“There is perhaps too much law already but overall there is not enough change on the ground. We need to ask how we can bring about that change.”
“We need to move away from theoretical quandaries and actually do stuff and, if necessary, work our way out of problems. We are not doing enough. You can moderate property rights and redesign them as you go. We might arrive at workable solutions by trying and we should not worry about making mistakes.”
This is the view of Balakrishnan Rajagopal of the Department of Urban Studies and Planning at the Massachusetts Institute of Technology who presented the first STIAS seminar of the semester on some of the current legal and other challenges posed by the crisis of forced population displacement. Rajagopal is Associate Professor of Law and Development, head of the International Development Group at his department at MIT, founding Director of the Program on Human Rights and Justice and founding director of the Displacement Research and Action Network.
STIAS Fellow Balakrishnan Rajagopal during his seminar presentation on 26 July 2018
He pointed out that both the reasons for and effects of displacement are changing and therefore the solutions must change as well.
“Displacement has emerged as a huge concern in many parts of the world – whether we are talking about refugees or internally displaced persons – there is no doubt that these movements bring political and economic consequences.”
Rajagopal highlighted that types of displacement are no longer distinct and are happening for different reasons. Beyond well-known causes like war and conflict, forced displacement is now happening due to increasing urbanisation (currently led by Africa), every-day development projects, and climate change which can make land uninhabitable. Within countries the gentrification of inner-city areas may also cause displacement of long-standing communities.
And even traditional refugee situations like that in Syria are playing out differently. “Instead of refugee camps run by international organisations,” he said, “they now diffuse into cities which causes new challenges.”
And law has played multiple roles in these processes.
“One of the most significant aspects of displacement and eviction research is the increasing recognition of the centrality of law, both as a structure that generates dispossession and displacement from land, and also as a terrain of resistance relied on by displaced communities.”
“Law has played a dual function, he said, “both generating the displacement and functioning as a resource for the dispossessed.”
“We need to understand how law shapes and enables – by both providing the tools and the framework. These developments mean we may need alternative ways of thinking about property, land governance and fixed geographical categories – we may need to consider alternatives to borders and boundaries.”
“We also need to understand the role of social movements in shaping law,” he added. “Human rights law, in particular, needs to be more grounded in the politics of social mobilisation.”
Rajagopal outlined some of the relevant international legal norms and conventions. These are mostly generated by international organisations and address issues from land tenure to property rights to human rights. Most aim to reduce dispossession and increase socially responsible investment.
“But,” said Rajagopal, “much of this is so-called ‘soft law’ – is not actually enforceable and many major countries are not party to them and can and do ignore them.”
“Individuals affected by dispossession can seek redress through laws in western countries like the US or UK, but there are lots of barriers to the use of these,” he added.
National and local laws regarding displacement are usually framed in terms of constitutional, private and planning law.
“The key points of tension currently in this area revolve around the potential and possibilities of a rights-turn in legal form – including through international human rights law and domestic constitutional jurisprudence – and their relation to property and economic development.”
Going to the courts
“In South Africa, specifically, there have been high-profile cases including Grootboom and Joe Slovo as well as the ongoing Marikana case in the Western Cape, which have been about the obligations and limitations of the government regarding the right to housing and the rights of property owners,” he continued. “In these and other cases the courts have been forced into the role of governance.”
“In South Africa, as in many large countries in the global south such as India, if you want something done you tend to go to the courts. There is a blurring of lines between the executive, legislature and the judiciary, with the courts taking on the role of what I call judicial governance. This is often unavoidable but it can do damage in the long term because courts are not elected institutions and there’s always a danger of putting all eggs in one basket.”
“Law is semi-autonomous – autonomous but embedded – and that means, for example, that you can’t understand the law in South Africa without understanding apartheid. Law seeks to influence the society in which it is embedded even as it is influenced itself by the society.”
“When it comes to South Africa we have to ask why a progressive constitutional vision of social rights yielded so little? I believe it’s largely because of the mismatch between political economy and the constitutional vision – between the model of economic development (and property relations) and the rights provisions.”
Rajagopal is hoping his research on displacement and law will unpack the lessons to be learnt from different countries and is specifically looking at South Africa, India, Brazil, Colombia and the United States.
“I’m hoping to understand how the law deals with the different ways in which occupation and displacement are transforming property relations – will law help or not, is it too much or too little?”
“Obviously this is a hugely important topic in South Africa right now as the country debates what is just compensation for land expropriation and, indeed, if there should be compensation at all.”
“It’s about overcoming the legacy of the past but also understanding the pull of the future.”
Rethinking and reframing
Rajagopal also highlighted some of the action-oriented research being done at MIT. This includes the work done through the Displacement Research and Action Network – a platform for scholars, researchers, policy advocates, local governments, civil society groups and social movements to collaborate; a research project on displacement crisis generated by the return of large hydro projects; a report on a survey of better housing practices for urban IDPs; a comparative project which looks at case studies of land acquisition laws and practices in selected countries; the development of a displacement impact-assessment tool which involves work with communities in Boston to co-create data; and a project that has documented nearly 30 years of evictions and displacements in Delhi which “has uncovered a caste discrimination dimension to the evictions – basically urban apartheid – as well as a link to so-called geo-economic imperatives like the 2010 Commonwealth Games,” said Rajagopal.
“The work focuses on the implementation and realisation challenges of human rights and on learning by doing,” he continued.
“It’s time to focus on implementation. We have to move away from just critiquing and get our hands dirty by engagement and embeddedness in practices including those of social movements.”
“There is a cognitive gap – we are limited by the way we think. The task is to re-orientate our thinking and, importantly, to not be afraid to say when the law is at fault or is not enough”, he added.
Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw