricultural land and mounting concerns about the phenomenon referred to as ‘land-grabbing’ – the acquisition or long-term lease of large areas of land by investors. While renewed investment in agriculture was long overdue in many developing countries, large-scale investments in farmland have been associated with the expansion of large-scale, highly capitalized types of farming, rather than increased support to increase the productivity of the people who had hitherto been cultivating the land.

The rush for farmland has thus placed small-holder farmers under increasing pressue and concerns about negative implications, including for rural development and poverty reduction efforts, have spurred efforts to strengthen international regulations and norms in this area. In our capacity as United Nations Special Rapporteurs, we have been supporting these efforts. In 2010, the Special Rapporteur on the Right to Food presented to the Human Rights Council a set of minimum principles and measures to address the human rights challenge of large-scale land acquisitions and leases (A/HRC/13/33/Add.2). Their presentation was based on the consideration that it was necessary to clarify the human rights implications of land-related investments, in order to make it clear that governments had obligations they could not simply ignore for the sake of attracting capital. Similarly, the Special Rapporteur on the right to adequate housing has also focused her attention on security of tenure. She has presented a first report (A/HRC/22/46) examining the wide range of tenure arrangements and the prevalent focus in policy and practive on one form of tenure: individual freehold. She is currently preparing a second report to provide comprehensive guidance and recommendations for States and other stakeholders in relation to security of tenure for the urban poor, to be presented to the Human Rights Council in 2014.

In May 2012, the Committee on World Food Security (CFS) endorsed a set of Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT) to promote secure tenure rights and equitable access to land, fisheries and forests as a means of eradicating hunger and poverty, supporting sustainable development and enhancing the environment. This document will be complemented by another set of guidelines for responsible agricultural investment in the context of food security and nutrition, being negotiated within the CFS at the time of writing. At same time, within the United Nations Human Rights Council a process is under way to develop an international declaration on the rights of peasants and other people working in rural areas. As stated in the preamble of the draft declaration (A/HRC/WG.15/1/2), its relevance is based on the observation that “peasants constitute a specific social group which is so vulnerable that the protection of their rights requires special measures to make sure that States respect, protect and fulfil their human rights.” The issue of land and security of tenure is central to the draft declaration which identifies a “peasant” as “a man or woman of the land, who has a direct and special relationship with the land and nature through the production of food or other agricultural products” (art. 1).

The concerns related to the increasing pressure on land and rural livelihoods reflect an understanding that land is not merely an economic asset or a commodity, but also plays essential social and cultural fuctions. As the VGGT underlines in its preface, “land not only provides a critical source of livelihood for the rural poor, it is also has important social and cultural functions. The eradication of hunger and poverty, and the sustainable use of the environment, depend in large measure on how people, communities and others gain access to land, fisheries and forests. The livelihoods of many, particularly the rural poor, are based on secure and equitable access to and control over these resources. They are the source of food and shelter; the basis for social, cultural and religious practices; and a central factor in economic growth.”

Access to land and security of tenure are essential for the ability of smallholders to achieve a decent standard of living. Land provides an essential social security mechanism and social safety net for millions of rural poor, living of subsistence farming. The ability to grow a substantial part of their own food is also critical to their access to adequate food and nutrition, since this reduces the dependency of the rural poor on market prices for food which are often highly volatile and go through significant variations across seasons. The right to food imposes on States an obligation not to deprive individuals of access to the productive resources on which they depend.

Security of tenure is also protected by international human rights law and safeguards against forced evictions. 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. Forced evictions have been addressed by human rights mechanisms and courts at all levels in considerable detail. Extensive guidance is available on the prohibition of forced evictions and the strict procedural safeguards that must be followed in situations in which evictions are carried out, including meaningful consultation with affected communities. As underlined by the Committee on Economic, Social and Cultural Rights, all persons should possess a degree of security of tenure that guarantees legal protection against forced eviction, harassment and other threats. The Commission on Human Rights, in its resolution 1993/77 (para. 3), similarly urged Governments to confer legal security of tenure on all persons currently threatened with forced eviction.The increasing pressure on land has accentuated the importance of security of tenture for both the rural and the urban poor. The political economy of land deeply influences processes of development, urbanization and housing. Large-scale acquisition of land in rural areas - often carried out in non-transparent ways and managed poorly - as well as land speculation 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 end up living in housing and settlements with insecure tenure arrangements.

In addition, due to their increasing commodification, rural and urban lands have become highly contested assets, with dramatic consequences, particularly but not exclusively in emerging economies. The dynamics that accompany the liberalization of land markets are increasing the pressure on urban low-income settlements. This is topped by a global context where resources for housing do not reach the lowest income groups. Communities are under threat of dispossession, their right to adequate housing, including tenure security, left unprotected.

In this regard, some have argued for legal empowerment of the poor in the form of individual titling and formal ownership of land. However, evidence shows that individual titling and increasing a market for property rights are in many cases not the best means of protecting security of tenure. In fact, despite the prevalence of a great variety of tenure systems and arrangements worldwide, in the past few decades, most models of urban planning, land management, development and legal regimes have prioritized individual freehold. This common fixation on freehold has been supported by the predominant economic doctrine of reliance on private property and market forces.

As a result, the financial sector and the private housing market, coupled with support for households to take on credit debt, became primary mechanisms for allocating housing solutions. Foreign assistance from international organizations greatly influenced the development of market-based housing finance and boosted housing market activity in developing countries. Despite some diversity in housing policy experience, most countries opted for promoting housing markets and individual homeownership, privatizing social housing programmes and deregulating housing finance markets. This was evident in most formerly planned economies, which in the 1990s privatized public housing on a large scale, leading to radical changes in tenure structure. In some of those countries, owner-occupied housing now constitutes more than 90 per cent of the housing stock.

In developing countries, Governments were encouraged to undertake individual land titling programmes as a key means of not only increasing tenure security, but also of facilitating access to formal credit and reducing poverty. The underlying assumption was that secure tenure—understood as having proper titles—increased housing investment. Also influential was the claim of a direct correlation between property ownership and affluence in the West and the lack of it in developing countries. Consequently, home ownership rates worldwide have been generally climbing since the 1950s.

This process has overshadowed other well-established forms of tenure. Government support of other forms was reduced, for instance for collective ownership or rental housing. Furthermore, the prevalence of individual freehold over any other tenure arrangements has increased the tenure insecurity of all other forms of tenure.

The recognition of formal ownership, rather than on land users’ rights, may in fact confirm the unequal distribution of land and place women at a further disadvantage. As discussed by the Special Rapporteur in a report presented to the General Assembly in 2010 (A/65/281), individual titling schemes should be encouraged only where they can be combined with the codification of users’ rights based on custom, and where the conditions have been created to ensure that the establishment of a land rights market will not lead to further land concentration. On the other hand, the recognition of customary rights, including collective rights, can serve as an alternative to individual titling. Such formal legal recognition of customary rights can provide effective security and favour investments in the land. At the same time, adequate human rights based safeguards must be in place to ensure that the recognition of customary forms of tenure will not legitimize traditional, patriarchal forms of land distribution in violation of women’s rights.

Recognition and protection of security of tenure is one of the most compelling challenges of today’s world and is fundamental to preventing the most egregious forms of eviction, displacement and homelessness. Furthermore, security of tenure is essential for human dignity and to sustain an adequate standard of living.The AITEC publication is a most welcome contribution to further clarify the important social functions of land and why land cannot be reduced to a mere economic commodity.