1 See Tendayi Achiume, Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Racial Intolerance, UN Doc. A/74/321 (Aug. 21, 2019); see also Caribbean Community (CARICOM) Reparations Commission, at https://caricomreparations.org/caricom. For the ongoing efforts of the Herero and Nama to gain reparation, see Kate Connolly, UN Representatives Criticise Germany Over Reparations for Colonial Crimes in Namibia, Guardian (Apr. 28, 2023), at https://www.theguardian.com/global-development/2023/apr/28/un-representatives-criticise-germany-over-reparations-for-colonial-crimes-in-namibia. For general overviews of the different dimensions of reparations claims, see, e.g., Carsten Stahn, Reckoning with Colonial Injustice: International Law as Culprit and as Remedy?, 33 Leiden J. Int’l L. 823 (2020).

2 United Nations, Durban Declaration and Programme of Action, at https://www.un.org/en/fight-racism/background/durban-declaration-and-programme-of-action.

3 Rome Statute of the International Criminal Court, Arts. 6–7, opened for signature July 17, 1998, 2187 UNTS 90 (entered into force July 1, 2002) [hereinafter ICC Statute].

4 As Tendayi Achiume puts it, “international legal doctrine has a longer history of justifying and enabling colonial domination than it does of guaranteeing equal rights to all human beings.” Achiume, supra note 1, at 4–5.

5 See Steven Ratner, Reparations for Colonialism Beyond Legal Responsibility, 119 AJIL 2 (2025) (in this issue). This raises the issue that Steven Ratner explores of whether international law is the best means to seek reparations.

6 The term “reparations” is expansive, including not only financial compensation, but also restitution, rehabilitation, and guarantees of non-repetition. See Achiume, supra note 1, para. 37. For the argument linking reparations with jus cogens, see Dire Tladi, Jus Cogens and Reparations: Can We Just End the Separation?, 119 AJIL 2 (2025) (in this issue).

7 See, e.g., Richard M. Buxbaum, A Legal History of International Reparations, 23 Berk. J. Int’l L. 314 (2005); Olúefmi O. Táíwò, Reconsidering Reparations (2022); Colonialism, Slavery, Reparations and Trade: Remedying the Past? (Fernne Brennan & John Packer eds., 1st ed. 2013); Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (1st ed. 2000); Reparations: Interdisciplinary Inquiries (Jon Miller & Rahul Kumar eds., 2007); Sinja Graf, Law, Time, and (In)Justice After Empire: Germany’s Objection to Colonial Reparations and the Chronopolitics of Deflection, 17 Int’l Theory 1 (2025).

8 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment, 1992 ICJ Rep. 240 (June 26).

9 See Ratner, supra note 5.

10 See Dinah Shelton, Righting Wrongs: Reparations in the Articles on State Responsibility, 96 AJIL 833 (2002). On the integral relationship between colonial claims and the classic law of state responsibility, see Andreas Buser, Colonial Injustices and the Law of State Responsibility: The CARICOM Claim to Compensate Slavery and (Native) Genocide, 77 Heidelberg J. Int’l L. 409 (2017).

11 I have sketched this argument out in Antony Anghie, Rethinking International Law: A TWAIL Retrospective, 34 Eur. J. Int’l L. 7 (2023). See id. at 93–103.

12 Here I follow Anne Orford who argues for the importance, of “seeing what is seen.” See Anne Orford, In Praise of Description, 25 Leiden J. Int’l L. 609 (2012).

13 See, e.g., Ta-Nehisi Coates, The Case for Reparations, Atlantic (2014); Táíwò, supra note 7.

14 See, e.g., Buser, supra note 10.

15 Id.

16 Island of Palmas Case (Neth., U.S.), PCA Case No. 1925-01, Final Award, 831, 845 (Apr. 4, 1928) [hereinafter Island of Palmas Case]; Philip C. Jessup, The Palmas Island Arbitration, 22 AJIL 735 (1928). The classic article on the topic is T. O. Elias, The Doctrine of Intertemporal Law, 74 AJIL 285 (1980). There is a large literature on the topic, see, e.g., Steven Wheatley, Revisiting the Doctrine of Intertemporal Law, 41 Oxford J. Legal Stud. 484 (2021). The Namibian claim for reparations arising from the genocide in what was German South-West Africa has generated an extensive literature on this specific issue. For an excellent overview, see Karina Theurer, Minimum Legal Standards in Reparation Processes for Colonial Crimes: The Case of Namibia and Germany, 24 Ger. L.J. 1146 (2023).

17 Island of Palmas Case, supra note 16, at 845.

18 Id. (a case that has so many repercussions for colonial issues was itself a product of colonial issues, although these are hardly explicitly recognized).

19 See, e.g., Theurer, supra note 16; Stahn, supra note 1; Andreas von Arnauld, How to Illegalize Past Injustice: Reinterpreting the Rules of Intertemporality, 32 Eur. J. Int’l L. 401 (2021); Matthias Goldmann, The Ambiguity of Colonial International Law: Three Approaches to the Namibian Genocide, 37 Leiden J. Int’l L. 580 (2024); Nora Wittman, Global Assessment of the Legality of Transatlantic Chattel Slavery, in Reparations Under International Law for Enslavement of African Persons in the Americas and the Caribbean: Proceedings of the Symposium May 20–21, 2021, at 32–39 (Justine N. Stefanelli & ASIL eds., 2022).

20 See Mamadou Hébié, Transatlantic Chattel Slavery 1450–1550, in Reparations Under International Law for Enslavement of African Persons in the Americas and the Caribbean, supra note 19, at 39–55. This symposium contains a number of important pieces on this topic.

21 Wittman, supra note 19.

22 See Goldmann, supra note 19.

23 Covenant of the League of Nations, Art. 22, June 28, 1919, 108 LNTS 188, at https://www.ungeneva.org/en/about/league-of-nations/covenant.

24 UN Charter, Art. 76, at https://www.un.org/en/about-us/un-charter.

25 See Quincy Wright, Mandates Under the League of Nations 11 (1930).

26 See Covenant of the League of Nations, supra note 23, Art. 22(1). For a detailed account, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, paras. 47–49 (June 21).

27 Mandate for Nauru, Art. 7 (Dec. 17, 1920), at https://tile.loc.gov/storage-services/service/gdc/gdclccn/22/00/42/03/22004203/22004203.pdf.

28 For instance, Ethiopia and Liberia focused on the apartheid system. See South West Africa Cases (Eth. v. S. Afr.; Liberia v. S. Afr.), Preliminary Objections, Judgment, 1962 ICJ Rep. 319 (Dec. 21).

29 See Wright, supra note 25, at 3–15.

30 Francisco de Vitoria, On the American Indians, in Francisco De Vitoria, Vitoria: Political Writings at 290, Question 3, Art. 8, para. 18 (Anthony Pagden & Jeremy Lawrance eds., 1st ed. 1991).

31 Id.

32 Id. at 291 (emphasis in original).

33 See Christopher Weeramantry, Nauru: Environmental Damage Under International Trusteeship 78 (1992).

34 Id. at 80.

35 Id. at 82. Cherokee Nation v. Georgia, 30 U.S. (5 Pet) 1, 17 (1831); the Spanish origins of the U.S. law is studied in Felix S. Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31 Geo. L.J. 1, 17–18 (1942).

36 Weeramantry, supra note 33, at 83.

37 General Act of the Berlin Conference on West Africa, Art. 6, Feb. 26, 1885.

38 For a detailed and expert comparative study, see Certain Phosphate Lands in Nauru (Nauru v. Austl.), Memorial of the Republic of Nauru, Appendix 3 (ICJ Apr. 1990), at https://www.icj-cij.org/sites/default/files/case-related/80/6655.pdf.

39 Vitoria, supra note 30, at 291.

40 Wright, supra note 25, at 3–23 (gives an overview based on the writings of scholars, colonial policies, and cases in national systems such as the United States).

41 H. Duncan Hall, Mandates, Dependencies and Trusteeship 97 (1948).

42 Id. at 98.

43 Id. at 99.

44 Id.

45 Id.

46 For the complications of Burke’s application of trusteeship to slavery in the West Indies, however, see Parvathi Menon, Edmund Burke and the Ambivalence of Protection for Slaves: Between Humanity and Control, 22 J. Hist. Int’l L. Rev. 246 (2020).

47 See Alpheus Henry Snow, The Question of Aborigines in the Law and Practice of Nations, Including a Collection of Authorities and Documents (1918); Saliha Belmessous, Native Claims: Indigenous Law Against Empire, 1500–1920 (2011).

48 On the German law applicable to Nauru and the protections it offered to the people of Nauru, see Weeramantry, supra note 33, at 180–200, dealing with the German law applicable to its protectorates, the Schutzgebietegesetz, of 1900.

49 See Memorial of the Republic of Nauru, supra note 38. For an outstanding study of Nauru in a broader colonial and historical context, see Cait Storr, International Status in the Shadow of Empire: Nauru and Histories of International Law (2020).

50 UN Charter, supra note 24, Art. 73(a). Article 76, which has similar language, deals with Trust Territories.

51 The Trusteeship Council inquired into issues such as educational advancement in relation to Nauru. See Antony Anghie, The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case, 34 Harv. Int’l L.J. 445, 466–68 (1993).

52 See Charter of the International Military Tribunal, United Kingdom of Great Britain and Northern Ireland, United States of America, France, Union of Soviet Socialist Republics, Art. 6(c), Aug. 8, 1945 (“[c]rimes against humanity” was a particularly innovative charge developed by Hersch Lauterpacht). See also Philippe Sands, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (1st ed. 2016), for a superb account of its evolution. Lauterpacht’s words resonate: “To lay down that crimes against humanity are punishable is, therefore, to assert the existence of rights of man grounded in a law superior to the law of the State.” Hersch Lauterpacht, International Law and Human Rights 36 (1950).

53 See Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, 974 (1951), at https://tile.loc.gov/storage-services/service/ll/llmlp/2011525364_NT_war-criminals_Vol-III/2011525364_NT_war-criminals_Vol-III.pdf [hereinafter U.S. v. Alstotter].

54 Id. at 975; see also Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law, Norms, Actors, Process: a Problem-Oriented Approach 571 (3rd ed. 2010).

55 U.S. v. Alstotter, supra note 53, at 975.

56 Id. at 976, citing Sir David Maxwell-Fyfe.

57 Makau wa Mutua, Reparations for Slavery: A Productive Strategy?, in Time for Reparations: A Global Perspective 24 (Jacqueline Bhabha, Margareta Matache & Caroline Elkins eds., 2021).

58 Bin Cheng, 11 Justice and Equity in International Law, 8 Current Legal Prob. 185 (1955).

59 I have sketched this concept earlier. See Anghie, supra note 11.

60 See Treaty of Nanjing (Nanking), Great Britain-China, Art. VI, Aug. 29, 1842, 93 CTS 465, which states that “The Government of Her Britannic Majesty having been obliged to send out an expedition to demand and obtain redress for the violent and unjust Proceedings of the Chinese High Authorities towards her Britannic Majesty’s Officer and Subjects.”

61 See Xue Hanqin, Chinese Contemporary Perspectives on International Law: History, Culture and International Law (2012).

62 For a detailed and illuminating analysis of this, see Liliana Obregón, Empire, Racial Capitalism and International Law: The Case of Manumitted Haiti and the Recognition Debt, 31 Leiden J. Int’l L. 597 (2018); Vasuki Nesiah, A Double Take on Debt: Reparations Claims and Regimes of Visibility in a Politics of Refusal, 59 Osgoode Hall L.J. 153 (2022); Kris Manjapra, Black Ghost of Empire: The Long Death of Slavery and the Failure of Emancipation (2022).

63 Manjapra, supra note 62, at 58.

64 See Nesiah, supra note 62; see also Hendri F. Isnaeni, Colonial Reparations, Histori Bersama (Aug. 13, 2010), at https://historibersama.com/colonial-reparations. Here, the claim is that at the Roundtable Conference in the Hague in 1949 leading to Indonesian independence, Indonesia paid a “colonial debt” to the Netherlands that was estimated at 4.5 billion guilders (6.5 billion had been initially claimed). This money was crucial for the post-war reconstruction of the Netherlands. Other such instances no doubt can be traced.

65 See Kris Manjapra, When Will Britain Face Up to Its Crimes Against Humanity?, Guardian (Mar. 29, 2018), at https://www.theguardian.com/news/2018/mar/29/slavery-abolition-compensation-when-will-britain-face-up-to-its-crimes-against-humanity.

66 Id.

67 Manjapra, supra note 62, at 106-8.

68 Factory at Chorzów (Ger. v. Pol.), 1927 PCIJ (Ser. A) No. 9 (July 26). Chorzów sets the framework against which the reparations claims for slavery and racism are advanced. See Achiume, supra note 1, at 12–23, para. 31. There is now a searching literature that focuses on different dimensions of the Chorzów case, its limits and implications for the broader issue of reparations, see Felix E. Torres, Revisiting the Chorzów Factory Standard of Reparation – Its Relevance in Contemporary International Law and Practice, 90 Nord. J. Int’l L. 190 (2021); Andreas von Arnauld, The Third World and the Quest for Reparations: Afterword to the Foreword by Antony Anghie, 34 Eur. J. Int’l L. 787 (2023).

69 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, Art. 31, [2001] 2 Y.B. Int’l L. Comm’n 26, UN Doc. A/56/10.

70 The Law of International Responsibility (James Crawford, Alain Pellet & Simon Olleson eds., 2010).

71 See Kathryn Greenman, State Responsibility and Rebels: The History and Legacy of Protecting Investment Against Revolution (1st ed. 2021); Alan Tzvika Nissel, Merchants of Legalism: A History of State Responsibility (1870–1960) (2024). As Nissel argues, “This history [of state responsibility] is but a series of stories about how merchants and their advocates used legalism to protect foreign investment abroad,” Id. at 5.

72 See Draft Articles on Responsibility, supra note 69, Art. 1.

73 See Y. Matsui, The Transformation of the Law of State Responsibility, in State Responsibility in International Law 39 (René Provost ed., 2002), referring to the memorandum entitled “Survey of International Law in Relation to the Work of Codification” which asserted that the treatment of aliens had constituted in practice the most conspicuous application of the law of state responsibility.

74 See Elihu Root, The Basis of Protection to Citizens Residing Abroad, 4 AJIL 517, 522 (1910); see also, Matsui, supra note 73, at 4, citing Garcia-Amador’s First Report, 1956-II Y.B. Int’l L. Comm’n, at 176–80, UN Doc. A/CN.4 96.

75 Root, supra note 74, at 521–22.

76 Matsui, supra note 73, at 6.

77 Frederick Sherwood Dunn, International Law and Private Property Rights, 28 Colum. L. Rev. 166, 175–76 (1928), cited in Matsui, supra note 73, at 16

78 See Ntina Tzouvala, Capitalism As Civilisation: A History of International Law (1st ed. 2020).

79 Luis M. Drago, State Loans in Their Relation to International Policy, 1 AJIL 692 (1907).

80 For a sense of the importance of this issue in the 1950s, see Bin Cheng, The Rationale of Compensation for Expropriation, 44 Transactions Grotius Soc’y 267 (1958).

81 S. N. Guha Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 AJIL 863 (1961).

82 Id. at 888.

83 R. R. Baxter, Reflections on Codification in Light of the International Law of State Responsibility for Injuries to Aliens, 16 Syracuse L. Rev. 745, 747–48 (1965), cited in Matsui, supra note 73, at 4. Baxter argued that “the circumstances under which responsibility attaches and the remedies to be provided for the violations of the rules of law cannot be divorced from the substantive rules of conduct themselves.” For an incisive account of how the “secondary” rules reproduced the advantages enjoyed by corporations, see B.S. Chimni, The Articles of State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective, 31 Eur. J. Int’l L. 1211.

84 Anglo-Iranian Oil Co. (UK v. Iran), Judgment, 1952 ICJ Rep. 93 (July 22). See also Sundhya Pahuja & Cait Storr, Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited, in The International Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz (James Crawford, Abdul G. Koroma, Said Mahmoudi & Alain Pellet eds., 2017).

85 Yuliya Chernykh, The Gust of Wind: The Unknown Role of Sir Elihu Lauterpacht in the Drafting of the Abs-Shawcross Draft Convention, in International Investment Law and History (Stephan W. Schill, Christian J. Tams & Rainer Hofmann eds., 2018).

86 For a superb study of this initiative, see Nicolás M. Perrone, Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules 51–80 (1st ed. 2021).

87 Chernykh, supra note 85, at 249, citing Hartley Shawcross, Life Sentences: The Memoirs of Lord Shawcross (1995).

88 See Anglo-Iranian Oil Company Limited Persian Settlement – Opinion, cited in Chernykh, supra note 85, at 263.

89 See Abs-Shawcross Draft Convention on Investments Abroad, Art. VII, as cited in Herman Abs & Hartley Shawcross, The Proposed Convention to Protect Private Foreign Investment: A Round Table, 1 J. Pub. L. (presently Emory L.J.) 115 (1960).

90 For expert and authoritative analysis of the internationalization of contracts, see M. Sornarajah, Resistance and Change in the International Law on Foreign Investment 78–133 (2015). For a recent analysis illuminatingly tracing these developments, see Andrea Leiter, Making the World Safe for Investment: The Protection of Foreign Property 1922–1959 (1st ed. 2023).

91 M. Sornarajah, The Pursuit of Nationalized Property 81–168 (1986); M. Sornarajah, The International Law on Foreign Investment 358–68 (5th ed. 2021).

92 Ian Brownlie, Legal Status of Natural Resources in International Law (Some Aspects) (Volume 162), Hague Acad. Collected Courses Online 308 (Jan. 2, 1979).

93 Derek William Bowett, State Contracts with Aliens: Contemporary Developments on Compensation for Termination or Breach, 59 Brit. Y.B. Int’l L. 49 (1989).

94 Sornarajah, supra note 90.

95 Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (1st ed. 2013).

96 Grietje Baars, The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (2019).

97 David Schneiderman, Investment Law’s Alibis: Colonialism, Imperialism, Debt and Development (1st ed. 2022).

98 See Khalil Hamdani & Lorraine Ruffing, United Nations Centre on Transnational Corporations: Corporate Conduct and the Public Interest (2015).

99 See Lauge N. Skovgaard Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (1st ed. 2015). There are also doubts about the positive impact of bilateral investment treaties.

100 For this history, see Taylor St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (2018).

101 Schneiderman, supra note 97.

102 Similarly, von Arnauld proposes a way of using “ethical principles” as a “gateway to juris genesis.” See von Arnauld, supra note 19, at 407.

103 Lord Arnold McNair, The General Principles of Law Recognized by Civilized Nations, 33 Brit. Y.B. Int’l L. 1 (1957).

104 See Petroleum Development Ltd v. The Sheikh of Abu Dhabi, 18 ILR 144 (1951).

105 See U.S. Model Bilateral Investment Treaty, Art. 5(1) (2012), at https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf.

106 Id. Art. 5(2).

107 See Sornarajah, The International Law on Foreign Investment, supra note 91, at 445.

108 Merrill and Ring Forestry L.P. v. Canada, ICSID Case No. UNCT/07/1, cited in Sornarajah, The International Law on Foreign Investment, supra note 91, at 445.

109 See Sornarajah, The International Law on Foreign Investment, supra note 91, at 445.

110 Id. at 438–56.

111 Sergio Puig, Social Capital in the Arbitration Market, 25 Eur. J. Int’l L. 387 (2014).

112 For an overview of these issues based on empirical research and socio-legal studies, see The Legitimacy of Investment Arbitration: Empirical Perspectives, (Daniel Behn, Ole Kristian Fauchald & Malcolm Langford eds., 1st ed. 2022). For an examination of the recent struggles of developing countries and investment treaties, see Mavluda Sattorova & Oleksandra Vytiaganets, Learning from Investment Treaty Law and Arbitration: Developing States and Power Inequalities, in The Legitimacy of Investment Arbitration: Empirical Perspectives 501 (Daniel Behn, Ole Kristian Fauchald & Malcolm Langford eds., 2022). For the complications investment treaty arbitration has caused for the classic law of state responsibility, see Martins Paparinskis, Investment Treaty Arbitration and the (New) Law of State Responsibility, 24 Eur. J. Int’l L. 617 (2013). The corporation had outgrown the framework it initially relied on.

113 Yves Dezalay & Bryant G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (1996).

114 For a critique of current practices, see Juan Carlos Boué, The Investor-State Dispute Settlement Damages Playbook: To Infinity and Beyond, 24 J. World Invest. Trade 372 (2023).

115 Sofia De Murard, Tribunal Finds Pakistan Breached FET, Expropriation and Non-impairment Obligations in the Context of a Mining Joint Venture with Australian Investor Tethyan Copper Company, Int’l Inst. Sustainable Dev. (IISD) (Dec. 17, 2019), at https://www.iisd.org/itn/2019/12/17/tribunal-finds-pakistan-breached-fet-expropriation-non-impairment-obligations-mining-joint-venture-with-australian-investor-tethyan-copper-company-tethyan-copper-company-v-pakistan-icsid-arb-12-1.

116 See Toni Marzal, Polluter Doesn’t Pay: The Rockhopper v. Italy Award, EJIL:Talk! (Jan. 19, 2023), at https://www.ejiltalk.org/polluter-doesnt-pay-the-rockhopper-v-italy-award.

117 For my argument that it is these awards that in effect create new forms of property, see Antony Anghie, Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka: “All That Is Solid Melts into Air,” 30 ICSID Rev. 356 (2015).

118 See Jonathan Bonnitcha & Sarah Brewin, Compensation Under Investment Treaties, IISD Best Prac. Series (Nov. 2020), https://www.iisd.org/system/files/publications/compensation-treaties-best-practicies-en.pdf; Martins Paparinskis, A Case Against Crippling Compensation in International Law of State Responsibility, 83 Mod. L. Rev. 1246 (2020).

119 For example, the Free Trade Commission established in the North American Free Trade Agreement (NAFTA) decided that various terms in NAFTA, including “minimum standard of treatment” and “full protection and security,” referred to customary international law standards. The point is reinforced in Article 5 of the U.S. Model Bilateral Treaty of 2012. For the argument that norms such as “fair and equitable” are of a generative character and that state efforts to curtail arbitrators’ judgments in interpreting such terms can be likened to Canute’s efforts to stop the tide, see W. Michael Reisman, Canute Confronts the Tide: States Versus Tribunals and the Evolution of the Minimum Standard in Customary International Law, 30 ICSID Rev. 616 (2015).

120 Here, the arbitral tribunal found that Colombia’s environmental measures had violated the bilateral investment treaty even though the treaty explicitly provided that the state could make regulations directed at environmental protection, see Majority in Eco Oro v. Colombia Finds Violation of Minimum Standard of Treatment, Holds That a General Environmental Exception Does Not Preclude Obligation to Pay Compensation, IISD (Dec. 20, 2021), at https://www.iisd.org/itn/2021/12/20/majority-in-eco-oro-v-colombia-finds-violation-of-minimum-standard-of-treatment-holds-that-a-general-environmental-exception-does-not-preclude-obligation-to-pay-compensation. However, tellingly, in the damages phase of the case, no damages were awarded. For an arbitral decision which contrastingly upheld the environmental provision, see Red Eagle Exploration Ltd. v. Republic of Colombia, ICSID Case No. ARB/18/12, Award (Feb. 28, 2024). Even though successful, Colombia incurred significant costs in fighting the case.

121 See EU Notifies Exit from Energy Charter Treaty and Puts an End to Intra-EU Arbitration Proceedings, Eur. Comm’n (June 27, 2024), at https://ec.europa.eu/commission/presscorner/detail/en/ip_24_3513.

122 For instance Ecuador recently voted against the use of arbitration to settle disputes. See Ecuador Referendum Rules Out ISDS Return, Underlining Public Support for a Sustainable Path, IISD (Apr. 22, 2024), at https://www.iisd.org/articles/press-release/ecuador-referendum-rules-out-isds-return-underlining-public-support.

123 See, e.g., the ongoing deliberations of UNCITRAL, Working Group III: Investor-State Dispute Settlement Reform, at https://uncitral.un.org/en/working_groups/3/investor-state.

124 For a powerful account of racism as a structure, see in this collection of essays, E. Tendayi Achiume, Reparations, Race and International Law, 119 AJIL 397 (2025).

125 See Achiume, supra note 1.

126 Antony Anghie, Legal Aspects of the New International Economic Order, 6 Humanity J. 145 (2015).

127 For a philosophical approach to structural injustice, see the pioneering work of Iris Marion Young & Martha Nussbaum, Responsibility for Justice (2011). For discussions on the relationship between structural injustice and colonialism, see Catherine Lu, Responsibility, Structural Injustice, and Settler Colonialism, in What Is Structural Injustice? 107 (Jude Browne & Maeve McKeown eds., 1st ed. 2024). For a particularly interesting article that focuses on structural injustice and reparations, focusing on the CARICOM case, see Maeve McKeown, Backward-Looking Reparations and Structural Injustice, 20 Contemp. Pol. Theory 771 (2021).

128 Maxine Burkett, Climate Reparations, 10 Melb. J. Int’l L. 509 (2009); Sarah Riley Case, Looking to the Horizon: The Meanings of Reparations for Unbearable Crises, 117 AJIL Unbound 49 (2023).

129 See on this issue, and the divergent developments in state responsibility, the essays by Anne Orford, Reparations, Climate Change, and the Background Rules of International Law, 119 AJIL 25 (2025) and Lavanya Rajamani, Empowering International Law to Address Claims for Climate Reparations, 119 AJIL 25 (2025) (in this issue). The advisory opinion, just handed down by the International Court of Justice, significantly elaborates and clarifies the issue of responsibility for harm caused by climate change and the duty of reparation. See Obligations of States in Respect of Climate Change, Advisory Opinion (ICJ July 23, 2025), at https://www.icj-cij.org/sites/default/files/case-related/187/187-20250723-adv-01-00-en.pdf. The impact of this opinion must be left for a later occasion.

130 Táíwò, supra note 7.

131 Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (2009).

132 Special Rapporteur David R. Boyd, Paying Polluters: The Catastrophic Consequences of Investor-State Dispute Settlement for Climate and Environmental Action and Human Rights, para. 1, UN Doc. A/78/168 (July 13, 2023).

133 Id., para. 5.

134 Id., para. 41.

135 See, e.g., OECD, International Investment Law: A Changing Landscape: A Companion Volume to International Investment Perspectives (2005).

136 Special Rapporteur Boyd, supra note 132, para. 8.

137 Id., para. 20.

138 Sean Coughlan, No UK Apology Over Slavery at Commonwealth Summit, BBC (Oct. 19, 2024), at https://www.bbc.com/news/articles/c0qzkg0ldqzo.

139 Jason Haynes & Antonius Hippolyte, The Coloniality of International Investment Law In the Commonwealth Caribbean, 72 Int’l Comp. L. Q. 105 (2023).

140 Id. at 109. For an earlier study of these and related themes by a Jamaican scholar, see Norman Girvan, Corporate Imperialism: Conflict and Expropriation (1976)

141 Sovereign Debt Diplomacies: Rethinking Sovereign Debt from Colonial Empires to Hegemony (Pierre Pénet & Juan Flores Zendejas eds., 2021).

142 Mohammed Bedjaoui, Towards a New International Economic Order 41 (1979).

143 For figures, see Manfred B. Steger, Globalization: A Very Short Introduction 42 (6th ed. 2023). See also Jason Hickel, The Divide: Global Inequality from Conquest to Free, Ch. 5 (2017). See also for further information about the extent and impact of debt, UNCTAD, Topsy-Turvy World: Net Transfer of Resources from Poor to Rich Countries, UNCTAD Policy Brief No. 78 (May 2020), at https://unctad.org/system/files/official-document/presspb2020d2_en.pdf; UNCTAD, A World of Debt Report 2024, at https://unctad.org/publication/world-of-debt.

144 See Geoffrey Adonu, The Case Against International Arbitration in Sovereign Debt Contexts, in How to Reform the Global Debt and Financial Architecture (James Thuo Gathii ed., 2023) (which discusses the ramifications of the ICSID decision in Abaclat v. Argentina, which ruled that sovereign bond claims qualified as an investment and could be enforced via investment treaty arbitration). See also Ohio Omiunu & Titilayo Adebola, Sovereign Debt as Investments: Dispute Resolution and Restructuring in Times of Crisis, in How to Reform the Global Debt and Financial Architecture (James Thuo Gathii ed., 2023). The volume as a whole gives important insights into the issue of debt and its many effects.

145 See CARICOM Reparations Commission, 10-Point Reparation Plan, at https://caricomreparations.org/caricom/caricoms-10-point-reparation-plan.

146 Johnson v. McIntosh, 21 U.S. 543, 40 (1823).

147 Perrone, supra note 86.

148 Nesiah, supra note 62.