Urban Law and the New Urban Agenda
01 November 2016
This post was written for the Urban Law Center.
Much has been written & tweeted about the New Urban Agenda. This is a document which was adopted last month in Quito at the Habitat III conference, a United Nations gathering of member states concerned about addressing the challenges and harnessing the opportunities inherent in cities today.
I was fortunate enough to attend Habitat III as a fellow of Fordham University’s Urban Law Center, and I have been involved in the Habitat III process for over a year as an expert in the first policy unit on the ‘Right to the City and Cities for All.’ The New Urban Agenda has many positive elements to it, but as I highlight in this post, urban law will be critical in enacting its vision — otherwise it risks remaining mere rhetoric.
The New Urban Agenda anchors its vision on ‘cities for all’, which is understood as “referring to the equal use and enjoyment of cities and human settlements, seeking to promote inclusivity and ensure that all inhabitants, of present and future generations, without discrimination of any kind, are able to inhabit and produce just, safe, healthy, accessible, affordable, resilient, and sustainable cities and human settlements, to foster prosperity and quality of life for all” (NUA, para 11).
Urban law plays an important role in this regard for two reasons. First, it facilitates effective and coherent governance, which is necessary, for example, for the delivery of urban services (housing, water, etc.) to inhabitants. This creates certainty from a governance point of view insofar as it delineates the powers, functions, and responsibilities of different levels, arms, or agencies of government. It also creates a level of efficiency in responding to the needs of cities and inhabitants. As the mayor of Freetown, Sierra Leone noted at a Special Session on Urban Rules & Legislation at Habitat III, this need can be particularly acute in times of urban crises.
Second, law provides a tool which can and is used in redressing many of the spatial injustices that the New Urban Agenda seeks to address. These include, for instance, tenure insecurity, gentrification, and forced evictions.
The New Urban Agenda is a fairly lengthy and bulky document, and contains many commitments, acknowledgements, recognitions, and reaffirmations. If member states are truly committed to the ethos behind the New Urban Agenda, it will be critical that they study the minutia of the text, seeking out ways in which law (in addition to policy) can embody the Agenda. It is equally critical that ordinary inhabitants — me, you, civil society, academia — embark on a similar exercise, pushing our own governments to enact laws that give meaning to the New Urban Agenda.
This is an imperative as it moves beyond the rhetoric, and avoids another 20-year period in which very little is done to realize the commitments made. We saw this with the last Habitat conference, held in Istanbul in 1996. According to the Global Urban Futures Project’s Habitat Commitment Index, “in the 20 years since Habitat II, progress towards meeting the goals set forth in the Istanbul Declaration has been in many ways disappointing” (HCI, 48). “Though some countries have made commendable advancements, such as Turkey, Portugal, and Tanzania, progress for much of the world has been small or negligible, and most worrisome, the performance of a number of countries has even declined.” (HCI, 48).
So, how can we use the law to ensure we do not repeat this? In the next part of this post, I consider three ways in which the law is able to provide a potentially effective tool in making real the ethos behind the New Urban Agenda.
I do not make any assumptions on the efficacy of these measures (laws, too, face the danger of remaining mere rhetoric), but I briefly demonstrate these tools as only one way of giving effect to the New Urban Agenda.
Similarly, I do not make any assumptions regarding the efficacy of the institutions required to give these tools meaning — this includes a spatially-aware judiciary, as well as an active and well-resourced civil society able to mobilize and represent ordinary people in utilizing these tools.
My three considerations are…
- Tenure Security:
In the New Urban Agenda, member states “commit to promote, at the appropriate level of government… increased security of tenure for all, recognizing the plurality of tenure types, and to develop fit-for-purpose, and age-, gender-, and environment-responsive solutions within the continuum of land and property rights…” (NUA, para 35).
Tenure is important because of the way it protects against unlawful evictions. In de-emphasizing a market-based approach to property ownership, tenure security points to a more user-based understanding of land possession. It gives protection to this possession through tenure regularization. Although tenure regularization should not be seen as a ‘silver bullet’ in addressing the needs of informal settlements (in fact, urban services should be the priority here), it nevertheless is a way of valorizing the role of informal settlements in housing communities and, in particular, the urban poor.
We may want to look here at the experiences of Namibia in enacting the Flexible Land Tenure Act 142 of 2012 which, among other provisions, aims to provide security of title for persons who live in informal settlements through tools such as Starter Title Rights. Starter Title Rights grant a holder rights that include erecting a dwelling on a piece of land, even though they may not necessarily have ‘ownership’ rights to.
In the New Urban Agenda, member states aim at working towards “avoiding spatial and socio-economic segregation and gentrification…”
Gentrification is arguably one of the greatest challenges facing many cities characterized by a dominant property market. Its effects are well-documented (herewith is merely one article utilizing evidence to understand the impact of gentrification) and pertain mostly to dispossession and displacement.
Accordingly, it is important that measures are taken to control the property market so as to ensure people are not priced out of areas that hold a certain significance to them, be it proximity to a job and educational opportunities, cultural heritage, etc.
We may want to look here at the experiences of Brazil in enacting the City Statute №257 of 2001 (the link provided contains a commentary and an English translation of the Statute). The Statute contains a range of instruments which collectively seek to control the manifestations of a rampant and uncontrolled property market. This includes, for example, a right of pre-emption which a local authority can exercise in respect of the sale of land between two private parties. It is exercised when the local authority has determined it needs land for the likes of a social housing program, or public leisure spaces and green areas. The right permits the local authority to purchase the property either at the price determined by the local parties or at an appraised base value of a progressive property tax (called the IPTU), which is a percentage of the market value of the property.
In this way, although the City Statute does not discard the property market in its entirety, it nevertheless provides for a control on a property market which is largely blind to broader social concerns, such as public housing, or accessible public space, and which motive is profit-based. This, of course, has the ability to exclude those unable to buy into this market.
- Forced Evictions:
Finally, the New Urban Agenda calls in three different places for the need to prevent “arbitrary forced evictions” (NUA, paras 31, 107, and 111). This language is puzzling because, surely, a forced eviction is arbitrary because it takes place without recourse to the law? The language suggests too a somewhat more sinister motive — that ‘forced evictions’ can legitimately be legislated for. The call is also a regressive commitment compared to the Istanbul Declaration, which called (correctly) for an end to “forced evictions” (Istanbul Declaration, para 49).
As such, it would be wise for us to ignore the ‘arbitrary’ part of the need to prevent forced evictions, particularly given the broader ethos of the New Urban Agenda. Rather, we should look at the example of South Africa in enacting the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act (‘PIE’) Act 19 of 1998. This Act sets out an easy-to-understand and clear procedure regarding how a landowner may go about enacting a lawful eviction, and what factors a court of law should consider in deciding whether to grant that eviction order, including whether alternative land can be made available by a state authority in the event that the eviction may lead to homelessness.
There are many more ways in which law (or policy, or executive action) can give effect to the vision of the New Urban Agenda, and it is important to consider these ways because, if we don’t, the #NewUrbanAgenda will leave a legacy reduced to a mere hashtag.