A Legal Standard for Post-Colonial Land Reform

Author:Amelia Chizwala Peterson
Position:J.D., LL.M (Natural Resources, Energy & Environment)
Pages:21-28
 
CONTENT
212012–2013
A LEGAL STANDARD FOR POST-COLONIAL LAND
REFORM
by Amelia Chizwala Peterson*
[T]he increase of lands, and the right employing of
them, is the great art of government: and that prince,
who shall be so wise and godlike, as by established
laws of liberty to secure protection and encouragement
to the honest industry of mankind, against oppression
of power and narrowness or party, will quickly be too
hard for his neighbor…”
—John Locke1
We live in a world of globalizing processes that impose
particular limitations on any one State’s capacity to do
as it pleases under the cloak of sovereign independence,
particularly in economic and human rights matters.
—Ben Chigara2
INTRODUCTION
The violent land redistribution program of a small sub-
Saharan country made international headlines twelve
years ago before quickly bowing off the world stage.3
Thousands of violently displaced Zimbabwean farmers were
forced to settle into new lives in neighboring African countries,
either as refugee immigrants or as hopeful exiles holding on to a
desire that they would one day resume their livelihood as farm-
ers in their home country.4 The agrarian economy they once sup-
ported had crashed and hundreds of thousands of workers were
displaced.5 Today, a grave, unaddressed question lingers in the
psyche of our ordered society—what happens to property rights
in the context of post-colonial land redistribution?
Post-colonial land reform is a necessity,6 but its design and
implementation invoke questions about the bounds of govern-
ment authority to reshape the idea of the individual right to
property, an issue traditionally left to domestic governance under
the principles of sovereignty.7 Over the last decade, scholars
scathingly condemned Zimbabwe’s fast track land reform, citing
violations of human rights and property law.8 Yet, property rights
in the context of post-colonial land redistribution have never
been fully articulated,9 and no comprehensive standard has been
offered to appraise post-colonial governments’ land reform poli-
cies, which are constrained by international norms.10
This article identifies a conceptual gap in the traditional
(both classical and customary) justifications for property rights
in the context of correcting colonially established land imbal-
ances, and proposes a legal standard based on five core elements
extracted from human rights law and universally accepted
international norms concerning property. To be legal under
international norms, a land reform policy must: (1) stem from
a legitimate public purpose; (2) be in accordance with law;
(3) be proportional to the public purpose; (4) guarantee a non-
discriminatory right to own land; and (5) compensate incumbent
landowners where elements of the formula are violated.11 The
land reform formula proposed here is grounded in first genera-
tion civil and political human rights, making it a practical stan-
dard for any country to adopt, regardless of its level of economic
and institutional development.
Land rights are not directly protected as human rights,
although they are occasionally mentioned by human rights
instruments.12 The bulk of human rights law establishes no
other criteria in order for a claimant to qualify as an intended
beneficiary of the law; protection of rights attaches simply by
virtue of the claimant being human.13 However, while many
intuitively believe that both those who have enjoyed access to
property rights in land and those who have been marginalized
and prevented by law from enjoying those rights should have
some protected property rights under the new regime, the nature
of the right—particularly the property rights of the group that
benefitted from exclusionary property laws—seems difficult, if
not uncomfortable, to articulate.
Part I of this article introduces modern post-colonial land
reform and the idea of property as it relates to land reform by
tracing both classical and customary theories of property. The
Zimbabwe land reform platform, commenced in the late 1990s,
presents a relatively recent example of policy-driven land redis-
tribution.14 Part II examines international law concerning prop-
erty and land rights to demonstrate that land reform is captured
by the body of human rights law which addresses procedural
rights—first-generation, or civil and political (“CP”) rights. Part
III presents the confluence of CP rights principles, provisions on
property in human rights, and judicial interpretations of the idea
of property, which together establish the legal standard proposed
here—the outer bounds of the power of sovereigns to reform
property rights in land post-colonization.
Articulating the legal bounds of land redistribution is more
critical today than it ever was.15 The legal standard proposed
here is aimed at: (1) protecting the universal idea of property;
(2) advancing the right and capacity of post-colonial govern-
ments to develop land as a natural resource; and: (3) providing a
clear skeletal framework for legally and morally justifiable land
* Amelia Chizwala Peterson, J.D., LL.M (Natural Resources, Energy & Environ-
ment). Senior Research Associate, Governors’ Climate and Forests Task Force
(GCF), University of Colorado Law School.
22 SUSTAINABLE DEVELOPMENT LAW & POLICY
reform for those regions of the world contemplating wide-scale
land transfer programs.
I. THEORETICAL FOUNDATIONS FOR POST-COLONIAL
LAND REFORM
Agrarian nations with a history of colonization are on the
verge of imploding under the weight of unaddressed or poorly
addressed needs for land reform.16 Land acquisition and redistri-
bution have received little attention from international scholars,
and yet they arguably pose the most direct threat to develop-
ment for post-colonial States. In 2004, Ben Chigara framed the
Southern Africa Development Cooperation (“SADC”) land con-
flict as an issue which threatens social, political and economic
disintegration of some SADC member States and destabilization
of the region as a whole.17 This need for careful resolution of
post-colonial land issues is not unique to sub-Saharan Africa.18
Latin America and Asia are also grappling with land reform
issues.19 The justifications for land reform are primarily social,
economic and political and include, inter alia: the need to right
historical wrongs; the need to rationalize distortions in land rela-
tions, particularly in regards to tenure and distribution; the need
to resolve internal conflicts arising from inefficiencies within the
existing tenure relations; and the desire to “modernize” indig-
enous tenure as a means of stimulating agrarian development.20
The re-appropriation of land and the idea of property rights
could not be more adverse to each other. Regardless of its neces-
sity, land redistribution stands in opposition to ideas rooted in
classical theories of property and customary law, which, to vary-
ing degrees, conceptualize property as an individual or common
right to own, hold or use land to the exclusion of all others.21
Neither classical theories nor customary rights approaches to
property anticipate the modern need to legitimately dispossess
a land-wealthy few and transfer land to previously marginalized
groups.
A variety of philosophical traditions guide scholars and
judges in choosing a normative approach to what the rules of
property law are and should be.22 Justice, liberty, or rights-
based approaches focus on the obligation to pursue fairness
when selecting the applicable law in a given case.23 The justice
approach arises from the notion that law should protect indi-
vidual rights.24 This approach to property focuses on individual
autonomy, human dignity, human flourishing, distributive fair-
ness, social justice, human needs and other related norms.25
Rights-based approaches to property propose that someone has
an obligation to protect or preserve the property right.26 These
approaches can be easily used to support a land redistribution
program that simply orders total restitution, such as full dispos-
session of land-holders whose estates can be traced to colonial
conquest. In this context of land reapportionment, who has the
obligation to protect the right? Should the government pay for
the land on behalf of the dispossessed, as was the case with the
first major phase of land redistribution in Zimbabwe?27 Or does
that obligation fall on another—perhaps the public at large?
A second approach to property is the utilitarian or con-
sequentialist approach, which creates rules of property based
not on their inherent goodness or fairness, but on the societal
consequences they produce.28 The goal of this strand of property
theory is to promote the general welfare, maximize wealth, or
increase social utility and efficiency.29 If the economic snapshot
of Zimbabwe in the colonial 1970s is compared with the 2000s
after the fast-track land reform program, the utilitarian theories
produce the perverse result of suggesting that land should not
have been redistributed at all.30 This theory would vest in the
commercial farmer of European descent full rights to the land
simply by virtue of the farmer being in the best position to put
the land to beneficial use. However, establishing a property right
to land for the beneficiaries of colonization simply because they
had the wealth, capital and financial resources to engage in large-
scale commercial farming is to place the notion of property on
shifting soil. How does one account for the fact that colonial
law, such as the Land Tenure Act in Zimbabwe,31 excluded the
indigenous from owning land, even if one had the wealth and
knowledge to contribute to the agricultural output on a large
scale?32 The utilitarian theory of property therefore fails to sup-
port a sensible legal standard without raising some insurmount-
able equity questions.
A few traditional theories of property law take a more direct
approach to the idea of property by creating justificatory norms
to ground the definition and allocation of property rights. Those
most relevant to the theoretical foundations of land reform are:
(1) first possession as a source of proper ty rights—including
conquest; (2) labor (desert); (3) personality and human flourish-
ing; (4) efficiency; (5) justified expectations; and (6) distributive
justice. 33 The possession theory of the source protects possess-
ors from claims by anyone but the title holder, and in some cases
even the title holder will not be able to dispossess a possessor.34
Commonly held norms that justify the possession theory include
protection of rights and efficiency maximization.35
Although these are attractive norms, possession in the con-
text of post-colonial land distribution is highly problematic.36
Land in Zimbabwe was obtained by a combination of coerced
agreements, force and/or conquest.37 Land allocation during
colonial rule did not allow black Africans to make land claims.
The Land Apportionment Act of 1931 strengthened the white
settlers’ expropriation of land owned by indigenous people.38
Under a system that designated land in terms of who lived on
and farmed it, the legislation allocated approximately 51% of
land to about 3,000 white farmers, confining 1.2 million indig-
enous Africans to Native Reserves that constituted 30% of the
country’s poorest agricultural land.39 Indigenous Africans could
not own land classified as “white” in the apartheid system estab-
lished by this and subsequent laws, and those who already owned
or lived on designated lands were evicted en masse and relocated
to Native Reserves.40 As evidenced by Zimbabwe’s experience,
the distributive implications of the possession theory make it an
insufficient theory on which to base the new allocation of land
rights under a post-colonial redistribution program.
The property theory that comes closest to providing a
sound theoretical foundation for property rights in the context
of land redistribution is John Locke’s labor theory of property.
232012–2013
In his Second Treatise of Government, Locke posited: “As much
land as man tills, plants, improves, cultivates, and can use the
product of, so much is his property. He by his labor does, as it
were, inclose [sic] it from the common.”41 Locke declared that
“[w]hatsoever then [a person] removes out of the state that
nature has provided and left it in, he has mixed his labor with,
and joined to it something that is his own, and thereby makes
it his property.42 This “mixing” of one’s labor with land cre-
ates Locke’s idea of property. Locke’s labor theory went on to
explicitly constrain property rights by requiring that the person
claiming property—by virtue of his labor “mixed” in with the
land—not take so much of the land that others would be pro-
hibited from equally utilizing with the land.43 The conditions
in post-colonial Africa, with its historical legal barriers to land
access, meant that indigenous Africans did not have access to
land of the same quality as settlers.44 Therefore, the natural rights
theory provides a theoretical starting point for post-colonial land
reform because it rejects the absoluteness of the other classical
theories and refuses to allocate property rights on the basis of
who has the better guns. To Locke, the post-colonial commercial
farmers’ agrarian efforts, while establishing property rights in
the land, are valid only to the extent that their exercise does not
deny other individuals the opportunity to create for themselves
the same type of property rights.45
While they are useful in framing the conceptual gap in
property rights theory as applied to post-colonial land redistri-
bution, classical theories of property are further confounded by
the historical dominance of the customary ideas of property in
Africa, Asia and Latin America. Under the customs and tradi-
tions of many countries that have undergone or are currently
engaged in land redistribution, the idea of property, especially
where applied to land, was largely communitarian.46 Land was
owned by the entire community, with the existence of merely
temporary claims.47 This system of communitarian holding pat-
terns established the “law” prior to colonization.48 Customary
patterns of land tenure stand in stark contrast to the settlers’ idea
of specifically identified, titled and exclusive land rights.
Customary land tenure still influences holding patterns
today. For example, to many indigenous populations of Latin
America, the territory is considered to be a communal posses-
sion of a distinct people or ethno-linguistic group.49 Customary
norms stipulate that the territory is to be shared for the benefit
of the community and prohibit alienation of the whole or any
portion of it (no matter how small) to any individual, family,
community or other association.50 Unlike the civil codes of
many Latin American countries, which dictate that land owner-
ship rights derive exclusively from the social function of rural
property, when put to agricultural use, indigenous customary
laws view exclusive rights of possession flowing from use,
occupancy, practical and spiritual knowledge, and the religious
and spiritual ties to the land.51 In many indigenous societies, tra-
ditional territorial possession and rights to share in and benefit
from a homeland are derived from an intimate collective and
individual knowledge of the totality of a particular territory or a
specific part of that territory.52
Although the model is extreme, Zimbabwe’s fast-track land
reform program provides a recent canvas to articulate a legal
standard. Basic principles of fairness suggest that those who
possessed and maintained their commercial farming estates
through a land-grab executed by their ancestors have no right in
the property just as a thief has no property interest in the chattel
of another by simply converting it. Natural notions of correc-
tive justice and restitution support the full return of land into
the hands of the historically disenfranchised group, regardless of
the moral or economic judgments we may make about economic
viability of such an undertaking. Under traditional ideas of prop-
erty, we are left in a world of land reform triage—insufficient
principles on which to base the otherwise indispensable need
for land redistribution and little guidance on how to implement
this invaluable undertaking while upholding the idea of property.
This theoretical gap is unsustainable given the urgencies faced
by post-colonial governments to resolve critical issues of land
distribution. It demands that our post-modern legal order cre-
atively structure an adaptive legal standard for land reform.
Although international law is traditionally viewed as gov-
erning the relationship between sovereigns, and largely abstains
from domestic issues such as individual property rights,53 an
exploration of international law reveals a robust body of legal
and moral norms fit for articulating such a standard. These legal
and moral norms suggest that, in a land redistribution program,
stripping land rights from any group, even when that group
benefitted from a system weighted in its favor, conflicts with
universal principles found in human rights law and in general
principles of international law.54
II. LAND REFORM & RIGHTS UNDER
INTERNATIONAL LAW
Article 17 of the Universal Declaration of Human Rights
(“UDHR”) explicitly protects the right to property. It states:
(1) Everyone has the right to own property alone as well as
in association with others.
(2) No one shall be arbitrarily deprived of his property.55
It has been posited that the UDHR’s human right to own
property is not a right to specific pieces of property but a general
right to hold adequate property.56 Land is fundamental to the
attainment or protection of a variety of other basic human rights,
such as the right to life.57 Therefore, although no international
right to land is explicitly guaranteed in the international legal
framework, there is an emerging international norm recognizing
that a post-colonial government’s sovereign right to redistribute
land violates an international moral code of property rights when
it fails to recognize the five elements articulated herein.58
THE (NON-EXISTENT) HUMAN RIGHT TO LAND
The documents forming the pillars of human rights law
all frame the concept of human rights in terms of human dig-
nity59 and acknowledge the human personality (as opposed
to the rights of groups, or “peoples.”)60 Without this focus on
individual rights, personhood unravels at the hands of domestic
law and unbridled exercises of state sovereignty. Human rights
principles operate to take unfettered power over individuals out
24 SUSTAINABLE DEVELOPMENT LAW & POLICY
of the hands of States. Today, human rights concepts have crys-
tallized into law, creating binding obligations on governments
despite the backdrop of Westphalia and ideas of sovereignty.61
Yet, human rights law represents ideals over which conflict-
ing groups will continue to struggle.62 On one hand, human
rights activists and scholars push for a definition of human rights
based on a broad and inclusive conception of what it means to
be “human” and stress a wide range of moral claims to which
humans are entitled.63 On the other hand, states, groups, and
individuals who are resistant to a progressive human rights
agenda commonly define humanity in more narrow and lim-
ited ways.64 Legal distinctions are made between fundamental
human rights and other rights, with fundamental rights being
perceived as elementary or supra-positive in that their validity
is not dependent on their acceptance by the subjects of law.65
These fundamental rights are seen as the foundation of the inter-
national community.66 Consequently, the right to own a piece of
land is not classified as a fundamental human right. However,
the international norms protecting human dignity underscore
the existence of a legal standard for the preservation of property
rights under post-colonial land reform. At the heart of these
norms is procedural due process.
PROCEDURE UNDER CIVIL & POLITICAL RIGHTS & NORMS
The International Convention on Civil and Political Rights
(“ICCPR”) and the International Covenant on Economic, Social
and Cultural Rights (“ICESCR”) embody the so-called first
generation and second generation human rights, respectively.67
A brief overview of the evolutionary classes of human rights
reveals that first generation, or civil and political (“CP”), rights
require governments adopting a policy of post-colonial land
redistribution to extend broad procedural protections to the
group whose land is indentified for annexation.
The ICCPR governs the protection of the human interest
in bodily integrity, self-determination and human dignity.68 The
enumerated rights under the ICCPR each stem from the idea
of due process of law.69 Due process is perceived as playing a
significant role in fulfilling the universal need for human dignity.
Access to enumerated protection and procedure can be afforded
all human beings with less intrusion on the sovereignty of states
than a substantive obligation would impose.70 Therefore, like the
Universal Declaration of Human Rights, the ICCPR presumes
the universal applicability of the norms it articulates.71 The
body of CP rights envisages a system in which individuals are
accorded specific minimal procedural protections in the deter-
mination of their legal entitlements.72 It does not provide access
to substantive entitlements. However, when those entitlements
are re-ordered by government, the CP norms trigger the state’s
duty to align the procedural mechanism employed to univer-
sal principles articulated in the spirit and letter of the ICCPR.
Several of these CP rights are framed in absolute terms in the
Covenant,73 which arises out of the fundamental nature of the
protected rights. For example, Article 25 creates an obligation
for states to provide every citizen the right and the opportunity,
“without any of the distinctions mentioned in article 2 and
without unreasonable restrictions to take part in the conduct of
public affairs, inter alia.”74
The ICESCR embodies second generation economic, social,
and cultural rights that scholars have characterized as “program-
matic and promotional.”75 According to Anton and Shelton,
despite the fact that within the U.N. there is an almost universal
acceptance of the theoretical “indivisible and interdependent”
nature of the two sets of human rights, the reality is that eco-
nomic, social, and cultural (“ESC”) rights are largely ignored.76
The ESC body of international human rights differs in substance
from CP rights and meets greater opposition from individual
states because of its deeper interface with issues that, even in a
world governed by the Universal Declaration of Human Rights,
are traditionally seen as domestic prerogatives. For a flavor of
the types of rights guaranteed under the ICESCR, see articles
6,77 7,78 8,79 9,80 10,81 11,82 12,83 13,84 and 14.85
Specific rights to land as property have been left out of all
major treaties. This is not surprising, given that land is such a
central aspect of sovereignty that it is even part of the defini-
tion of the nation-state.86 Land law is generally an issue over
which states exercise full territorial sovereignty.87 Nevertheless,
the ICCPR and the ICESCR impose procedural and substantive
minima, which states may not ignore in recognition of their
obligations under international law. Specifically the ICCPR
guarantees everyone, including holders of land seized under a
land redistribution policy, the right to an effective remedy (even
against state actors) the right to a judicial remedy, and the right
of the individual to retain enough property for an adequate
standard of living.88 Derogation from ICCPR obligations is per-
mitted under very narrow circumstances characterized by public
emergency.89
Despite the fact that primary human rights instruments
avoid directly addressing property rights, other sources of inter-
national law take the subject head-on, but only for the protection
of narrowly defined groups. These international instruments are
instructive in identifying the elements of a legal standard for land
reform because they are an example of instances where inter-
national law reaches beyond the sovereign barrier to domestic
land issues. Explicit rights to land have been developed in two
areas of international human rights law: the rights of indigenous
peoples and the rights of women.90 These instruments suggest a
growing willingness of sovereign states to cede absolute control
of at least some issues of property law and policy, and also point
to the universal importance of both access and tenure.
EXPLICITLY RECOGNIZED LAND RIGHTS
The International Labor Organization Convention 169 on
Indigenous and Tribal Peoples (“Convention 169”) is the only
legally binding international instrument related to the rights of
indigenous peoples.91 Convention 169 establishes the right of
indigenous peoples to “exercise control, to the extent possible,
over their own economic, social and cultural development” in
a number of areas.92 It includes specific sections on land and
requires parties to identify lands traditionally occupied by
indigenous peoples and guarantees ownership and protection of
252012–2013
rights thereon.93 In essence, “measures shall be taken in appro-
priate cases to safeguard the right of the peoples concerned to
use lands not exclusively occupied by them, but to which they
have traditionally had access for their subsistence and traditional
activities.”94 Convention 169 also requires the provision of legal
procedures to resolve land claims, establishes rights over natural
resources, and protects against forced removal.95
A second explicit articulation of land rights was generated
under the UN framework and garners much wider support than
Convention 169, but it is not a legally binding instrument.96
The UN Declaration on the Rights of Indigenous Peoples
(“UNDRIP”) states that “indigenous peoples have the right to
the lands, territories and resources which they have traditionally
owned, occupied or otherwise used or acquired.97 Indigenous
people have a right to own and develop resources on their land,
a “right to redress . . . for the lands, territories and resources
which they have traditionally owned or otherwise occupied or
used and which have been confiscated, taken, occupied, used
or damaged.”98 The Declaration confirms similar principles to
those contained in Convention 169. Both the Convention and
the Declaration emphasize consultation, participation and free,
prior, and informed consent where government policy affects
lands occupied by indigenous peoples.99
Implicit in both Convention 168 and UNDRIP is the underly-
ing notion that human rights law limits the type of policies a gov-
ernment may use to redefine land rights. The narrow application
of these articulations exposes the fact that the power imbalance
between government and individuals (or groups) has historically
disadvantaged the poor and displaced people with deep histori-
cal connections to the geographic location from which they are
expelled. Modern examples of government altering the idea of
property through land reform call for the same body of law to
prevent excessive, dehumanizing land reform policies. While it
can be agreed that land rights are not in themselves human rights
as they lack the inalienability of self-determination or the fun-
damental nature of bodily integrity, human rights norms provide
the core elements of a new property right under post-colonial
land reform.
THE IDEA OF PROPERTY IN HUMAN RIGHTS JURISPRUDENCE
On May 27, 2002, the African Commission on Human
Rights and Peoples’ Rights (“African Commission”) became
the first human rights adjudicatory organ to find the existence
of a sweeping “human right to a healthy environment.100 By
broadly interpreting Article 24 of the African Charter on Human
and Peoples’ Rights (“African Charter”) in SERAC v. Nigeria,
the Commission seemed to herald a new era in the liberalization
of human rights.101 It has been described as a sweeping deci-
sion affirming the duties of African states to ensure respect for
economic, social and cultural rights.102 At the time that SERAC
v. Nigeria was decided, there was much optimism that the deci-
sion offered a “blueprint for merging environmental protection,
economic development, and guarantee of human rights.”103 But
most importantly, the African Commission’s SERAC decision
suggested a liberal interpretation of the rights protected under
the African Charter, opening the door to the possibility of cloth-
ing other rights under the charter with broad protection under
regional and international law. Article 14 of the same Charter
directly protects a human right to property, except under very
specific circumstances.104
The African Commission on Human Rights has spoken
consistently in two cases invoking land interests in the context
of human rights, but not in the context of land redistribution.105
Endorois v. Kenya is of paramount importance in understand-
ing how the severity of the conflict between human rights and
public policies alter property rights in land. In that case, the
African Commission ruled on a complaint filed by the Center
for Minority Rights Development and others, on behalf of the
Endorois community, an indigenous community of 60,000
people living in the Lake Bogoria area.106 The complaint alleged
that the Government of Kenya violated the African Charter,
the Constitution of Kenya, and international law by forcibly
removing the Endorois from their ancestral lands without prior
consultation and without adequate or effective compensation.107
The plaintiffs alleged that the displacement disrupted their
community’s pastoral enterprise, interfering with their primary
economic livelihood and preventing them from practicing their
religion and culture.108 They sought a declaration by the African
Commission that the Republic of Kenya violated Articles 8, 14,
17, 21, and 22 of the African Charter.109 The plaintiffs demanded
(1) restitution of their land, with legal title and clear demarca-
tion, and (2) compensation to the community for all the losses
suffered through the loss of property, development and natural
resources, as well as the loss of freedom to practice their religion
and culture.110
The Kenyan government argued that the land on which the
Endorois lived was designated as “Trust Land.111 Further, under
the Kenyan Constitution, Trust Lands could be alienated or set
apart as government land for government or private purposes,
extinguishing any interests previously vested in any tribe, group,
family or individual under African customary law.112 The African
Commission relied on its own jurisprudence and on international
case law to resolve the conflict,113 condemning the conduct of
the government, and finding that restricting the Endorois from
free access to their territory fell below internationally recog-
nized norms.114
The African Commission pointed to Articles 26 and 27
of the UN Declaration on Indigenous Peoples to stress that
indigenous peoples have a recognized claim of ownership, not
just access, to ancestral lands under international law, even in
the absence of official title deeds.115 The Commission held that
the traditional possession of land by indigenous people has the
equivalent effect as that of a state-granted, full property title and
entitles them to demand official registration of property title.116
But the Commission did not base its decision solely on
international laws pertaining to indigenous rights. Of specific
import to the broader notion of property rights in the context of
land reform is the Commission’s reliance on Articles 14 and 21
of the Charter.117 Article 14 provides:
26 SUSTAINABLE DEVELOPMENT LAW & POLICY
The individual right to property shall be guaranteed. It
may only be encroached upon in the interest of public
need or in the general interest of the community and in
accordance with the provisions of appropriate laws.118
Article 21 provides:
All peoples shall freely dispose of their wealth and
natural resources. This right shall be exercised in the
exclusive interest of the people. In no case shall a
people be deprived of it.119
The Commission clarified that it is not the encroach-
ment itself that creates a violation of Article 14 of the African
Charter.120 The right to property under Article 14 imposes an
obligation on States to respect as well as to protect the right to
property.121 The Commission applied a two prong test extracted
from the language of the provision. Under Article 14, an
encroachment can only be conducted: (1) in the interest of pub-
lic need or in the general interest of the community, and (2) in
accordance with appropriate laws.122 The test laid out in Article
14 is conjunctive, such that public need alone cannot define the
policy.
The Commission declared that domestic law did not
by itself prescribe the right to property.123 Accordingly, the
Commission scrutinized the actions of the Kenyan govern-
ment in light of standards and principles of international law.
Relying on the Saramaka124 case—a recent landmark ruling by
the Inter-American Court for Human Rights regarding the right
of tribal and indigenous people in the Americas to control the
exploitation of natural resources in their territories—the African
Commission explained that the provision “in accordance with
the provisions of appropriate law” under the African right to
property required inquiry into: (1) effective participation; (2)
compensation; and (3) prior environmental and social impact
assessment.125 Finding that the Kenyan government had failed
to sufficiently accord any of the three elements to the Endorois
expropriation, the Commission held that the Kenyan government
was in violation of the Endorois’ right to property.126
The Commission also elaborated on the notion of “public
interest,” stating that this part of the test is met with a much
higher threshold in the case of encroachment of indigenous land
as opposed to individual private property.127 The Commission
found support for its position in General Comment No. 4 of the
Committee on Economic, Social and Cultural Rights, which
states that “instances of forced eviction are prima facie incom-
patible with the requirements of the ICESC Covenant and can
only be justified in the most exceptional circumstances, and in
accordance with relevant principles of international law.”128 The
clarity of the encroachment rule now positions us to extract from
the corpus of international and regional human rights law those
elements of the notion of property that must permeate any post-
colonial land redistribution policy.
III. CORE ELEMENTS OF THE LAND REFORM FORMULA
Five legal principles can be extracted from the preceding
discussion, which together form the minimum standards under
international law for post-colonial land redistribution. These
elements are universal principles linking the right to land (as
property) to broader principles of international law. Under this
legal standard, post-colonial land reform: (1) is based on the
existence and articulation of a legitimate public emergency; (2)
is authorized and carried out in accordance with both domes-
tic and international law; (3) exercises proportionality in its
implementation; (4) provides a non-discriminatory right to own
land under the new system; and (5) pays compensation at inde-
pendently determined market value whenever any of the other
elements are breached. The following section explores these
elements in depth.
EXISTENCE AND ARTICULATION OF PUBLIC EMERGENCY
CREATING LEGITIMACY
An indispensable component of the land reform formula
is that government proceeds on the basis of a legitimate public
need for land reform. Because land reform through expropria-
tion is an extreme measure confronting many civil and political
rights, a land reform program can only be legal under interna-
tional law if conditions in the post-colonial states qualify as a
public emergency which “threatens the life of the nation.129
The land imbalance in Zimbabwe was stark enough to set
aside debates on the necessity of land reform. Landlessness,
especially where it is an insurmountable economic barrier in
the absence of reform policy, can be considered a public emer-
gency.130 Therefore, when executed to avert urgent economic
and social crises, land reform is designed to empower previ-
ously land-less people by giving them access to land, a primary
natural resource and the hallmark of agrarian economies. Under
this standard, governments have an obligation to articulate a
legitimate public interest before any program of redistribution is
implemented. Public need must threaten the economic or social
well-being of the State before this condition is satisfied.
THE “IN ACCORDANCE WITH THE LAW” TEST
A land reform program which adheres to principles of inter-
national law is designed and implemented with respect for the
rule of law.131 In Endorois v. Kenya, the African Commission
emphasized the conjunctive nature of the inquiry into whether
the human right to property had been violated.132 The African
Commission explained that under this analysis, the disposses-
sion of land must satisfy both domestic and international law.133
That the African right to property in Endorois was supported
by the ruling of the Inter-American Court of Human Rights in
Saramaka bolsters the universal reach of the notion that land
expropriation must be designed and implemented in accordance
with international norms concerning effective participation,
compensation, and prior environmental and social impact
assessment.134 In the absence of these formal mechanisms, the
substance of rule of law is lost. In essence, land reform may be
governed entirely by domestic laws as long as that law embod-
ies the three core elements that human rights precedent agrees
enshrine lawful expropriation.135
272012–2013
PROPORTIONALITY & THE LEAST RESTRICTIVE POLICY
Both African and European jurisprudence restrict the range
of permissible state conduct that interferes with the right to
property. In addition to the requirements that government have
a legitimate public purpose and that the expropriation be carried
out in accordance with appropriate domestic and international
law, Endorois held that limitations placed by government on the
human right to property must be reviewed under the principle
of proportionality.136 Under this requirement, limitations on
rights to property must be proportionate to a legitimate need, and
should be the least restrictive measures possible.137 Expanding
the discussion from indigenous peoples, the Commission cited
its decision in Constitutional Rights Project Case 1999: “the jus-
tification of limitations must be strictly proportionate with, and
absolutely necessary for, the advantages which follow.”138 The
rule of proportionality declares that “a limitation may not erode
a right such that the right itself becomes illusory,” and further,
that eviction violates the very essence of the right.139 Putting
these principles together, land reform policy may not include
systematic eviction and must allow incumbent landholders to
retain that portion of land that supports a family and allows them
to be self-sufficient.
Further, the international norm of proportionality in the
human rights context has been defined by the European Court
of Human Rights to require that any condition or restriction
imposed upon a right [under the European Convention on
Human Rights] be “proportionate to the legitimate aim pur-
sued.”140 Although proportionality is most commonly identified
under international law in the context of the use of force, propor-
tionality is also a central theme of international law concerning
civil and political rights.141 The derogation clause illustrates this
principle by restricting State actions that depart from protecting
CP rights only to the “extent strictly required by the exigencies
of the situation.” 142 Under no set of hypothetical scenarios can
physical violence and force be deemed a legally permissible
platform for land expropriation, and where the appropriate laws
and procedures are followed, resistance to expropriation should
be treated through the justice system, where the appropriate civil
and political rights would be protected.
ERADICATION OF DISCRIMINATORY PROPERTY RIGHT
ALLOCATIONS
Citizens of the post-colonial country, barring other non-dis-
criminatory impediments, should be given equal opportunity to
own land under the new system. Conceptual loopholes in exist-
ing human rights law expose those subject to land annexation to
discriminatory treatment. Yet a land reform policy that excludes
certain groups from obtaining title to land or enjoying the same
types of property rights available to the direct beneficiaries of
the reform simply perpetuates systems of disenfranchisement
and violates the anti-discrimination principles of the ICCPR,
the ICESCR, and other treaties which collectively form a clear
universal norm against discrimination.143
The victory of the Endorois under the African regional
human rights system is a reinforcement of the focus of land rights
on the poor to the exclusion of the rich. Yet, human rights are not
just for the poor, nor for the rich—their goal is the preservation
of all human dignity.144 We misconstrue the idea of human rights
when we sentimentalize the land rights of ‘the poor’ or the dis-
enfranchised in parts of the world like Lake Bogoria in Kenya,
while recoiling from the idea of preserving property rights for
people who benefitted from colonization.145
COMPENSATION WHERE ELEMENTS ARE BREACHED
The notion of compensation for injury is well established
under international law, but ideas about its role in land redis-
tribution are less convergent.146 Having determined that the
Endorois owned the land and thus had a protected ownership
right under international and African human rights law and
under general principles of international law, the Commission
proceeded to determine the remedy. Article 14 provides that in
the case of dispossession the victims have the right to the lawful
recovery of their property as well as adequate compensation.147
The Commission held that Endorois who had been forced off the
land were entitled to either restitution or to obtain other lands of
equal extent and quality.148
From a practical standpoint, land redistribution is unlikely to
be attainable on the scale required for land reform if it demands
compensation at market value for all land acquired for redistribu-
tion. But there is also a legal dimension: the ICCPR derogation
clause suggests that such compensation is not mandated under
international law.149 Under civil and political rights principles, if
a public need for land reform rises to the level of threatening the
life of a nation, the notion of compensation at market value does
not stand in the way of a State’s power, indeed its obligation, to
address land pressure. Instead, compensation should be viewed
as a penalty government must pay to incumbent landowners if
its land reform policy breaches any of the preceding four proce-
dural and substantive elements.
CONCLUSION
Land reform has become too critical an issue to ignore in
post-colonial countries, and the power of governments to alter
property rights consistent with international law is a critical
question of our day. This article proposes a legal standard for
post-colonial land reform, one rooted in human rights law and
framed in the language of norms that go beyond the racial and
socio-economic tension accompanying current post-colonial
land reform efforts.
The legal standard for land reform proposed here demon-
strates that human rights can co-exist with the recognition of the
need for land redistribution to correct the land ownership imbal-
ances that remain an unresolved, simmering issue of contention.
The land right is not synonymous with the basic human right,
because the need for land lacks the characteristic universality of
fundamental human rights. Rather, the land right that is protected
under international law, within the complicated framework of
post-colonial land redistribution, is the right of the incumbent
to retain enough land for his subsistence and that of his family.
This is the substantive portion of the notion of property in the land
reform context. Further, for annexation and redistribution to be
28 SUSTAINABLE DEVELOPMENT LAW & POLICY
lawful under international law, the policy must: (1) be based on the
existence and articulation of a legitimate public emergency; (2) be
authorized and carried out in accordance with both domestic and
international law; (3) exercise proportionality in its implementa-
tion; (4) provide a non-discriminatory right to own land under
the new system; and (5) pay compensation at an independently
determined market value where the other elements are breached.
Classical theories and customary practices defining the
concept of property are ill-suited to the modern-day need to
justify and implement land redistribution. The clash between
the dominant theories upon which property law is founded and
the transfer of land by government from the land-wealthy to
the landless requires a new, comprehensive way of looking at
property—one that is founded on universal principles that apply
to individuals and groups regardless of their race or status. In a
world where many post-colonial governments are grappling with
serious issues of land pressure, the absence of definitive inter-
national law on land reform is untenable. This proposed legal
standard for land reform defends a substantive and procedural
minimum that post-colonial governments, in their rightful asser-
tions of sovereignty, should incorporate in formulating much-
needed land redistribution.
Endnotes: A Legal Standard for Post-Colonial Land Reform
1 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 26 (C.B. Macpherson, ed.
1980) (1889).
2 BEN CHIGARA, LAND REFORM POLICY: THE CHALLENGE OF HUMAN RIGHTS LAW
123 (2004).
3 For a detailed historical background of the Zimbabwean land conflict, see
Simon Pazvakavambwa & Vincent Hungwe, Land Distribution in Zimbabwe,
in AGRICULTURAL LAND REDISTRIBUTION: TOWARD GREATER CONSENSUS 138, 138
(Hans P. Binswanger-Mkhize, et al. eds., 2009).
4 Id.
5 Id.
6 In its broadest sense, land reform entails a wide spectrum of options includ-
ing land claims, acquisition and distribution of land, access to land for certain
purposes, land use planning, infrastructure development, farming and commer-
cial support, resettlement programs, security of tenure and training. See Bertus
DeVilliers, Land Reform: Issues and Challenges A Comparative Overview of
Experiences in Zimbabwe, Namibia, South Africa and Australia, KONRAD ADEN-
AUR FOUNDATION (2003). This article borrows the definition of “land reform” that
broadly includes reforms that increase the ability of the rural poor and other
socially excluded groups to gain access and secure rights to land. See Roy L.
Prosterman & Tim Hanstad, Land Reform in the Twenty-First Century: New
Challenges, New Responses, 24 SEATTLE J. FOR SOC. JUST. 763 (2006). See, e.g.
Olivier De Schutter, Access to Land and the Right to Food, Report of the Spe-
cial Rapporteur on the Right to Food presented at the 65th General Assembly of
the United Nations, U.N. DOC. A/65/281 (21 October 2010) (drawing on lessons
learned from decades of agrarian reform and emphasizing the importance of
land redistribution for the realization of the human right to food, but cautioning
against development models that lead to evictions, disruptive shifts in land
rights and increased land concentration).
7 See infra notes 8, 49, 69 (and accompanying text).
8 See, e.g. Caitlin Shay, Comment, Fast Track to Collapse: How Zimbabwe’s Fast
Track Land Reform Violates International Human Rights Protections to Property,
Due Process & Compensation, 27 AM. U. INTL L. REV. 133 (2012) (arguing that
Amendments 16A and 16B to the Zimbabwean constitution fall short of the basic
human rights standards articulated in the Universal Declaration of Human Rights
and Banjul Charter and that Zimbabwe is in violation of its obligations to a South-
ern African Development Community Tribunal’s decision by refusing to register the
Tribunal’s judgment that Amendments 16A and 16B are arbitrary, do not provide
due process, and do not provide compensation to owners).
9 See Social and Economic Rights Action Center for Economic and Social
Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Comm.
No. 155/96 (2001); Centre for Minority Rights Development (Kenya) and
Minority Rights Group International on behalf of Endorois Welfare Council v.
Kenya, African Commission on Human and Peoples’ Rights, Comm. No. 276
(2003) [hereinafter Endorois] (addressing the right to property (land) when
government dispossessed an indigenous group in order to free ancestral lands
for economic and tourist development).
10 See generally, Lillian Aponte Miranda, The Role of International Law in
Intrastate Natural Resources Allocation: Sovereignty, Human Rights, and Peo-
ple-Based Development, 45 VAND. J. TRANSNATL L. 785 (2012) (describing the
evolution of international law and its infiltration into what has been deemed a
sacred prerogative of states—sovereignty of their natural resources—and thereby,
ultimate decision-making authority regarding the course of development).
11 Id.
12 Some examples include the right to food or the autonomy of indigenous
peoples. See De Schutter, supra note 6, at 2 (concluding that access to land and
security of tenure are essential for the enjoyment of the right to food, and explor-
ing how States and the international community could better respect, protect and
fulfill the right to food by giving increased recognition to land as a human right).
13 The Convention for the Elimination of Discrimination against Women
(“CEDAW”) is one notable exception in which gender defines the protected
class. See Convention for the Elimination of Discrimination against Women, art.
1, Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW].
14 The Zimbabwean method morphed from market driven sales of land to the
government and indigenous farmers in the 1980s, into a rapid, violent phase
marked by the “gazetting” and reacquiring of land held by white commercial
farmers; acquired land was redistributed to indigenous people.
15 See, e.g. Butjwana Seokoma, Land Redistribution: A Case for Land Reform
in South Africa, NGO PULSE (Feb. 10, 2010), http://www.ngopulse.org/article/
land-redistribution-case-land-reform-south-africa) (arguing that South Africa
should speed up the redistribution of land to the black majority and that there
is a need for the government to review the current laws that govern how land
should be redistributed).
16 See, e.g. De Schutter, supra note 6, at 5 (describing long-term trends of
rural population growth and the loss or severe degradation of arable land in
Asia, Eastern and Southern Africa).
17 The Southern Africa Development Cooperation (“SADC”) is a regional
agreement among 14 sub-Saharan States, each one a former colony of Portugal,
Belgium, the United Kingdom, and/or Germany. See CHIGARA, supra note 2, at
xvi (proposing several lenses through which to best conceptualize and approach
land reform, including human rights law and arguing that the strategies adopted
to resolve the apparent problem of inequitable land distribution in the predomi-
nantly agrarian economies of SADC States, the outcomes that they obtain, and
the reaction of stakeholders will impact political stability).
18 De Schutter, supra note 6, at 5.
19 Id.
20 See id. at 16 (recognizing that his proposed humwe principle—grounded
in social justice principles—alone is not adequate to resolve the land issues in
sub-Saharan Africa and that market efficiency supporting (1) the development
of a sustainable supply of agricultural products and creation of domestic and
international markets for the same, and (2) the restoration and preservation of
the capacity to feed their populations and to supply external markets with food
and food products); Margaret Rugadya, Land Reform: The Ugandan Experi-
ence, RISD (1999), available at http://www.mokoro.co.uk/other-resources/
east-africa/uganda (explaining how and why land reform has taken center stage
on the agendas of East, Central and Southern African countries in the last few
decades); see also Prosterman & Hanstad, supra note 6, at 764 (stating that in
countries where the landless are a large part of the agricultural population, their
families form a deep concentration of poverty and human suffering, as well as
an impediment to the process of economic development and, in many settings, a
potential threat to political stability).
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