Document Type

Article

Disciplines

International Law

Abstract

Property rights and land reform traditionally have not been concepts incorporated into international human rights law. This is in part because property rights are difficult to categorize: they include many different types of rights, such as civil, political, economic, and social.' For example, an individual who holds title to land has a civil right to that land, while an individual who depends on land for a livelihood has an economic right to the land.2 On an international level, land reform is based on two different ideologies about land; either land is viewed as personal property or for the public good.

In apartheid South Africa, land was a pillar of the apartheid structure.' The apartheid government used land as a means of economically and socially suppressing the African majority. By depriving the Africans of property rights the foundation was set for profound poverty and social instability. The deprivation of property rights set the stage for the profound adversity Africans endured under apartheid. Land is a primary source of income and subsistence. Without land, a person is dependent on others for economic survival. As a consequence of its land policies, the South African government created gross inequalities with regard to housing and farming land during decades of apartheid legislation.

Many African nations have experienced a resurgence of land reform over the last century following the retreat of colonial rule. 6 In post-apartheid South Africa, the new government faced many challenges in transitioning the government and rebuilding the nation after years of conflict and systematic, legislated segregation. In an effort to remedy past human rights abuse, one of the issues that needed to be addressed was property rights and land reform. Although it is clear that the need for land reform is integral in establishing a new era, these efforts are caught between land reform and the need to maintain and protect civil or economic rights.7 During the apartheid era,8 approximately 3.5 million Africans9 and their descendents were victims of dispossessions and forced removals based on race. 0 Attempting to reconcile the past, the new government has recognized and protected land ownership while establishing an obligation to ensure land reform through the South African Constitution of 1996.

In order for South Africa to undergo true political and economic transformation, a land reform policy needed to be established to redistribute the land to the disenfranchised African majority. 2 Under apartheid, the forced removal of Africans from their homes and a continued deprivation of African property rights perpetuated and maintained the apartheid system. Since many Africans still lived in impoverished rural homelands at the end of apartheid, a need for land reform was evident in order to redress the harms endured by Africans and enable them to achieve economic and social self-sufficiency.

This Comment explores the role of land reform as a means of reparations for human rights violations in South Africa. Part I describes the importance of land reform in post-conflict nations and presents specific examples of the types of conflicts that needed to be resolved in South Africa. Land reform is introduced as a developmental need in South Africa. Part II briefly describes the history of property rights and the progressive pattern of dispossession in South Africa throughout its colonization. This section also provides a description of the legislation implemented during apartheid that removed millions of Africans from their land. Part III outlines the basis for property as a human right internationally and on a domestic level in South Africa. In this section, United Nations documents as well as the South African Constitution are analyzed with the view of establishing property as a fundamental human right. Part IV provides a broad overview of land reform and specifically addresses how land reform can be implemented as a means of reparation for human rights violations. Part V concludes that despite South Africa's constitutional and legislative commitment to land reform, the process has been inadequate in redressing the human rights abuses of the apartheid regime.

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