Beneficiary identification and land rights

1. 30 mins Beneficiary identification and land rights Southern Africa, 2008 This session looks at the purpose, advantages and process of beneficiary identification, and the issues of land rights and protection during transitional settlement and reconstruction

2. Session objectives • The key learning objectives of this session are to form an • understanding of: • 1. Beneficiary selection and vulnerability • Land rights and protection during transitional settlement and transitional reconstruction

3. Session objectives • The key learning objectives of this session are to form an • understanding of: • 1. Beneficiary selection and vulnerability • Land rights and protection during transitional settlement and transitional reconstruction

4. Purpose of beneficiary identification • For beneficiary identification, governments and humanitarian organisations need a defined and agreed acceptance criteria based on need and vulnerability. • The purpose of beneficiary identification is to determine the type and level of support required in transitional settlement and reconstruction, by understanding: • who has been impacted, to determine the scale of response • how they’ve been impacted, to determine the priorities of response • their needs and vulnerability, to determine the nature of response • their legal rights, such as land tenure, to determine how they may be assisted

5. Beneficiaries:transitional settlement • Accurate beneficiary identificationtransitional • settlement is vital to the provision of support • When identifying beneficiaries consider: • dispersed options • beneficiaries may be indistinguishable • from the host population • rural and urban self-settlers may have • different rights from existing informal settlers • grouped options • may or may not be easier to distinguish from • the host population • beneficiaries may be indistinguishable • from combatants Host family Urban self-settlement Rural self-settlement Collective centres Self-settled camps Planned camps

6. Beneficiaries: transitional reconstruction • In transitional reconstruction, the rights of beneficiaries must be determined before assistance may be given • In numerous circumstances, tenants and occupants with no legal status: • are omitted from beneficiary lists • are included as beneficiaries in transitional settlement but not transitional reconstruction • are often the most vulnerable and least able to return to sustainable livelihoods • There have been few circumstances where landlords have been included as beneficiaries of assistance to their rental properties • The rights of owner-occupiers are often the most straight-forward to determine Occupant with no legal status House tenant Apartment tenant Land tenant Apartment owner-occupier House owner-occupier

7. Beneficiaries may move between options See session ‘implementing settlement programmes’ • Beneficiary assessment and land use will need to continually monitored and reviewed • as displaced populations move between transitional settlementoptions over time • as non-displaced populations move to different transitional reconstruction options

8. Beneficiaries:benefits of identification • Beneficiary identification, through consistent and continuous • assessment, monitoring and evaluation of population size, damage • levels and needs, will benefit the affected population by: • providing protection and conferring or confirming legal status of the beneficiary • providing appropriate and equitable assistance • - provides equivalent assistance to beneficiaries in all options • - provides assistance that meets national & international • standards • providing information in relation to their rights to transitional settlement and reconstruction options, and restitution support options • providing access to representation andcomplaints mechanisms

9. Beneficiaries:benefits of identification • The beneficiary identification process offers opportunities to: • understand the priorities and resources of the beneficiaries • begin the process of recording transitional reconstruction options, including land tenure and cadastral records • understand better the movement of people between transitional settlement and reconstruction options • support the response of all sectors of operation

10. Beneficiaries:vulnerable groups Within the beneficiary selection process, criteria for identifying vulnerable beneficiaries must be developed with each response Vulnerable groups and individuals should be considered in every step of beneficiary identification, planning and implementation Vulnerable groups and individuals may have difficultiesin expressing their opinions and may need additional support

11. Beneficiaries:vulnerable groups • Vulnerable groups and individuals may include: • minority groups – for example, if hosted in a community that is unfamiliar with their culture • women – for example, if displaced with no social protection • children – for example, if orphaned • the elderly – for example, if not living with extended family • Methods for involving vulnerable groups include: • identifying existing social groups and networks • holding focus groups for minority groups • offering training • holding meetings in a variety of locations • holding meetings at times of day most suited to them

12. Beneficiaries:process of identification • The type of assistance required is determined by: • which option they were living in pre-disaster • which transitional settlement or reconstruction option they are currently in or will be moving to • The level of assistance required is determined by: • their vulnerabilities • the level of damage to their accommodation • their capacities and resources • which transitional reconstruction option they are moving to

13. Beneficiaries:process of identification The government is responsible for assessment, monitoring and protection of beneficiaries • The beneficiary identification process must be: • ongoing • coordinated with assessment, monitoring and evaluation • part of regular strategic review

14. Beneficiaries:checklist for identification • A checklist of 10 activities may inform the process of • beneficiary identification: • 1. agree a strategy for beneficiary identification • 2. agree criteria for beneficiary identification • 3. agree criteria for group and individual vulnerability • 4. communicate strategy and criteria to the population • 5. interview the affected population • 6. announce preliminary beneficiary list • 7. over an agreed period, support a complaints procedure • 8. select beneficiaries • 9. publish the beneficiary list • 10. review and repeat

15. Session objectives • The key learning objectives of this session are to form an • understanding of: • 1. Beneficiary selection and vulnerability • Land rights and protection during transitional settlement and transitional reconstruction

16. Land rights and protection • Principles of land rights and protection for populations in • transitional settlement and transitional reconstruction: • Protection for all • Settlement, return, and resettlement must be voluntary • Alternative options supported • Movement between options supported • Property restored and support for tenants • Opportunity to engage in participation • Vulnerable minority groups represented • Governments responsible for systems and procedures • Humanitarian community provide support with technical expertise and capacity

17. #1 Protection unhchr.ch Transitional settlement and reconstruction form the foundations to the protection of families and communities impacted by conflict and natural disaster • “1. no one shall be subjected to arbitrary or unlawful interference with his privacy, home or correspondence, nor to unlawful attacks on his honour or reputation • Everyone has the right to the protection of the law against such interference or attack” • Article 17, International Covenant on Civil and Political Rights, 1976

18. #2 Voluntary displacement Transitional settlement: displaced populations (Corsellis and Vitale, 2005) cohre.org In each transitional settlement option, from host families to camps, both refugees and IDPs must be protected from being forcibly displaced again “States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction. States shall ensure, in cases where evictions of such occupants are deemed justifiable and unavoidable for the purposes of housing, land and property restitution, that evictions are carried out in a manner that I compatible with international human rights law and standards, such that secondary occupants are afforded safeguards of due process, including an opportunity for genuine consultation, adequate and reasonable notice, and the provision of legal remedies, including opportunities for legal redress.” Para 17.1, Pinheiro Principles, 2005

19. #2 Voluntary displacement: right to return cohre.org Displaced populations have the right to return to their homes and must be offered timely and appropriate information on their settlement options • “All refugees and displaced persons have the right to return • voluntarily to their former homes, lands or places of habitual • residence, in safety and dignity. Voluntary return in safety and • dignity must be based on a free, informed, individual choice. • Refugees and displaced persons should be provided with complete, • objective, up-to-date, and accurate information, including on • physical, material and legal safety issues in countries or places of • origin.” • Para 10.1, Pinheiro Principles, 2005

20. #2 Voluntary displacement: not to return cohre.org Return must be voluntary. Resettlement should be supported, where agreed. Displaced populations should not be forced to return. “Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence. Refugees and displaced persons should be able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property.” Para 10.3, Pinheiro Principles, 2005

21. #3 Support alternative options cohre.org If a transitional settlement option selected by refugees or IDPs is not supported, for example, because it is hazardous, alternative options must be identified “In cases where evictions of secondary occupants are justifiable and unavoidable, States should take positive measures to protect those who do not have the means to access any other adequate housing other than that which they are currently occupying from homelessness and other violations of their right to adequate housing. States should undertake to identify and provide alternative housing and/or land for such occupants, including on a temporary basis, as a means of facilitating the timely restitution of refugee and displaced persons’ housing, land and property. Lack of such alternatives, however, should not unnecessarily delay the implementation and enforcement of decisions by relevant bodies regarding housing, land and property restitution.” Para 17.3, Pinheiro Principles, 2005

22. #4Movement between options See sessions ‘transitional settlement options’ and `transitional reconstruction options’ cohre.org Over the period of return, affected families have the right to move to different transitional settlement and reconstruction options. They should not be penalized in any way for moving, and instead should be supported in their choices “Everyone has the right to freedom of movement and the right to choose his or her residence. No one shall be arbitrarily or unlawfully forced to remain within a certain territory, area or region. Similarly, no one shall be arbitrarily or unlawfully forced to leave a certain territory, area or region.” Para 9.1, Pinheiro Principles, 2005

23. #5 Property restored Transitional settlement and reconstruction after natural disasters (United Nations, 2008) cohre.org Transitional reconstruction support to each affected family must be decided in a transparent manner, with an appeals procedure Affected families qualify for restitution support even if reconstruction cannot occur on the original site, for example the site is hazardous “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.” Para 2.1, Pinheiro Principles, 2005

24. #5 Property restored: protection Handbook for the Protection of Internally Displaced Persons (Global Protection Cluster Working Group, 2007) cohre.org Displacement can be a cause of deprivation of land, homes and other property. Efforts must be taken to address land rights as part of the protection of those who are in displacement “Forced displacement often leads to the loss of land, homes and other property with serious consequences for individuals and communities, who as a result are deprived of their main source of physical and economic security...It is important that efforts to address deprivation of land and property form part of the protection response during all stages of displacement.” Handbook for the Protection of Internally Displaced Persons, 2007

25. #5 Property restored: support for tenants See session ‘transitional reconstruction options’ cohre.org Restitution support packages must be developed for transitional reconstruction options without full title to land and property, for example those renting “States should ensure that users of housing, land and/or property, including tenants, have the right to participate in the restitution claims process, including through the filing of collective restitution claims.” Para 13.6, Pinheiro Principles, 2005 States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights.” Para 13.6, Pinheiro Principles, 2005

26. #6 Participation See session ‘participation’ cohre.org The design of all aspects of transitional reconstruction must express the needs of affected families and communities, through engaging them proactively in participation “States and other involved international and national actors should ensure that voluntary repatriation and housing, land and property restitution programmes are carried out with adequate consultation and participation with the affected persons, groups and communities.” Para 14.1, Pinheiro Principles, 2005

27. #7 Vulnerable minority groups Handbook for Emergencies (UNHCR, 2007) cohre.org Special attention must be given to vulnerable minority groups “States and other involved international and national actors should, in particular, ensure that women, indigenous peoples, racial and ethnic minorities, the elderly, the disabled and children are adequately represented and included in restitution decision- making processes, and have the appropriate means and information to participate effectively. The needs of vulnerable individuals including the elderly, single female heads of households, separated and unaccompanied children, and the disabled should be given particular attention.” Para 14.2, Pinheiro Principles, 2005

28. #8 Government responsibility cohre.org Governments are responsible for the transitional settlement of displaced populations regardless of the options they choose, for example whether affected families are living in host families or camps “States should adopt positive measures aimed at alleviating the situation of refugees and displaced persons living in inadequate housing.” Para 8.2, Pinheiro Principles, 2005

29. #8 Government responsibility:cadastres cohre.org Government is responsible for establishing and maintaining systems for recording title over land, land rights and land use “States should establish or re-establish national multipurpose cadastral or other appropriate systems for the registration of housing, land and property rights as an integral component of any restitution programme, respecting the rights of refugees and displaced persons when doing so. Para 15.1, Pinheiro Principles, 2005 “States should ensure that any judicial, quasi-judicial, administrative or customary pronouncement regarding the rightful ownership of, or rights to, housing, land and/or property is accompanied by measures to ensure registration or demarcation of that housing, land and/or property as is necessary to ensure legal security of tenure. These determinations shall comply with international human rights, refugee and humanitarian law and related standards, including the right to be protected from discrimination. Para 15.2, Pinheiro Principles, 2005

30. #8 Government responsibility:systems cohre.org It is the responsibility of government to establish and maintain procedures for displaced populations to claim restitution, including ensuring that affected families have adequate access to claims centres and can understand and use the procedures “States should seek to establish restitution claims-processing centres and offices throughout affected areas where potential claimants currently reside.” Para 3.5, Pinheiro Principles, 2005 “States should develop restitution claims forms that are simple and easy to understand and use and make them available in the main language or languages of the groups affected. Competent assistance should be made available to help persons complete and file any necessary restitution claims forms, and such assistance should be provided in a manner that is age and gender sensitive.” Para 13.7, Pinheiro Principles, 2005

31. #9Role of humanitarian community cohre.org The international community must offer support to the government in its responsibilities with expert technical guidance and capacity. When absolutely necessary, and only upon specific request, the international community may take on some responsibilities • “The international community should promote and protect the • right to housing, land and property restitution, as well as the right • to voluntary return in safety and dignity.” • Para 22.1, Pinheiro Principles, 2005 • “International organizations should work with national Governments • and share expertise on the development of national housing, land • and property restitution policies and programmes and help ensure • their compatibility with international human rights, refugee and • humanitarian law and related standards. International • organizations should also support the monitoring of their • implementation.” • Para 22.3, Pinheiro Principles, 2005

32. Discussion Discussion in groups In groups, agree a case study operational that one of your has been involved with, select a transitional reconstruction option, and play the role of an affected person What are your rights? What are your needs? How can governments and humanitarian agencies provide appropriate support? Occupant with no legal status House tenant Apartment tenant Land tenant Apartment owner-occupier House owner-occupier

33. Summary This session covered the following key learning points: • 1. Beneficiary selection and vulnerability • Land rights and protection during transitional settlement and transitional reconstruction