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Good faith: Zimbabwe's obligations under international law to acquire
land and pay just compensation
January 29, 2013
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This paper is
part of the Zimbabwe Land Series
- View index to Mandi Rukuni's articles here
- View index to Dale Dore's articles here
What is meant
by 'good faith' when acquiring land? And what is just
compensation? This paper is a search for answers to these questions.
It begins by examining the fundamental principles enshrined in international
laws, conventions and treaties to which Zimbabwe is bound and obliged
to honour. These provide a benchmark against which to evaluate Zimbabwe's
own laws and practices governing the compulsory acquisition of land
and compensation. Three fundamental rights take centre stage: the
right to fair compensation and prompt payment; the right to the
protection of the law and a fair hearing in a court of law; and
the right not to be discriminated against on the grounds of race
or colour. The rulings of Zimbabwe's Supreme Court governing these
rights are compared with those of two international Tribunals: the
SADC Tribunal and the International Centre for Settlement of Investment
Disputes. Before drawing conclusions and making recommendations,
the paper dwells briefly on the government's responses to the judgments
of these international courts.
Law and Principles
Law, Conventions and Treaties
is international law?
Law Association defines 'general customary international law'
as a rule or principle that is widely, consistently and uniformly
practiced (such as diplomatic immunity), which gives rise to legitimate
expectations in the future. This law is binding on all States, whether
or not a particular State believes or consents to the rule. In other
words, it is not necessary for the consent of a State for it to
be bound by a rule of international law. The main rule of international
law considered in this paper is that just compensation for compulsory
acquisitions must be based on good faith, due process, and the genuine
value of the land acquired by the State.
While many rules
of international law are customary, others have come into force
through declarations and resolutions of the General Assembly of
the United Nations. Foremost amongst these is the Universal
Declaration of Human Rights, including:
- The right
to own property and not to be arbitrarily deprived of it, as enshrined
in section 16 of Zimbabwe's constitution
- The right
to the protection of the law and to be heard in an independent
and impartial court of law, which forms part of section 18 of
our Constitution, and
- The right
not to be discriminated against on the grounds of race or colour,
enshrined as section 23 of the Constitution.
also form part of the African
Charter on Human and Peoples Rights to which Zimbabwe has acceded
and is therefore bound.
also entered into treaties that are governed by international law,
such as the SADC Treaty and Bilateral Investment Promotion and Protection
Treaties with various States, including The Netherlands and Germany.
As such, Zimbabwe is bound by the Vienna Convention on the Law of
Treaties. Two articles of the Convention are particularly pertinent.
The first is that every treaty in force is binding upon the parties
to it and must be performed by them in good faith. The second is
that a party to a treaty may not invoke the provisions of its internal
law as justification for its failure to perform a treaty.
also bound by the United Nations resolution on State Responsibility
for International Wrongful Acts. If Zimbabwe is responsible for
wrongful acts, then the Pinheiro Principles on restitution for displaced
persons apply. The first principle holds that displaced persons
who have been arbitrarily or unlawfully derived of their housing,
land or property have the right to have them restored, and are entitled
to full and effective compensation.
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