A/HRC/22/46
40.
In addition, by addressing the issue in terms of informal and formal rights, the
continuum diagram is reflective of a binary thinking that has permeated international
development policy. It has been common to discuss land tenure and property rights in terms
of some form of duality, such as that between statutory and customary tenure arrangements. 27
Another form of duality involved a distinction between legal and illegal, or formal and
―informal‖ tenure categories, in which the former consisted of officially approved and
registered property and the latter (all other tenure arrangements) were ―extralegal‖.
41.
As discussed above, tenure categories are often partly formal, recognized or legal,
creating shades and combinations of legality, formality and extralegality. The degree of
tenure security provided by each of the tenure categories does not always correspond to
formalistic or legalistic readings of existing arrangements; rather, it can vary depending on
the socioeconomic and political context.
42.
The importance of recognizing the diversity and multidimensional nature of existing
practices is increasingly being acknowledged. In a recent publication, UN-Habitat and the
Global Land Tool Network indicated that the continuum diagram illustrates a wide range of
tenure rights ―in a highly simplified way: in reality, tenure rights do not lie on a single line,
and they may overlap with one another. Tenure can take a variety of forms, and ‗registered
freehold‘ (at the formal end of the continuum) should not be seen as the preferred or
ultimate form of land rights, but as one of a number of appropriate and legitimate forms.‖28
43.
It is thus evident that forms of tenure should more accurately be placed in a
multidimensional relationship to one another. And if there is a continuum, it should be seen
as going from insecurity to security of tenure, not from informality to formality.
III. Security of tenure in international human rights law
A.
Overview of relevant frameworks
44.
Security of tenure is recognized as a key component of the right to adequate housing
under international human rights law. The Special Rapporteur conducted comprehensive
research into the various sources of international human rights law, and especially the
authoritive guidance and commentary of United Nations human rights mechanisms, in
order to identify States‘ obligations relating to security of tenure.
45.
Regional and national case law, global governance frameworks relating to land
tenure and human settlements, and selected national constitutional and legislative
frameworks were examined in order to supplement an understanding of international human
rights law and to assist in identifying potential gaps and challenges.
46.
The most explicit and comprehensive discussion on security of tenure can be found in
commentary and observations adopted by the Committee on Economic, Social and Cultural
Rights. Other United Nations human rights mechanisms, like their regional and national
counterparts, have focused overwhelmingly on preventing and providing redress for forced
evictions, while giving only limited attention to other elements of security of tenure.
27
28
10
See, for example, World Resources Institute, in collaboration with the United Nations Development
Programme et al., World Resources Report: The Wealth of the Poor—Managing Ecosystems to Fight
Poverty (2005), pp. 60-61.
UN-Habitat and Global Land Tool Network, Handling Land: Innovative Tools for Land Governance
and Secure Tenure (2012), p. 12.
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