SECURITY OF TENURE: TYPES, PRACTICES AND CHALLENGES

This section aims to present the legislative issues involved in the security and insecurity of tenure. While there are variations in the classification of tenures and related rights, it should be noted that the LT rights are fragile, which must be secured off the dissemination and against harassments and multiple claims from others. In this

connection, operational definitions of the LT term indicate the term of ‘Security’

regarding the tenures’ rights. According to FAO (2012), all forms of land tenure should

provide all persons with a degree of tenure securitylaws, which must be recognizedby

the authorities. Further literatures stressed that the security of tenure is justifiable and should be regulated by a legal structure within the land administration system. UN- Habitat (2006a: p.94) showed this issue by describing the security of tenure as a legal

protection to the users’ rights obtained by authorities in a system framework: “The right

of all individuals and groups to effective protection from the State against forced evictions”. In fact, the general picture of the literature has focused on how to identifies

some of the main actors involved in LT security to manage and implement the effective policies and practices of the securing access to tenure rights, in which people be able to

save their rights (see UN-Habitat,2005a, 2005b, 2006a, 2010a and 2011a). Therefore,

the sustainable institutional framework is the principal mechanism through which LT security can be sought. Despite the diversity of concepts, this point can be argued that the role of institutional authorities is crucial element in protection of the user’s rights and then the reliability of mechanisms to build an effective LT security. Thus, the absence of system ability to address the more fundamental supply rights of land, inappropriate regulatory structures and an weakness and deficiency of used mechanism; all lead to lack of the LT security and then the insecurity of tenure.

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In this context, according to the UN-Habitat definition (2011a;p 25), security of tenure

requires the “…effective protection by the state against involuntary removal from their

land or residence”, that the LT security is a vulnerable form and may not linked

automatically with irregular and insecurity levels of tenures by saying that: “Security of

tenure is not so much derived from the legal status of the rights held, as from social consensus on the legitimacy of these rights and the reliability of mechanisms for arbitration should conflicts arise.”. Therefore: “..Security of tenure takes various forms depending on the legal framework, social norms and value systems of each culture”.

This definition inspires the aim of this research not only because it has an ability to describe the key fundamentals of LT security such as legal status of system, society, customs and legal context of attributes that are necessary for providing an effective security, but also because it highlights the significant point of end-users being satisfied and have secured their tenure rights. Also, this definition has become the main starting point of this research as it is relevant to the current situation in the Iraqi (as described in chapter 4), where LT security is just the reflection to the satisfaction and success from the end-user’s view, and also as a result of the quality of legal status of the system which held the institutional mechanism of LT security.

2.3.1 Consequences of LT insecurity

It is a striking fact that LT rights and its security are vulnerable; as they are potentially related to designated policy and the quality of the system, which are integral measurements of its quality. Measuring security of tenure is a necessary step towards avoiding consequences of the insecurity and then saving the users’ rights. It can be

noted that the absence of LTsecurity is linked to administration deficiency objectives of

system. This point can be argued that the implementation of secured tenure should be issued through effective legal institutions to protect the considerable rights of people with respect to those potentially challenges of consequences of the insecurity case of tenure.

Faced with such a situation, insecurity of LT can be potentially triggered by the inactive policies of land institutional bodies. With several case studies and examples, the

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insecurity consequence indicates on the different attributes of failures, including social, economic aspects, and authority’s organizational deficiency. FAO (2007) and UN- Habitat (2010 and 2011a) stressed that a chaotic or unclear policy of system can be considered as the main factor encourages insecurity of LT. Also, UN-Habitat studies in the developing countries (1996, 2002, 2003, 2005b, 2008, 2010, 2011, 2012 and 2013a) argued on a set of possible arrangements that are responses to the insecurity of LT, included limited options of slum and squatter settlements but to live in unsafe environments. Also, Payne and Durand-Lasserve (2012) showed that each of these failures triggers deeply the negative consequences of LT insecurity and directly influence on individual’s rights. For good example, UN-Habitat reports (2010 and 2012)

noted the same results in some cases of countries in Arab region in the Middle East,

Sinha (2002) in the Near East region, and Robert Neuwirth (2007) in Istanbul. In fact, FAO (2007a: p.20) stated that due to the main elements of LT security are often associated with capability of governance, the vulnerability of LT security can be threaten and hindered by weakness of governance and its legal arrangements and the

authority’s organizational performance: “Weak governance may promote inequality as

the rich are able to benefit from the opportunities for self-enrichment while the poor may lose their rights to land and common property resources such as communal grazing areas and forests. The poor who cannot afford the formal legal services are doomed to rely on informal and extra-legal arrangements, becoming effectively excluded from the protection and reach of the law. Politically the consequences can be severe, as grievances may fuel violent conflict”. In general, evidence emphasis these related negative correlations that informal settlements are results of bad/lack of governance, and then it’s failed land policies regarding LT. Yet experiences have shown that those millions of people who occupy illegally because they have no documents, no contracts and little protection under the law, and then they face multiple threats under the constant threat of forced eviction.

It can be suggested that the LT security can link directly with system challenges of providing access to safe the basic services, unsurprisingly, its major negative impacts hit on the vulnerable group and poor’ rights. In this context, it should be noted that there are varied, relevant causes of this disturbing crisis. UN-Habitat report (2008) highlighted in

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details the most selected dominant causes of LT insecurity and the lack/absence of legal protection as a result of wars/post-war circumstances, political conflicts, economic related crisis, and even Natural disasters. Surprisingly, the negative impact can be happened by unexpected resources. The Natural phenomena such as earthquake, hurricanes and landslides are heart-breaking factors that cause enormous damage, miserable situation with the lack of basic services and fatal consequences of LT insecurity, such as the Haiti earthquake in 2010 (Amnesty International report, 2010), the USA city of New Orleans in the post- hurricane Katrina in 2004 (UN-Habitat, 2009). Faced with such influential factors, UN-Habitat reports (2004, 2004b, 2005a, 2010 and 2012) and Ward (2012) have cited multiple examples of such situations from Bangkok,

Bolivia, Colombia, Philippine and Iraq, and UN-Habitat (2010a) in the African Cities,

proving their negative contributions on LT insecurity and users’ rights. In brief, these negative factors are contributing together with human bad planning, the authority efficiency to prompt the insecurity tenure.

In conclusion, consequences of insecurity of tenure can be understood as the objective terms of LT seek to capture these perceptions of security levels, which may extend to the living conditions or other outcomes through city development strategies. In fact, such perceptions are enhanced with scaling-up institutions upgrading programs. Therefore, these land administrative agencies could be other useful indicators of quality of LT security; they highlight the importance of the LT administrative factors that are needed in this research. The next section is therefore dealing with these indicators in term of LAS and LTA.

2.4 LAND TENURE ADMINISTRATION: CONCEPT, AND KEY