Who Stands on Land? Transnational sources of apartheid and community (dis)placement in southern African land claims

Following advances in indigenous peoples’ jurisprudence, human rights, environmental and cultural heritage law, international law increasingly recognises that land-dependent groups have substantive and procedural rights over their collective land even in the absence of formal title. While some have argued that this represents the decolonisation of international law (for instance, going beyond Western frameworks of property prioritising land’s economic function), to avail of these rights, it is necessary that groups be legally legible as a community. However, the meaning of ‘community’ has largely evaded international legal scrutiny (in contrast to other terms denoting collective subjecthood, for instance ‘peoples’ and/or ‘minorities’). Moreover, international frameworks asserting collective rights in land often discursively blur ‘indigenous peoples’ and ‘local communities’, despite only the former having clearly defined rights to self-determination and self-identification. This is particularly visible in southern Africa, where significant tracts of (rural) land are communal, governed according to African Customary Laws; and where the application of international indigenous peoples’ rights is often contested by post-colonial governments. Drawing on interdisciplinary approaches, including comparative law, critical legal geography, ethnography and archival research, this dissertation argues that Eurocentric ontologies of collective personhood, including those transnationally connected to the ideology and legal technologies of apartheid, persist in international law. Moreover, in the absence of an international legal definition of community, this dissertation illustrates how states are afforded epistemic authority over demarcating collective personhood. In contrast to other Anglophone
settler-colonies regions, the majority of the population in southern Africa was legally configured through the cultural and racial category of the "native", and forced into tribalised identities associated with customary systems of land tenure. While the recognition by post-colonial southern African states of customary tenure systems alongside Western property represents, in theory, a mechanism by which communities can safeguard their collective rights in land, in practice, the top-down definition of ‘communities’ (connected to prescribed meanings of land) denies communities access to international legal mechanisms designed to empower them, and often involves the reinscription of colonial and Eurocentric ontologies of African personhood. Following Mamdani, who argued that the system of apartheid reflects a culmination of colonial engagement on the African continent, this dissertation uses Namibian and South African case studies to illustrate the spatial and epistemic injustice enabled by the lack of (international) normative frameworks allowing communities to define themselves, for instance according to (place-based) interrelations of custom/law, culture and the environment. These case studies involve claimants who relied on international laws to assert their place-based rights in land against the state, developers, or corporations, but whose locus standi was dismissed by courts, drawing on apartheid classificatory schema and ontologies of distinctiveness. These case studies illustrate the normative impact of international law in co-producing the colonial logics that continue to structure how communities are (mis)represented in post-apartheid courts. Moreover, the case studies illustrate how the ‘placelessness’ of the (international) legal meaning of community reinscribes western notions of property, while enabling states, developers and corporations to engage in the optics of affirming international best practices for community inclusion. In grounding my research in place-based methodologies, I argue for a place-based ontology of ‘community’ drawing on the notion of the substantive landscape.