Achiume: The SADC Tribunal: Socio-Political Dissonance and the Authority of International Courts

Tendayi Achiume (Univ. of California, Los Angeles - Law) has posted The SADC Tribunal: Socio-Political Dissonance and the Authority of International Courts (in How Context Shapes the Authority of International Courts, Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen eds., forthcoming). Here's the abstract:

In 2007, the Tribunal of the Southern African Development Community (SADC) heard its first case: a group of white farmers led by a Zimbabwean named Mike Campbell sued the Zimbabwean government, alleging that its uncompensated seizure of their farms constituted unlawful racial discrimination. The decision the Tribunal issued in this case (Campbell) went on to trigger intense backlash from the government headed by Zimbabwe’s President Robert Mugabe, paving the way for a remarkable curtailment of the Tribunal’s authority. Ultimately, Zimbabwe — specifically the Mugabe regime — succeeded in stripping the Tribunal of both private access and its jurisdiction over human rights.

This Chapter pursues three objectives. The first is to demonstrate that central to understanding the Mugabe regime’s curtailment of the SADC Tribunal’s authority is an account of Campbell’s engagement with the socio-political context of southern Africa. To make my case, I introduce the concept of socio-political dissonance — a state that results when a legal decision contradicts or undermines deeply held norms that a given society or community forms on the basis of its social, political and economic history. I propose that socio-politically dissonant decisions alienate constituencies with significant influence over the authority of international courts, leaving these courts more vulnerable to successful backlash attempts by disgruntled litigants. In Campbell the SADC Tribunal advanced a vision of racial equality and postcolonial land reform that was socio-politically dissonant for the SADC region. This dissonance alienated SADC member states and limited the potential buffer civil society actors could offer the Tribunal in the face of the Mugabe regime’s indefatigable backlash efforts. My analysis of the SADC case suggests that comprehensive understanding of the relationship between contextual factors and authority of inter-national courts requires reckoning with the subjective beliefs, perceptions and motivations underlying key audience practices.

The second objective is to propose that SADC offers an example of circumstances under which judges have some potential to mediate how contextual factors beyond their control shape the authority of international courts. This Chapter argues that the judges on the SADC Tribunal avoidably facilitated the subsequent contraction of their Tribunal’s authority, and briefly suggests that alternative approaches were available to the judges that would have diminished the backlash threat. As a result, this Chapter contributes to the broader literature on the authority of international courts in the following way. Other scholars have mapped political constraints on international judicial lawmaking, and more recently scholars have begun exploring socio-political constraints on this process. My analysis of the SADC Tribunal provides a vivid example from outside of Europe of socio-political constraints on international judicial law-making, which if ignored may have direct implications for the authority of international tribunals.

The final objective of my chapter is to offer a novel analysis of the international law doctrine on race-conscious post-colonial land reform in southern Africa, which is at the heart of Campbell. Scholars to date have taken for granted the legal soundness of the SADC Tribunal’s application of international human rights law in Campbell, which can be read to preclude race-conscious land reform even where this reform seeks to undo racialized land ownership structures rooted in colonial policy in the region. I challenge Campbell’s racial discrimination analysis, arguing that a more nuanced approach is required by international human rights law and for southern Africa. Doing so initiates what must be a larger project more fully to understand international law’s relation-ship to post-colonial land reform and racial equality in southern Africa.