The Legality of Illegality and the Illegality of Legality

ABSTRACT

The principle aim of this paper is to explore some issues of law covered in the first three heads of the draft background paper. Issues of the role and place of the law in developing or confirming 'informal' systems of urban tenure are not very much discussed in the literature. The starting point here is the Istanbul Declaration and Habitat Agenda and the Global Plan of Action adopted at the UN City Summit in June 1996. They provide the international policy and legal context for any review of laws and practices relating to informal settlements.

If one were to sum up the principal message of the Habitat Agenda, it is that while a strategy of enablement is to be the preferred mechanism for providing access to land and ensuring security of tenure, the role of governments does not stop at enabling land markets to operate efficiently and transparently, important though these matters are. Governments must also direct their attention to considerations of equity in the operation of land markets. Both the Agenda and the GPA lay considerable stress on the use of the law to develop appropriate systems of land management. The Habitat Agenda takes the position that a legal framework must be developed that accommodates the needs of the urban poor; leaving them out and continuing the dual city - the legal and the illegal - is not an option

What have been the blockages hitherto that have prevented governments adopting these standards and developing appropriate laws for secure tenure especially in relation to informal settlements? The present systems of land allocation and use in the cities benefit the urban elite. The urban elite either run or have influence over the government of the cities and indeed the national governments which usually have a significant role in urban land management and manipulate the law for their benefit. An important issue here is the whole notion of 'illegality' for it is this concept which is used as the basic justification of city governments for the demolition of informal settlements. Too many countries still approach issues of urban land management in these terms. Rather than legal and illegal, it is better to think of urban land laws as having two intersecting circuits; the formal and the informal.

What general themes seem to run through successful attempts at informal tenure reform? First, in place of politico-bureaucratic decisions about land taken in secret, greater reliance is placed on open and market-orientated decisions. Second, there is a clear move away from the centralised state-dominated approach to the development of more local systems of land allocation and use. Third, a notable feature of the more successful cases is the care taken by governments to consult with and take account of the views of the users of the system - land developers, residents' associations, customary title holders, squatters, etc. A fourth general theme is that of flexibility in implementation. Fifth, a strong characteristic of informal settlements is their reproduction of basic elements of the formal legal systems.

In the last few years of the 20th century, there were encouraging signs that urban planners and policy makers together with inputs from those concerned with developing national land policies had begun to bite the bullet and develop legal regimes at the formal national level which aimed to develop legal regimes for regularising informal settlements which would provide security of tenure for the urban poor, thus meeting a key requirement of the Habitat Agenda. Examples from the author's practical experiences will be drawn on.

ESF/N-AERUS: International workshop - Leuven and Brussels, Belgium, 23-26 May 2001

N-AERUS: Network-Association of European Researchers on Urbanisation in the South
http://www.naerus.net