Incommensurabilities of the SADC Land Issue and Nozick's Entitlement Theory

2017 ◽  
Vol 25 (3) ◽  
pp. 295-325
Author(s):  
Benedict Abrahamson Chigara

Racialised land ownership in former apartheid-governed states of the SADC remains the most divisive subject particularly between Western states and SADC states themselves. Western states have reacted to the SADC land reform programme (LRP) by imposing severe economic sanctions on target states while SADC states have, in the aftermath of the Campbell decision, suspended the very SADC Tribunal for handing down that decision, pending review of its jurisdiction. Further, SADC states have limited the jurisdiction of the Tribunal to inter-state matters only, shutting the door on individual petitions for any alleged human rights abuses. At the heart of this matter is the issue of contested title to lands that the SADC Tribunal had dealt with in the Campbell case. This article applies Nozick's entitlement theory to determine the question of entitlement as a means of illuminating the incommensurabilities around the SADC land issue. Formalist arguments that are premised on strict and purist positions on either side of these incommensurabilities are weighed under the light of entitlement theory. The article shows that because of its historically multi-layered dimensions, the SADC land issue appears ill-suited to legal formalist arguments that ignore both the historical context of colonialism and forcible expropriation of native titles without compensation.

Author(s):  
Henk J Kloppers ◽  
Gerrit J Pienaar

The need for the current land reform programme arose from the racially discriminatory laws and practices which were in place for the largest part of the twentieth century, especially those related to land ownership. The application of these discriminatory laws and practices resulted in extreme inequalities in relation to land ownership and land use. This article provides an overview of the most prominent legislation which provides the framework for the policy of racially-based territorial segregation. It further discusses the legislative measures and policies which were instituted during the period from 1991 to 1997, aimed at abolishing racially-based laws and practices related to land and which eventually provided the basis to the current land reform programme.


Author(s):  
Ramon Das

This chapter argues that the philosophical debate around humanitarian intervention would be improved if it were less ‘ideal-theoretic’. It identifies two ideal-theoretic assumptions. One, in target states where humanitarian intervention is being considered, there are two distinct and easily identified groups: ‘bad guys’ committing serious human rights abuses, and innocent civilians against whom the abuses are being committed. Two, external to the target state in question, there are suitably qualified ‘good guys’—prospective interveners who possess both the requisite military power and moral integrity. If the assumptions hold, the prospects for successful humanitarian intervention are much greater. As a contrast, some possible non-ideal assumptions are that (i) there are many bad guys in a civil war, and (ii) the good guy intervener is itself supporting some of the bad guys. If these non-ideal assumptions hold, prospects for successful humanitarian intervention are small.


Author(s):  
Henk J Kloppers

In reaction to the unequal land ownership brought about by decades of apartheid, the first democratically elected government embarked on an extensive land reform programme - a programme consisting of the three constitutionally protected pillars: restitution, redistribution and tenure reform. The aim of this programme is not only to provide for restitution to persons who lost their land as a result of racially based measures, but also provide previously disadvantaged South Africans with access to land in order to address the unequal land ownership. This research focuses on the restitution and redistribution pillars of the land reform programme. The progress made in terms of both these sub-programmes has been disappointing. With reference to redistribution the government has set the target to redistribute 30% of white owned commercial agricultural land to black persons by 2014. To date, less than 10% of this target has been achieved and all indications are that the overwhelming majority of land which has been redistributed is not being used productively or have fallen into a state of total neglect. The state of the redistributed land can be attributed to a variety of causes, with the main cause being the government's inability to provide proper post-settlement support to land reform beneficiaries. Against this background it is clear that alternative options have to be identified in order to improve the result of land reform. This article identifies corporate social responsibility (CSR) as one of the missing ingredients in the recipe for a successful land reform programme. The article introduces CSR and discusses the business case for CSR; identifies its benefits; considers its possible limitations; and examines the major drivers behind the notion. From the discussion of these topics it will become evident that an assumption of social responsibility by businesses in especially the agricultural sector might contribute to an improved land reform programme.


Subject The impact of repression in Xinjiang on China's relations with Muslim-majority countries. Significance The silence of Muslim-majority countries in the face of human rights abuses in Xinjiang contrasts with their international activism on behalf of Palestine, Kashmir and the Rohingya minority in Myanmar. Impacts Governments in the more repressive Muslim-majority countries, especially in the Middle East, will censor discussion of the Xinjiang issue. Where public pressure forces the governments of Muslim-majority countries to act, responses are unlikely to go beyond rhetoric. Beijing would not hesitate to use limited economic sanctions to punish Muslim-majority countries that criticise its internal policies.


2020 ◽  
pp. 106591292094159
Author(s):  
Ryan Yu-Lin Liou ◽  
Amanda Murdie ◽  
Dursun Peksen

There is some consensus in the literature that economic sanctions might prompt more human rights abuses in target countries. Yet, the causal mechanisms underlining the sanctions–repression nexus remain little understood. Using causal mediation analysis, we examine the processes through which sanctions might deteriorate human rights conditions. We specifically propose two indirect mechanisms driving human rights violations: increased domestic dissent and reduced government capacity. Sanctions are likely to trigger domestic dissent, and this instability would further induce the government to employ repression. Reduced government capacity caused by sanctions will harm the government’s ability to screen and oversee its security agents, which would subsequently lead to increased human rights abuses. Results from a time-series, cross-national data analysis indicate that sanctions-induced dissent, particularly violent dissent, plays a significant mediating role in the sanctions–repression link. Likewise, we find strong evidence that diminished fiscal capacity triggered by sanctions is likely to result in more repression. There is also some modest evidence that corruption as a proxy for poor governance mediates the sanctions–repression relationship.


2009 ◽  
Vol 53 (2) ◽  
pp. 305-320 ◽  
Author(s):  
Gino J Naldi

AbstractIn its first judgment the South African Development Community (SADC) Tribunal had to determine whether Zimbabwe's controversial programme of land redistribution for resettlement purposes was compatible with the SADC Treaty. The tribunal provided one of the few avenues of redress for farmers deprived of their property without compensation. It held that the land reform programme breached the treaty on the grounds that the property owners had been denied access to the domestic courts, that the applicants had been victims of racial discrimination, and that the state had failed to pay compensation for the lands compulsorily acquired. While the tribunal appears to have reached the right conclusions, its reasoning could have been more persuasive. Of wider significance is the fact that the tribunal has established itself as a forum that can provide relief for human rights violations. Its finding that human rights are justiciable under the treaty is notable.


2020 ◽  
Vol 75 (2) ◽  
pp. 163-178
Author(s):  
Meredith Lilly ◽  
Delaram Arabi

Both the volume of economic sanctions and the reasons for their imposition have increased tremendously around the globe. In this context, several countries, including the United States and Canada, have introduced Magnitsky acts to enable their governments to act unilaterally to impose sanctions against foreign actors for gross violations of human rights and significant acts of corruption. This paper evaluates the legislative changes made to Canada’s sanction regime in 2016–2017 and explores how the new authorities have been applied following implementation (2017–2019). We find that, despite granting the Canadian government new authorities to undertake autonomous sanctions, the country has continued to cooperate with other states as it had done prior to the changes. We conclude that lawmakers never intended for Canada to use the new autonomous capabilities to “go it alone.” Instead, the symbolism represented by Canada taking a strong stance against human rights abuses globally was the driving force behind the Magnitsky Law’s passage.


2019 ◽  
Vol 1 (2) ◽  
pp. 212-236
Author(s):  
Yudha Chandra Arwana ◽  
Ridwan Arifin

Permasalahan sengketa pertanahan di banyak tempat memicu berbagai konflik, baik itu antara kelompok masyarakat, masyarakat dengan pengusaha, atau masyarakat dengan pemerintah. Pada banyak kasus di Indonesia, konflik agrarian sangat berkaitan erat gagalnya pemenuhan hak-hak warga oleh pemerintah, baik pada tingkat lokal daerah maupun nasional. Kepemilikan tanah dan kepastian hukum dalam permasalahan agrarian di Indonesia mengacu dan merujuk pada Undang-Undang No. 5 Tahun 1960 tentang Peraturan Dasar Pokok-Pokok Agraria (UUPA). Reformasi Agraria (Landreform) menjadi salah satu bentuk implementasi undang-undang tersebut, termasuk perubahan struktur penguasaan pemilikan tanah yang tidak hanya dimaknai sebagai makna politik namun juga teknis. Tulisan ini menganalisis aktivitas landreform di Indonesia dalam kajian hak asasi manusia, termasuk proses penyelesaian sengketa pertanahan. Metode yang digunakan dalam tulisan ini yuridis normatif, dimana kajian hanya meliputi norma dan dasar hukum yang digunakan dalam penyelesaian sengketa agrarian dalam berbagai kasus. Kasus yang digunakan dalam penelitian ini bukan hasil penelusuran lapangan secara langsung, namun kasus-kasus yang sudah pernah terjadi di berbagai daerah yang diperoleh melalui media cetak atau online. Tulisan ini menegaskan bahwa proses penyelesaian sengketa agraria pada banyak kasus di Indonesia belum memenuhi standar pemenuhan hak asasi manusia, seperti adanya upaya paksa dan tindak kekerasan dari pemerintah, sikap refresif, diskriminatif, dan intimidatif. Tulisan ini menggarisbawahi dan menyimpulkan bahwa dalam penyelesaian konflik agraria dalam kajian hak asasi manusia harus melibatkan banyak pihak, salah satunya Komnas HAM.Land disputes in many places trigger various conflicts, whether between community groups, communities and entrepreneurs, or communities with the government. In many cases in Indonesia, agrarian conflict is closely related to the failure of the fulfilment of citizens' rights by the government, both at the local and national level. Land ownership and legal certainty in agrarian issues in Indonesia refer to and refer to Law No. 5 of 1960 concerning Basic Agrarian Principles Regulation (UUPA). Agrarian reform (Land Reform) is one form of implementation of the law, including a change in the structure of ownership of land ownership which is not only interpreted as a political but also a technical meaning. This paper analyse the activities of land reforms in Indonesia in the study of human rights, including the land dispute resolution process. The method used in this paper is normative juridical, where the study only covers the norms and legal basis used in agrarian dispute resolution in various cases. The cases used in this study are not direct field search results, but cases that have already occurred in various regions were obtained through print or online media. This paper emphasizes that the agrarian dispute resolution process in many cases in Indonesia has not met the standards of fulfilment of human rights, such as the existence of forced efforts and acts of violence from the government, repressive, discriminatory and intimidating attitudes. This paper underlines and concludes that the resolution of agrarian conflicts in the study of human rights must involve many parties, one of which is the National Human Rights Commission.


Author(s):  
Godswill Makombe

After independence, South Africa embarked on a land reform programme that is meant to redress the highly inequitable land ownership which resulted from Apartheid. The programme comprises land redistribution, land restitution and land tenure. On restitution projects, the maintenance of production has been highly problematic. Loss of production means there is very little or no livelihoods impacts from restitution. The beneficiaries of restitution projects usually have neither farming experience nor capital to continue or restart the farm operations. As a result, most restitution projects are either non-functional or are functioning at a meager fraction of previous levels. Most studies on restitution have been carried out by studying the beneficiaries but not previous owners. I use the social constructivist paradigm to explore personal experience through engagement using the interview as a data collection tool. I explore the perspectives of a previous land owner who provides insights into how the restitution programme could be made more successful by letting a conversation occur between the previous owners and beneficiaries. I posit that it is essential to include the previous owners to reduce the trauma from loss of their lifestyle while also reducing beneficiaries’ trauma caused by lack of benefits from restitution.


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