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

Abstract

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.