From shelter to housing: New NRC report on tenure security and displacement

by Rhodri C. Williams

The Norwegian Refugee Council (NRC) just released a substantial study I wrote for them on the right to security of tenure and how it relates to interim shelter needs and long-term durable solutions for both refugees and internally displaced persons (IDPs). It is a long read, but I would recommend it to those interested in these topics as my most comprehensive attempt to date to articulate the legal and policy dynamics of this important emerging area of humanitarian practice.

The background analysis in the study picks up on themes I developed earlier with regard to Liberia (also for the NRC), as well as Serbia (for the Brookings Institution) and Iraq (for the US Institute of Peace). These include the need for humanitarian actors to continue their engagement with both human rights and development discourses related to access to housing and security of tenure. The nexus with human rights emerges clearly from the moment of displacement, given the increasing trend (as reflected in the Sphere Standards) toward aligning humanitarian shelter provision with the human right to adequate housing. In accordance with commonly accepted understandings of this right, this means that even transitional shelter should meet basic standards of adequacy and be provided in a manner that ensures an appropriate level of tenure security to its occupants.

Meanwhile, the nexus with development standards relates to the insight that an increasing number of both refugees and IDPs find themselves in situations of protracted displacement. As a result (and as described in my earlier study on Serbia), measures to provide interim shelter solutions for displaced persons may quickly take on a de facto permanent character, and should often be planned with this eventuality in mind. This implies that pro-poor urban development standards (such as those developed by UN-HABITAT) should be applied wherever possible to allow the community-driven upgrading of IDP and refugee settlements. It also implies that development standards regarding involuntary resettlement should complement human rights standards in guaranteeing legal security of tenure for the displaced.

In the current NRC study, the case studies chosen related to Palestinian refugees in Lebanon as well as IDPs in Georgia. Application of the relevant standards on tenure security is difficult in both cases, but for entirely different reasons. In the case of Lebanon, refugees do not (unlike IDPs) enjoy a right to seek local integration as a durable solution. However, the particular political sensitivities in Lebanon have led to a situation in which efforts to prevent local integration have led to restrictions in areas such as access to housing that cannot easily be reconciled with the country’s international obligations.

In the case of Georgian IDPs, there has been a determined and ambitious effort to facilitate integration in a manner that does not foreclose the eventual possibility of property restitution and return. However, significant complications have arisen in part because this program has been aligned with a broader attempt to privatize state-owned property. This has led to some some difficulties in a program to allow IDPs to buy the shelter allotted to them in buildings subject to privatization as well as questions regarding what can be done for the large proportion of IDPs still sheltered in private accommodation.

It is important to recognize the initiative of the NRC, and particularly its Information, Counseling and Legal Assistance (ICLA) program, in driving these issues forward. The ICLA program has in many respects led the way in terms of seeking effective property remedies for the displaced in the field, and have now pivoted quickly to address new concerns related to tenure security where such remedies are not forthcoming. As always, I benefited a great deal from the insights and hospitality of my NRC colleagues while preparing this report, and it is my fond hope that some of them will guest-post on TN soon with both updates on the specific case-studies covered in the report and comments about their other ongoing initiatives in the area of housing, land and property rights.

Look before you legislate? The challenges facing restitution in Libya

by Rhodri C. Williams

It seems that plans are now afoot in Libya for a full-scale program of restitution of properties nationalized and appropriated under the Ghaddafi regime. Bloomberg reported yesterday that a law envisaging a two phase process will be rolled out as soon as next month:

Libya will announce a law that will return land and buildings expropriated by late ruler Muammar Qaddafi to the original landowners “within weeks,” a senior member of the Land Ownership Committee said.

“Phase one will return unused lands, empty shops, buildings and villas taken by Qaddafi’s regime and then by the rebels to the rightful owners,” said Fawzy Sheibany, legal representative for the committee, in an interview in the capital, Tripoli. “This will mean millions of dinars can be invested in construction projects and provide employment.”

Phase two of the new law involves rehousing families residing in buildings on expropriated land and could take several years to implement fully, he said. The Ministry of Justice will deal with individual cases through a civil court.

On the face of it, there is every reason to welcome this development. The Ghaddafi-era expropriations were ostensibly meant to further public purposes but became, by all accounts, an arbitrary means of both punishing enemies and rewarding those the regime favored. Moreover, the resulting legal uncertainty in property relations was cited (in 2004) by a leading Middle Eastern law firm as a key structural obstacle to legal reform efforts during the run-up to the uprising:

As a result of abolishing real property ownership for investment purposes, the commercial real estate market has been completely distorted. There exists now a private land market and a public land market with a price gap that creates considerable uncertainty for both foreign and local investors. Compounding the problem, the [1997] Foreign Investment Law is not clear as to whether real property can be used as collateral or even can be freely transferred without government approvals. The government has announced plans to reform the laws governing property and rentals, but their scope is uncertain.

Finally, perhaps the most convincing ground for pushing for quick legislative measures is the need for the National Transitional Council (NTC) to be seen to lead from the front. In the wake of Amnesty International’s widely publicized allegations of human rights abuses by ‘out of control’ militias in Libya, anything the NTC can do to stamp its legitimate authority on matters of broad public interest appears welcome. In fact, this is a particularly important issue in regard to property. Recent reports such as this one by the Guardian indicate that the militias have become part of a pattern of spontaneous restitution, often carried out by means of violent self-help.

So what, one might ask, is not to like in a bill that serves not only justice but also economic development and political consolidation? The answer is that if it is rushed through without consultation, this bill may actually have the opposite effect, generating new cycles of grievance, reducing legal certainty and even undermining the authority of government in Libya if it proves impossible to effectively and consistently implement. Perhaps the most cogent argument for a deliberative approach to restitution for the prior regime’s confiscations is that this is to some extent a constitutional decision rather than merely a legislative one.

From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights

by Elizabeth Ferris, Erin Mooney and Chareen Stark

This post continues our discussion of the study entitled “From Responsibility to Response: Assessing National Response to Internal Displacement” recently released by the Brookings-LSE Project on Internal Displacement.

Addressing housing, land, and property (HLP) issues is a key component of national responsibility. Principle 29 of the non-binding but widely accepted Guiding Principles on Internal Displacement emphasizes that competent authorities have a duty to assist IDPs to recover their property and possessions or, when recovery is not possible, to obtain appropriate compensation or another form of just reparation.

The 2005 Framework for National Responsibility - which set the benchmarks we applied in our current study – reaffirms this responsibility (in Benchmark 10, “support durable solutions”) and flags a number of the challenges that often arise, such as IDPs’ lack of formal title or other documentary evidence of land and property ownership; the destruction of any such records due to conflict or natural disaster; and discrimination against women in laws and customs regulating property ownership and inheritance.  The Framework for National Responsibility stresses that, “Government authorities should anticipate these problems and address them in line with international human rights standards and in an equitable and non-discriminatory manner.”

The extent to which a government has safeguarded HLP rights, including by assisting IDPs to recover their housing, land, and property thus was among the indicators by which we evaluated the efforts of each of the 15 governments examined in our study. Our findings emphasized the importance of both an adequate legal and policy framework for addressing displacement related HLP issues and the role that bodies charged with adjudication and monitoring can play in ensuring implementation.

IFRC meeting on post-disaster shelter issues

An invitation to TN readers that may find themselves in Geneva next Wednesday, July 20 – I’ll be co-facilitating an expert group meeting together with Geoffrey Payne on “addressing regulatory barriers to meeting the emergency and transitional shelter needs of people affected by disasters” and would welcome the participation of those of you have had occasion to work on and ponder these issues.

The aim of the meeting is to help the Disaster Law Programme at the International Federation of Red Cross and Red Crescent Societies (IFRC) to peer review both its current understandings of obstacles to post-disaster shelter and of practices proven to be effective in overcoming them in order to develop a set of recommendations for consideration at the 31st International Conference of the IFRC next November.

Choosing in the absence of choice: Protracted displacement and integration

by Rhodri C. Williams

This week, my blogging is likely to suffer a bit as a result of my participation in a timely and interesting meeting on protracted displacement. The conference – or more accurately, the “Second Expert Seminar on Protracted Internal Displacement” – is supported by a dedicated webpage at IDMC with a good overview of what will be discussed and a useful selection of background documents.

The prior ‘first expert seminar’ in 2007 addressed the problem of protracted internal displacement quite broadly and provided an important service by simply defining it. The definition selected departed somewhat from those proposed in the past for for protracted refugee situations in that it dispensed with minimum durations of displacement or numbers of people affected in favor of focusing on the obstacles posed to internally displaced persons’ (IDPs’) rights and dignity by the sheer fact that prospects for voluntary durable solutions remain indefinitely remote.

The current seminar focuses on local integration as a solution to displacement. As described in my background paper on Serbia, as well as the five other highly informative case-studies commissioned for this meeting, local integration may often be inevitable but is rarely a popular political choice. For instance, in conflict-related displacement situations, integration may be seen by the authorities and even IDPs themselves as undermining policies meant to ensure the reintegration of breakaway regions through mass return.

Haiti post-quake land issues emerge into the mainstream debate – UPDATED

NB: Yesterday’s New York Times reports that a fairly minor storm hit the planned shelter area referred to in the below post earlier this week, destroying hundreds of tents and rendering about a quarter of the IDPs resettled there homeless. Several people were injured – and one infant killed – by windblown debris and lightning. Camp managers have taken this as a wake-up call and the construction of sturdy transitional shelters may begin as early as today. The article does not clearly address how the many squatters in the area in flimsier shelter fared, or whether any measures are being considered to protect them from more serious storms that are thought to be on the way.

by Rhodri C. Williams

Six months after the Haiti quake, the significance of land disputes to reconstruction now seems to be sinking in. This is highlighted in a fascinating Washington Post article on the problem of finding land to resettle earthquake IDPs in Port au Prince.

The piece focuses on Corail-Cesselesse, an area north of the capital that has been designated to be a new “Zen city” (I’m not making this up!), combining planned housing for quake-affected persons with access to jobs in a new manufacturing zone. So far, this has led to an initial planned transfer of IDPs from particularly dangerous (or objectionable?) camps followed by a large-scale incursion of squatters hoping (and encouraged?) to stake out their piece of a bright new future.

The article is particularly illuminating on the nature of land disputes, with powerful interests close to the government that won contracts to manage the development process facing resistance from the owners of the land in question. Thus, while IDPs and squatters are present more in the way of pawns than as direct parties to the dispute, they bear the brunt of the resulting violence. To paraphrase the article:

IOM on Haiti – relocation of vulnerable community thwarted by land dispute

Many thanks to Peter van der Auweraert at IOM for bringing the below IOM Press Note, dated 02 July 2010, to my attention. It provides a rather vivid depiction of the less than constructive role of Port au Prince’s large landowners in the effort to provide transitional shelter to victims of the January earthquake (as alluded to yesterday in my post here).

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When armed thugs allegedly hired by landowners threatened violence on IOM staff and support workers earlier this week, a sensitive operation to rescue families from a desperate situation came grinding to a halt.

Some 263 families cling precariously to life in Parc Fleurieux; their sad tents hug the bank of a football field that’s flooded with stagnant water contaminated by a nearby open sewer. Women wash their clothes in a muddy creek using water that emerges from the grime of Port-au-Prince . Naked children wander through the camp scratching at skin infections, while residents suffering from malaria and other illnesses sit bleary-eyed in their tents.

The Haitian Government, IOM, international and non-governmental actors agreed that the health situation of the group was critical and that urgent action was required to prevent a public health crisis. After discussion with the local mayor, a location was found on an informal space with room for extra families and work on preparing the site with gravel and drains began.

Once force was threatened during the voluntary relocation, the whole operation was called off pending negotiations with the landowner’s representatives. It was left to Renald, the 29-year old elected site representative to break the disappointing news to his fellow residents. An eloquent man who speaks fluent English and French and Creole, he says he has been both homeless and unemployed since the 12 January earthquake.

Dye mon, gen mon – Land and shelter issues remain critical in post-quake Haiti

by Rhodri C. Williams

After blogging quite a lot on Haiti up till the New York donors’ conference back in March, my attention wandered a bit to other issues and regions. However, its been impossible to avoid noticing a steady drumbeat of reports over the last weeks indicating that a number of key pillars of the shelter and durable solutions strategies endorsed in New York seem to be faltering just as the new rainy season closes in on the beleaguered country.

Rebuilding after a disaster of the magnitude of Haiti’s quake will inevitably be a fraught process, subject to setbacks and delays. Even in relatively better off and better prepared Chile, IFRC reports that shelter and health issues remain a serious concern for those affected by the February quake there. But what is painful about the current impasse in Haiti is how quickly the cautious optimism generated in the run-up to the donor conference seems to be bogging down in a slurry of indecisiveness. Reading about it, I keep recalling a rather sad little Haitian proverb a colleague kept quoting in my grad school days of yore – back in the 90s when pre-quake Haiti was already seen as a basket case. “Dye mon, gen mon” went the title of her thesis: beyond the mountains, more mountains.

I began refocusing on Haiti after coming across an IHT editorial in mid-May that noted that the 1.5 million Haitians displaced by the quake remain, by and large, displaced. According to the editorial, only 7,500 people had been moved out of dangerous and overcrowded tent cities in the capital to planned transitional shelter areas due to the failure of the government to acquire appropriate sites, as well as the destruction of property records and growing neighborhood resistance to letting indigent newcomers put down roots. Meanwhile, the failure of humanitarian agencies to shift their operations beyond the capital was undermining the great decentralization plan, as urban IDPs began trickling back from the rural areas where they had found shelter in order to access aid.

Haiti update – emergency response criticized as transitional measures get underway

Refugees International recently issued a new report, Haiti: From the Ground Up, which examines the ongoing humanitarian crisis in Haiti and makes a number of recommendations for improving the international response. Coverage in today’s NY Times emphasized the fact that this report, like an earlier Human Rights Watch report on shelter issues, took the UN to task for lapses in coordination and prioritization.

The analysis in both reports has highlighted housing, land and property (HLP) issues related to shelter needs and durable solutions for the displaced. The Human Rights Watch report focused more narrowly on the need to ensure that sites for camps are lawfully acquired as well as suitable and safe for human habitation. However, the Refugees International report places displacement and HLP issues in a broader context, referencing the implications, described earlier in this blog, of the reverse urbanization that resulted from the quake:

Some 700,000 people in Port-au-Prince are without homes or proper shelter and another 600,000 people have left the capital. This has important implications for the overall development of the country. While the main focus of the humanitarian response has been on the Port-au-Prince area, the protection of displaced and affected families in the provinces requires both immediate assistance and longer term investments. The UN should increase its efforts and support existing activities to identify the needs of displaced people throughout the country.

Tents are in short supply in the settlements for displaced people both in the capital and in the provinces. Most people who have lost their homes sleep under makeshift dwellings of sheets and sticks providing little protection from the rain. The sanitation in the camps does not meet minimal international standards. The need for shelter poses immense logistical challenges and is intrinsically linked to land ownership and property rights, affecting both urban Haitians whose homes were destroyed as well as rural Haitians who depend on land for farming.

However, displaced people are not only in camps. Large numbers have sought refuge with relatives and friends who are quickly running out of resources. Refugees International has learned that families in Papaye, in Haiti’s central valley, now have on average 20-26 people in their homes. In Saint Marc, some 60 miles north of Port-au-Prince, the mayor has been organizing community support for the internally displaced. More than 25,000 have been registered, living in some 7,000 households. Refugees International also visited a school that remained closed because it housed displaced families. Such situations create a strain on already limited resources and infrastructure.

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If support is not channeled quickly into the provinces, the displaced will return to Port-au-Prince. This would only compound the challenges of distribution and coordination across the city, where at least 75 percent of the buildings have been destroyed and the ability to provide humanitarian assistance while protecting IDPs is overstretched. If support is invested in provincial communities, it will create a draw for those living in the Port-au-Prince camps to the provinces, lessening the strain in population-dense Port-au-Prince, while allowing for decentralized coordination and support of the displaced and host communities. ….

“Decentralization” has been the hot topic for the majority of Haitians. The infrastructure outside of Port-au-Prince is weak, and the capacity to absorb and support internally displaced people (IDPs) from the quake-impacted regions is thin. Within a disaster of this magnitude, however, exists the opportunity to support a decentralization movement and country-wide infrastructure investment that will not only provide urgent protection and support for IDPs, but will also address the imbalance in national development that contributed to great loss and vulnerability of Haitians in the Port-au-Prince area.

Meanwhile, the latest OCHA report contained mixed news. While concerns are mounting over the impending rainy season and the continued need to provide agricultural support to respond to the displacement-driven rural crisis, the report also noted that increased food distributions were giving way to food-for-work programs and that the Prime Minister had “approved five plots of land to set up transitional settlements, as well as eight plots to collect and treat debris in the metropolitan area.”

Haiti

Thanks for all the visits and positive feedback yesterday. And no fear Peter; I am daunted!

It feels pretty inappropriate to launch an HLP blog at this moment in time without at least referencing the appalling situation in Haiti, where some of the sharpest-edged imaginable humanitarian – and HLP issues – are playing themselves out right now. Moreover, we now seem to be nearing the inevitable moment where the emerging ramifications of the crisis and the intensity of the local and international relief effort will enter into an inverse relationship with the amount of page 1 space the situation is getting.

In terms of property issues, Port au Prince gives the impression of a perfect storm; extensive destruction in the context of massive informality, no available records, crippled courts and administration, spontaneous IDP settlements in places with unexplored safety and tenure issues and no easy prospect of return. However, colleagues report a sense of common urgency about getting to grips with the underlying HLP issues along with more familiar considerations such as safety and hygienic conditions right from the earliest discussions of shelter strategy, which is reassuring – if still a very tall order for those put in charge. I will aim to give the HLP situation in Haiti the coverage it is due – and hope I might even be able to entice some guest-blogging from people with experience on the ground there – in the next days.