For Whom is International Law?
I. Prologue
When President Trump took office on January 20, 2025, he issued numerous executive orders, among them one that suspended the admissions of refugees into the United States. This executive order includes carveouts for refugees whose admission may be in the national interest of the United States, and notes that it is the policy of the United States “to admit only those refugees who can fully and appropriately assimilate into the United States.”Footnote 1 A little over two weeks later, President Trump issued a second executive order entitled, “Addressing the Egregious Actions of the Republic of South Africa[.]”Footnote 2 This order directed the Secretaries of State and Homeland Security to “prioritize humanitarian relief, including admission and resettlement through the Unites States Refugee Admissions Program, for Afrikaners in South Africa who are victims of unjust racial discrimination.”Footnote 3 The “government-sponsored race-based discrimination” in question includes what the order describes as “countless government policies designed to dismantle equal opportunity in employment, education, and business[,]” including a recent law that, again, according to the order, “enable[s] the government of South Africa to seize ethnic minority Afrikaner’s agricultural property without compensation.”Footnote 4 The executive order targeting South Africa also halts all other aid or assistance to the country from the United States because South Africa has “taken aggressive positions towards the United States and its allies, including accusing Israel, not Hamas, of genocide in the International Court of Justice[.]”Footnote 5
In effect, having largely closed the borders of the United States to refugees, the U.S. presidency has created an exception to protect “ethnic minority Afrikaners” from purported state-sponsored racial discrimination.Footnote 6
What is the South African legal framework that the aforementioned executive order broadly refers to as “government-sponsored race-based discrimination”?Footnote 7 Although the order does not elaborate, its reference to “countless government policies designed to dismantle equal opportunity in employment, education, and business” can only be interpreted to refer to the constitutionally mandated affirmative action frameworks the South African government has pursued to redress the institutionalized White supremacy of the prior apartheid and colonial governments.Footnote 8 This framework includes the Broad-Based Black Economic Empowerment Act, whose fundamental objective is to “advance economic transformation and enhance the economic participation of black people in the South African economy.”Footnote 9
Afrikaners—the ethnic minority singled out by the Trump administration—are the descendants of the Dutch, whose settlement of the Cape began in earnest in 1652. Over the course of the next three centuries, British and Afrikaner colonial domination forged the nation-state of South Africa as an explicitly White supremacist state that subjugated the peoples of this territory as racialized Africans.Footnote 10 A legacy of this colonial foundation, which includes the formal regime of apartheid imposed by the Afrikaner National Party, remains a profoundly racially unjust social, political and economic order. According to a Land Audit by the government of South Africa, in 2017, more than 20 years after the formal end of apartheid, Whites, who comprise about 8% of the population, owned 72% of the country’s privately owned farms and agricultural land holdings.Footnote 11
Land reform is hotly contested in South Africa, and the government is subject to criticism domestically across a spectrum of perspectives—many argue it has gone nowhere near far enough truly to undo colonial land ownership, and some, including right-wing Afrikaner groups, argue it has gone too far. But I want to focus on President Trump’s framing of the Expropriation Act as “unjust racial discrimination,”Footnote 12 a framing that demands an understanding of race and racism that completely suspends the historical and contemporary context of South Africa’s colonial and apartheid foundations.
With this and other cases in mind, my lecture today considers the meaning of race and racism that dominates international law and international relations, the colonial context that has structured that meaning, and the project of redress that has received resurgent attention under the paradigm of reparations.Footnote 13
II. Land Acknowledgement, Thanks, and Outline
Thank you very much to the American Society of International Law (ASIL) and the International Legal Studies Program at American University Washington College of Law (ILSP), and especially Professor Padideh Ala’i for the invitation to deliver the Grotius Lecture. It is a real honor. Thank you also, Dean Hughes, for your generous introduction, and to my distinguished discussant, Jamil Dakwar. In preparation for this lecture, my reading included the final report of the ASIL ad hoc committee investigating possible exclusions or discouragement of minority membership or participation by the society during its first six decades. As I address you today, I am mindful of all of the work that many have done and continue to do to hold our society to the ideals it professes, not least of all Professor Henry J. Richardson III who chaired the ad hoc committee. I dedicate this lecture to my grandmother, whose life trajectory defies the regimes of subordination that she obtained at the time of her birth on a native reserve in colonial Southern Rhodesia.
In 1608, about forty years before the Dutch began settling the Cape of Good Hope, the first Europeans arrived in the native territories currently occupied by Washington D.C. Washington D.C. would go on to be a center of the domestic trade in enslaved Africans in the 19th Century, operating “one of the most active slave depots in the nation.”Footnote 14 Slavery was abolished here in 1862, but the injustices it underwrote remain with us to the present. This land on which we are present today is the ancestral land of the Nacotchtank Indians, who neighbored the Piscataway and Pamunkey peoples. This was a vibrant trading territory, rich in raw materials and abundant in crops. The Nacotchtank are said to have extended a warm welcome to early European settlers. But contact with Europeans would ultimately pose an existential threat to the Nacotchtank, fundamentally altering the course of their history and decimating their lifeways. According to officials at the National Museum of the American Indian, “there is no living Nacotchtank lineage left.”Footnote 15 The Indigenous Peoples who do still reside in the area continue to fight for, among other things, restoration and full recognition of their sovereignty.Footnote 16
My aim in this lecture is to reflect on the project of global racial justice and what it entails. At this time, when colonial racial domination remains entrenched and the global system faces profound reconfiguration, my remarks are in some sense an attempt to argue the urgency of a fight that has at its center a commitment to planetary interconnection on egalitarian terms. This is a counter to the unabashed weaponization of racial justice to entrench racial domination, which seems a central organizing principle of the current U.S. administration.
III. Looking to the Top: Racial Justice, Reparations and international Law
International law prohibits racial discrimination. As jus cogens, the prohibition enjoys the status of being “hierarchically superior to other rules of international law” and being “universally applicable.”Footnote 17 In addition, across the international legal frameworks enshrining human rights, discrimination on the basis of race, color, ethnicity, and related grounds is prohibited across treaty regimes, with the International Convention on the Elimination of Racial Discrimination offering the most comprehensive regime.Footnote 18 One might expect, then, that the international law prohibiting racial discrimination would have had an important role to play in undoing the racially unjust structures that European colonialism entrenched here in the United States, in South Africa, and everywhere else this entrenchment is manifest. One might expect the prohibition on racial discrimination has been central to providing reparation for colonial injustice.
Yet when this prohibition has been applied to the context of land reform in southern Africa—specifically Zimbabwe—by regional and international adjudicators, it has been applied to prevent rather than facilitate redress for colonial racial injustice. In 1980, when Zimbabwe gained independence from British colonial and settler rule, 6,000 white commercial farmers owned 42% of the country, secured through legal frameworks that on a racial basis dispossessed the Black majority of all but the most arid, infertile land.Footnote 19 By 2000, Zimbabwe’s agrarian economy was still dominated by White-owned farms. As part of a broader violent attempt to remain in power, then-President Robert Mugabe oversaw a constitutional amendment for land reform.Footnote 20 The Land Reform Program authorized the uncompensated, compulsory seizure of agricultural lands for redistribution, and formed part of a broader attempt by President Mugabe violently to remain in power.Footnote 21
Mike Campbell, a White Zimbabwean commercial farmer who had purchased his farm prior to independence, initiated a class action lawsuit that challenged the government’s forced, uncompensated acquisition of farms.Footnote 22 Central to this suit, which was ultimately adjudicated before the Southern African Development Community (SADC) Tribunal—at the time the apex regional tribunal—was the litigants’ claim that although the FTLRP did not de jure target farms on the basis of race, in effect it targeted only the land of White farmers in Zimbabwe.Footnote 23 On this basis—its disparate impact on White farmers—the litigants argued the Land Reform Program constituted unlawful discrimination under international human rights law.Footnote 24 Vindicating this claim, the Tribunal found that the government had violated the prohibition on racial discrimination because the Land Reform Program had an “unjustifiable and disproportionate” impact on “Zimbabwean [W]hite farmers only[,]” in violation of the International Convention on the Elimination of Racial Discrimination or ICERD.Footnote 25
The decision of the SADC Tribunal was surprising for a number of reasons, not least because the text of ICERD explicitly permits race-conscious “special measures” or affirmative action.Footnote 26 On the one hand, there were dimensions of the Land Reform Program that were legitimately flawed and unlawful, including from a perspective that genuinely prioritizes egalitarian land redistribution and racial justice in the country. But as I have argued in more detail elsewhere, the Tribunal’s finding of racial discrimination seemed not to rest on these flaws, and instead on the fact of “unjustifiable and disproportionate” impact on “Zimbabwean [W]hite farmers only[.]”Footnote 27 In this regard, the Campbell decision is a stunning example of what Christopher Gevers has termed the depoliticization and the dehistoricization of race, in a context where the contemporary salience of colonial injustice and the racial nature of that injustice were vividly manifest.Footnote 28
Nowhere in the Tribunal’s reasoning does it consider the fact that, prior to independence, and indeed when the farm owned by the lead plaintiff in the suit was purchased, Whiteness was the formal basis for title in the vast majority of Zimbabwe’s arable land.Footnote 29 The Court is also dismissive of the fact that at the time of the adoption of the Land Reform Program “large tracts of land [were] held almost exclusively by White farmers in Zimbabwe[.]”Footnote 30 The Tribunal’s conceptualizations of race and racial discrimination severed both from the historical and political colonial context that constructed their meaning, and as a result produced doctrine in the name of non-discrimination that further entrenched colonial racial meaning in the present. If Whiteness in Rhodesia meant a legal entitlement to arable land, and Blackness meant the negation of such an entitlement, the Tribunal’s decision effectively reproduces this colonial structure into the present.Footnote 31
Ntina Tzouvala1’s analysis of an international arbitral award concerning Zimbabwe’s Land Reform Program further illuminates the work legal doctrine does to reproduce the colonial meaning of race even while professing a commitment to curtailing racial discrimination.Footnote 32 Seven years after Campbell, an investment arbitration tribunal issued the von Pezold decision following claims brought by White foreign investors owning large commercial farms in Zimbabwe under bilateral investment treaties between Zimbabwe and Germany and Switzerland, respectively.Footnote 33 This tribunal was a tribunal of the World Bank’s International Centre for the Settlement of Investment Disputes or ICSID.Footnote 34
For an analysis of regional adjudication of the question of racial discrimination and land reform before the Southern African Development Community tribunal see E. Tendayi Achiume, The SADC Tribunal: Socio-Political Dissonance and the Authority of International Courts, in How Context Shapes the Authority of International Court’s (Karen Alter, Laurence Helfer & Michael Rask Madsen eds., 2018) [hereinafter The SADC Tribunal]. For an analysis of international adjudication of the same see Ntina Tzouvala, Invested in Whiteness: Zimbabwe, the von Pezold Arbitration, and the Question of Race in International Law, 2 J. L. & Pol. Econ. 226, 228 (2022) [hereinafter Invested in Whiteness]; Ntina Tzouvala, Full Protection and Security (For Racial Capitalism), 25 J. Int’l Econ. L. 224 (2022).
The timber farms at issue in the von Pezold case naturally have a colonial genealogy. They were initially planted by the British South Africa Company (BSAC) in the early 20th Century following the forcible displacement of Indigenous communities who were forced into native compounds in the course of the colonial settlement of then Rhodesia.Footnote 35 The tribunal found that through the FTLRP, Zimbabwe had failed to provide “a legitimate reason for implementing an unjustified policy that discriminated against the landowners on the basis of their skin-color and foreign ancestral heritage, thereby contravening its obligations erga omnes not to engage in racial discrimination.”Footnote 36 The tribunal insisted that “there [was] ample evidence that the Claimants were targeted in the present case on the basis of skin colour.”Footnote 37
In her analysis of the award, Tzouvala observes the depoliticization and dehistoricization of race and racism in the tribunal’s analysis, in which it constructed a firm temporal separation between the past as the locus of racial discrimination, and an egalitarian present that eschews that past altogether.Footnote 38 Of note she highlights the racial and temporal function of property rights in Zimbabwe, where private property rights were created to vest the economic interests of White settlers in land.Footnote 39 In a 1919 British Privy Council decision adjudicating whether the British Crown or the British South Africa Company held the title to large tracts of then Southern Rhodesia, the Council did not equivocate: “Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged.”Footnote 40 The same reasoning that naturalized the theft of native land as private property in the United StatesFootnote 41 would perform a similar function in southern Africa. This doctrine helped suture the worlds of the colonizer and colonized and effectively remains “good law” into the present.
In its insulation of the litigants’ property title from attempts to undo their racial foundations, international law was mobilized by the tribunal, in effect, to maintain colonial racial injustice as a contemporary feature of Zimbabweans’ relationship to their land. Among the remedies ordered by the ICSID tribunal was restitution of the litigants’ commercial farmland. The von Pezold family has since sought enforcement of the ICSID arbitration award in the United States, and in November 2024, the U.S. Court of Appeals for the District of Columbia ruled the award was enforceable in the United States, among other jurisdictions.Footnote 42
The application of the prohibition on racial discrimination in the two cases I have described replicates a dynamic that critical scholars of international law have identified as a general feature of the dominant approaches to race and racism in international law. To a great extent, international law’s dominant conceptualizations of race and racism tend to elide and obfuscate their colonial genealogy and the manner in which race and racism reproduce colonial injustice. Recent legal scholarship, especially within the traditions of Third World Approaches to International Law and Critical Race Theory, maps a range of the deficiencies of international law practice and scholarship in this regard.Footnote 43 Drawing on the work of scholars Ann Laura Stoler and Debra Thompson, international legal doctrine and global governance more broadly exhibit what we might call colonial racial aphasiaFootnote 44—“the tendency to elide race and racism altogether, or to treat their contemporary manifestations as wholly disconnected from their colonial origins[.]”Footnote 45 In her critique of French historiography, Stoler describes colonial aphasia as a “political disorder” characterized by “both the occlusion of knowledge as a political form and ‘knowing’ as a cognitive act.”Footnote 46 Aphasia is “a dismembering, a difficulty speaking, a difficulty generating vocabulary that associates appropriate words and concepts with appropriate things” where colonialism is concerned.Footnote 47 Debra Thompson builds on Stoler’s conceptualization of aphasia in this sense, to argue that the field of international relations exhibits a similar condition—racial aphasia—which entails a “calculated forgetting, an obstruction of discourse, language and speech” regarding how “the modern world system was founded on, and continues as, a hierarchical racial order.”Footnote 48 For Thompson, racial aphasia produces “collective silences” regarding racism as a global and pervasive social structure, and these silences themselves contribute to link “our racist pasts to the still racist present[.]”Footnote 49
Colonial racial aphasia remains manifest in the international order notwithstanding significant efforts to contest it. Consider the following example. In 2022, in the United Nations Human Rights Council, the United Kingdom voted against a resolution that annually aims to set a global agenda for “concrete action against racism, racial discrimination, xenophobia and related intolerance” for United Nations Member States.Footnote 50 The UK issued a statement explaining its negative vote, and what follows is an excerpt:
Mr. President, we remain resolute in our commitment to combating all forms of racism, racial discrimination and xenophobia and related intolerance whether that be at home or abroad : : :. Nonetheless, we have a number of concerns with this text : : :.
We do not agree with claims made in this resolution that states are required to make reparations for the slave trade and colonialism, which caused great suffering to many but were not, at that time, violations of international law.Moreover, these claims divert focus from the pressing challenges of tackling contemporary racism and global inequality—which are global challenges affecting all regions : : :.
Mr. President, we stressed last year that the importance of the fight against racism requires that we move forward together on a common path : : :. [W]e must come together to find a new approach, one that focuses on what we are all individually and collectively going to do to combat the scourge that is modern-day racism.
I have assessed this statement in more detail elsewhere,Footnote 51 but highlight two features for my present purposes. The first is that the UK repudiated any obligations on the part of colonial and enslaving powers to make reparation for “the slave trade and colonialism,” a repudiation that framed colonialism, including the transatlantic trade in enslaved Africans, as terrible but lawful events in the past that render reparations demands legally moot in the present.Footnote 52 Secondly, the UK presented demands for reparations as not only legally moot, but also as irresponsible distractions from “the pressing challenges of tackling contemporary racism and global inequality.”Footnote 53 It established a wedge between the project of reparations and the project of the global governance of racism, indicting attempts to connect these two projects as normatively and strategically counterproductive.
Although the UK’s statement was made on behalf one country, it captures the general orientation of the other colonial and former enslaving powers that form part of the Western Europe and Others Group (WEOG)—a consequential voting block and political influence within the United Nations. This general orientation minimizes the contemporary relevance of historic colonial racial injustice and is often put into practice through opposition to global governance reforms that could truly challenge this persisting injustice.Footnote 54 In place of the necessary reconfiguration of the global economic and political order, we are given, for example, the somewhat anemic Sustainable Development Goals,Footnote 55 and anti-reparative, predatory, and muscular international regimes such as international investment law.
On review of what international legal scholarship there is on reparations for colonialism, including the transatlantic trade in enslaved Africans, this scholarship has understandably largely focused on the mandated remedial framework for internationally wrongful acts.Footnote 56 This scholarship tends to locate colonialism, including the transatlantic trade in enslaved Africans, as events in the past with the dominant conclusion often being that there exists no international legal obligation to make reparation for colonialism and the transatlantic trade.Footnote 57 An important body of work, including two symposia convened by Judge Robinson of the ICJ and co-sponsored by ASIL and the University of the West Indies, challenge the view that reparations are foreclosed under the Articles of States Responsibility for Internationally Wrongful Acts (ASRIWA).Footnote 58 At the same time, as different actors pursue reparations within this framework, we should be wary of an approach that conflates and thereby reduces the normative and programmatic core of reparations for colonialism and the transatlantic slave trade to providing remedies for unlawful conduct in the past. Accountability for events in the past is critical, but so too is dismantling structures that reproduce historic injustice into the present.Footnote 59 Reparations in international law, and within the global system demands what scholars such as Sarah Riley Case, Olúfẹ́mi O. Táíwò, and others describe as a worldmaking approach: concerned foremost with undoing of colonial relations, structures of domination, and patterns of distribution that still shape global relations.Footnote 60
To a great extent, a preoccupation of my work as UN Special Rapporteur sought to document this racial reproduction of historical injustice on a global scale.Footnote 61 The contemporary meaning of Blackness, for example, retains the colonially constructed presumptions of danger, inferiority, “otherness,” and so on that are manifest transnationally, say in the frameworks that construct and govern criminality. So too, the contemporary meaning of Whiteness retains the colonially constructed presumptions of superiority and so on. This is not to say conditions in the 21st century are identical to conditions in the 20th or the 19th and so on. People racialized as Black, for example, are legally entitled to own land in places such as southern Africa, where prior to formal decolonization, land ownership was limited primarily to people racialized as White as a matter of law. This is an important and emancipatory shift in the legal meaning of Blackness. But land ownership in the region remains profoundly inegalitarian on a racial basis in significant part due to legal, economic, political, and social regimes that reproduce colonial relations and structures of domination, even though these regimes differ from those that were obtained under formal colonial domination.Footnote 62 The contemporary meaning and function of Blackness or any other colonially originated racial classification shifts over time but retains its hierarchical core, keeping people and places fixed in their colonially stipulated order. In my view, reparations are not only about what colonial and enslaving powers owe the peoples they colonized and enslaved. They are also about ensuring that China or Russia or India or South Africa or any other nation-state, or corporation for that matter, cannot rely on the transnational racial hierarchy that, for example, defines the labor of formerly colonized peoples as endlessly exploitable. The goal is a global order where race and racism no longer operate as generative economic and political transnational resources.
Insofar as race and racism are means of reproducing economic, political, social, and epistemic dominance by deploying scripts that associate morphology, ancestry, geography, and self-determination on terms defined through colonialism, reparations require legal frameworks that disrupt race and racism. A crucial site for these ambitions is the global governance of race and racism. Reparations entail tackling contemporary racism and global inequality, and conversely, the global governance of contemporary racism is fundamental to the project of reparations.
IV. “Looking to the Bottom”Footnote 63
International law is a site of contestation; it always has been. Whereas my remarks so far have focused on colonial racial aphasia in dominant conceptions and applications internal to the field of international law, such conceptions have repeatedly been challenged by mass mobilizations that have understood international law and sites such as the United Nations as crucial, but not exclusive or exhaustive, sites for emancipatory struggle.
In 2020, a movement that had gained momentum in the United States under the banner “Black Lives Matter” catalyzed a transnational mobilization against racism, with an emphasis on understanding contemporary racism as rooted in the legacies of the transatlantic trade in enslaved Africans and colonialism more broadly.
In the wake of the uprisings, a letter by over six hundred rights groups led by the ACLU and the U.S. Human Rights Network demanded that the U.N. Human Rights Council convene a special session to investigate the situation in the United States.Footnote 64 Prominent voices within this coalition self-consciously situated their appeal within a broader historical trajectory. Jamil Dakwar, my distinguished discussant and director of the ACLU’s Human Rights Program, for example, stated plainly that the appeal of human rights organizations to the United Nations in 2020 followed “the legacy of great Black leaders such as W.E.B. Du Bois, Martin Luther King, Jr., and Malcolm X who believed in internationalizing the struggle for human rights and racial justice in the United States.”Footnote 65 As early as 1947, the NAACP’s “An Appeal to the World,” drafted by Du Bois, was one of the first submissions by a nongovernmental organization requesting human rights investigation of a U.N. member state.Footnote 66 This and other early petitions laid the groundwork for the 1951 “We Charge Genocide” petition, which was submitted to the United Nations General Assembly by the Civil Rights Congress (CRC).Footnote 67
While earlier petitions had requested investigation into racial discrimination on the basis of human rights principles, the Civil Rights Congress’ petition directly invoked the newly enacted Genocide Convention to charge the United States with “conspiracy to genocide, as demonstrated by evidence of the suffering and deaths of 10,000 blacks and the ways they were uniformly segregated, despoiled, impoverished and denied equal protection as result of deliberate, all-pervasive policy of the government and those who controlled it ….”Footnote 68 Three quarters of a century later, South Africa is attempting to use that very Convention to put an end to Israel’s brutal, chilling military campaign and humanitarian blockade, which in the words of the U.N. Secretary General has turned Gaza into “a killing field.”Footnote 69
In 2020, and with respect to reparations in particular at the time of the racial justice uprisings, as Special Rapporteur on Racism I argued that demands central to the mobilization were effectively demands for reparations.Footnote 70 At the heart of the mobilization was a critique of the global reproduction of the racial injustices of colonialism and the transatlantic slave trade, especially in the realm of policing and law enforcement. Many of the social movements that catalyzed and led the protests had long been at work producing granular knowledge on what reparations for colonial racial injustice can look like in their respective contexts.Footnote 71
It is not an overstatement to describe what occurred in 2020 as a seismic shift in the global policy and popular discourse on racism as a transnational, historical structure even if this shift was constrained and also catalyzed the tremendous backlash and subsequent retrenchment.Footnote 72 The uprisings shifted the conceptualization and discussion of race and racism within the U.N. system, both in terms of norm and institutional development, as well as in terms of the organizational structure of the U.N. system itself.Footnote 73 The Office of the High Commissioner for Human Rights and the U.N. Human Rights Council are both sites where the 2020 racial justice uprisings shifted conceptions of racism more meaningfully to account for persisting structures of colonial injustice. Examples include the OHCHR’s Four-Point Agenda Towards Transformative Change for Racial Justice and Equality, which includes among the set of urgent measures required to end systemic racism the need for states to “[r]ecognise that behind contemporary forms of racism, dehumanisation and exclusion lies the failure to acknowledge the responsibilities for enslavement, the transatlantic trade in enslaved Africans and colonialism, and to comprehensively repair the harms.”Footnote 74 And in 2024, the U.N. Secretary General publicly called for reparations for the transatlantic trade in enslaved Africans “as a way to tackle its legacy in today’s society, including systemic racism.”Footnote 75 In this report, he notes that “[r]eparatory justice is not just about addressing the wrongful acts of the past, it is about building societies that are truly inclusive, equal and free from racism and discrimination. A comprehensive approach should, therefore, address the past, present and future.”Footnote 76 In my view, this framing of reparations was catalyzed by the 2020 uprisings.
Highlighting these shifts might seem to miss the forest for the trees. The United Nations confronts an existential crisis perhaps most concretely manifest in its acute liquidity crisis. What good are stronger antiracism norms in a seemingly imploding multilateral order? But whether one is invested in defense of this multilateral order or ultimately the pursuit of a more just system of planetary interconnection, neither end can be achieved by simply dismissing the forms of racial injustice that characterize the current order. A global system that fails to reckon with the antiracist demands of the transnational racial justice uprisings of 2020, or to reckon with the more recent transnational protests insisting on the equal worth of Palestinians, is demonstrably untenable. Equally untenable is a system that cannot counter the weaponization of antisemitism, of anti-Black racism, anti-Palestinian racism, or any other structure of subordination, especially when this weaponization is proving to be an effective tool for the dismantling of said system.
Attention to the real demands of social movements—not caricatures of their demands—is instructive. As rising authoritarianism challenges the liberal democratic order, those who have always been subject to the authoritarian relations characteristic of liberalism’s political and geographic borders have much to teach those who have always been liberalism’s insiders. As we bear witness to the weaponization of equality and non-discrimination, the weaponization of the project of building societies that are more just and egalitarian, it is as important as it has ever been to do the work required to ensure that self-determination does not function as a racial privilege.
V. Conclusion
What should international lawyers do where reparative anticolonial worldmaking to undo racial injustice is concerned? It is antithetical to the project of anticolonial worldmaking that international lawyers would articulate a ready-made utopic blueprint, not least because pushing past the injustices of our contemporary order demands different politics and indeed fundamentally different ways of relating to our planet. Vasuki Nesiah proposes that worldmaking demands for reparations, including in the register of legal claims can serve to “refuse and interrupt” colonial racial injustice.Footnote 77 For Nesiah, a politics of refusal of the status quo of international law and the colonial world systems it reproduces serves the critical function of making alternative worlds seeable and knowable.Footnote 78 Insofar as mobilizations such as the 2020 transnational racial justice uprisings or the 2001 Durban Declaration and Programme of Action retell the story of the relationship among race, colonialism, and reparations, we might see them as enacting critical politics of refusal and interruption. They might also helpfully reorient international lawyers’ attention and energy away from reifying the status quo towards scholarship and praxis that can disrupt colonial injustice.
For whom is international law? There are many different answers to this question. It’s for the powerful. It’s for the weak. It’s for no one. It’s for everyone. However, one answers this question, international law is a site of global contestation. It is a site that imperial hegemons have occupied to dominate. But it is also a site that those who have most powerfully contested this domination have repeatedly occupied as well. As international lawyers, we work in the service of all of these actors—imperial hegemons and anti-imperial resisters alike. It is crucial that we interrogate our service and that we have the courage to insist upon a global system capable of sustaining egalitarian interconnection across time and space.
Good evening, everyone. Thank you for inviting me to be the discussant of Professor Achiume’s keynote. It’s a real pleasure to be here with all of you; it is a bit overwhelming in a time when we are literally fighting for the basic principles of democracy and the rule of law, and for fundamental human rights, that all of you showed up tonight to hear this distinguished speaker and scholar. It is always hard to follow brilliant scholars and lawyers like Tendayi, but I will do my best. To her credit, and to make it easier on me, when we met two weeks ago at Princeton she told me, “You don’t have to comment on my remarks—just say what you want to say!” While I shared my thoughts on what I would say today, I also was thinking about how you would react if I deviated a bit from the discussion format. Well, we shall see…*
It is indeed very hard to distance ourselves from the reality outside, from President Trump’s executive orders and his administration’s vicious assault on basic precepts of humanity and democratic freedoms. While Trump might be seen as an anomaly in his failure to represent the American values of democracy, fairness, and justice that are so often touted these days, the United States’ domestic and foreign policies are rife with examples of U.S. exceptionalism and blatant disregard for the rules of international law and human dignity both for people who live here and for those who are impacted by American imperial wars, interventions, and exporting terrible instances of subjugation and oppression. As you’ve heard from Professor Achiume, there are a number of examples of these phenomena historically, whether it is the NAACP’s “Appeal to the World” and the Civil Rights Congress’ “We Charge Genocide”—and the way the State Department and the Truman administration responded to W.E.B. DuBois’ historic petition to the United Nations and how to deal with the “negro problem” at the time—or how long it took our nation to ratify the Genocide Convention, and why that was the case.Footnote 1 As you know, it was only in 1988 that the U.S. Senate ratified the Genocide Convention, and yet it hasn’t really made a successful difference as far as the U.S. prevention of genocide is concerned—as we have seen in the recent federal court case that was brought by the Center for Constitutional Rights regarding the Biden Administration’s complicity in Israel’s genocidal war in Gaza.Footnote 2 It was also evident in the wake of the Durban Conference on Racism where the United States has continued to reject the Durban Declaration and the Plan of Action to fight racism all over world, falsely claiming it was antisemitic while evading accountability over its abysmal record of racial injustice, and especially the demand for reparations.Footnote 3
During these dark times when not only international law, especially international humanitarian law, is being ignored at best and shredded at worst—but even domestic laws are blatantly disrespected and ultimately foregone, including bedrock principles such as the rule of law and separation of powers, with the independence of the judiciary being challenged at every instance—we come to collectively ask, “What is the point of practicing international law and defending the rule of law?”
As I was preparing my reflections on Tendayi’s keynote, I thought we should perhaps be thinking about using other methods to challenge the rise of fascism and authoritarianism. Perhaps, even as lawyers and legal scholars, we employ other tools that might be more effective to convey our message and spur collective action. So, I decided to borrow from Professor Derrick Bell’s method of telling fictional stories to make my points and reflections—or, at least, follow his fictional story.
In his best-selling book, Faces at the Bottom of the Well: The Permanence of Racism, Professor Bell uses fiction to illuminate truths about race and racism in the United States.Footnote 4 I think those fictional stories are more topical than ever, especially his story about Harvard University’s struggle with a lack of diversity and an abysmal record of low numbers of Black and other non-White minority tenured faculty and staff, and of course in the context of the Trump administration trying to pressure academic institutions, such as Harvard and others, to extort them in order to reshape American academia and virtually end academic freedom.
But what I want to share with you today is Chapter 9, titled The Space Traders, because it remarkably captured the reality that we live in today. I would like to just briefly tell that story if you have not read the book or that chapter—and it’s interesting, because it talks about space traders, which feels timely with all the headlines and economic upheavals around Trump’s trade wars. Basically, the story that Professor Bell tried to use is that the space traders are coming with a huge number of cargo ships with a promise to the United States and its political leaders to rescue the nation from its own environmental and economic demise, with the following proposition: “If you let us take all your Black people, the 20 million or so”—this happened in this fictional story in January 2000—“If you let us take all the Black people in America, we will give you in return the minerals, the rare minerals, the gold, and other resources that you need, and you’ll be able to prosper. Would you agree to that offer?”Footnote 5 And then the story goes into what happens, given that offer: both within the debates that are sparked by this offer, and what are the forces that are trying to push back against it—whether it’s really worth entertaining such an outrageous offer. And what’s important is that Professor Bell highlights these different groups of people, who are really pushing back against this very dangerous offer, and anyone who could comprehend such a thing. And yet you will see that there is a group, for example, of the Anne Frank Committee, Jewish resistors and activists coming together in secret to foil this plan—and others who are planning, including the story of a lawyer trying to be the “token” and trying to make a case for American leadership. And yet, at the end of day, even the legal challenge to the amendment to the Constitution allowing this offer to proceed is dismissed, with some interesting commentary on why the space traders’ offer is not something that could be litigated before U.S. courts—remarkably similar to the arguments currently made by the Trump administration against the role of courts to check the power of the executive branch.Footnote 6
At the end, the amendment passes, 70% favor the offer and 30% opposing. And of course, even though there was a collective sense that felt the amendment could be defeated, there was also a sense that it could actually happen, and it happens. So, even though it is a very grim reality, I wanted to share that because I’m going to come back to the Space Traders.
Meanwhile, I thought I would share with you some more hopeful and important developments that happened since 2020 that would help us address the significant deficit in making progress in the long-run—especially with regard to remedying historical injustices and making international human rights more impactful and relevant and lifting up those who are at the bottom of humanity’s well—borrowing from Derrick Bell’s book title.
First: for the first time, newly formed human rights mechanisms are not only mandated to monitor, document, and respond to ongoing violations of human rights, they are also tasked with investigating and highlighting the “root causes” of human rights atrocities. For example, EMLER, the Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement, was created by the UN Human Rights Council after the murder of George Floyd and in response to historic racial justice protests in the United States and around the world.Footnote 7 The creation of EMLER was the direct result of advocacy of not just more than 600 organizations that signed the ACLU and US Human Rights Network (USHRN) letter,Footnote 8 but also from the families of victims of police violence—including George Floyd’s family—that we had supported for their demand to establish a meaningful accountability mechanism to fight racist police killings.Footnote 9 While the United States and former colonial powers have blocked the African Group’s draft Council resolution that called for the creation of a Commission of Inquiry to investigate extrajudicial killings of Black men and women in the United States, EMLER was established as a consensus resolution a year later with a global mandate.Footnote 10 With that said, EMLER was given a very powerful mandate that includes “root causes” of present-day violations and addressing historical racial injustices, particularly in the context of colonialism and the trans-Atlantic slave trade.Footnote 11
The second example is coming from the UN, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel that was created in 2021; up to that point, most of the commissions of inquiry that were established to investigate Israel’s serious violations of international law were ad-hoc and only focused on the occupied Palestinian territories.Footnote 12 The new commission, which is chaired by South African jurist and former judge Navi Pillay, has an open-ended mandate that geographically covers historic Palestine which is fully controlled by Israel. That is really significant because it would allow the Commission to have holistic analysis and approach towards past and present violations and offer comprehensive solutions in line with international law. The other example is the Independent International Commission of Inquiry on Ukraine, that was established right after the invasion of Russia into Ukraine and has also a root causes mandate.Footnote 13
The other significant development that I’d like to highlight is the demand for reparations, as Professor Achiume has said—and I don’t want to repeat things that have already been said about the right to effective remedy under international law, but prior to the UN Secretary General’s call for reparations, the then-High Commissioner for Human Rights, Michelle Bachelet, made the call for reparations in her June 2020 statement to the Human Rights Council during its first ever “urgent debate on current racially inspired human rights violations, systemic racism, police brutality and violence against peaceful protests.”Footnote 14 That was the first time that the High Commissioner addressed the question of reparations head-on in this context. Her statement was followed by a landmark report in 2021 to the Council, which was based on what is commonly known as the George Floyd resolution that was adopted in June of 2020.Footnote 15 The High Commissioner’s report was heavily influenced by strong and organized civil society groups and directly impacted communities of African descent, which came together to form the UN Anti-Racism Coalition (UNARC), which successfully advocated for the creation of EMLER.Footnote 16
I would remiss if I didn’t mention that the Committee on the Elimination of Racial Discrimination (CERD) concluding observations following the United States’ review in August of 2022 for the first time took up the call for reparations.Footnote 17 It is worth noting that the movement for reparations has been going on in the United States for decades—it was only after 2020 that it got a little more mainstream and had become even the subject of Presidential campaigns.Footnote 18 And now, the CERD committee under the leadership of Professor Gay McDougall is working on a General Recommendation regarding “reparations for the historical injustices from the chattel enslavement of Africans and the subsequent harms inflicted upon people of African Descent.”Footnote 19 The UN Working Group of Experts on People of African Descent, which was created following the Durban Conference on Racism, has centered the issue of reparations in its work, including in two country visits to the United States where it discussed the imperative nature of instituting reparations in order to address inequality and historical injustices.Footnote 20 In two more important examples where I think it’s incredibly important to follow, that are also significant developments as far as internationalizing the movement for reparations, is the UN Permanent Forum on People of African Descent – that has centered reparations as part of its work, as well as the International Decade for People of African Descent, which was recently extended by ten more years; and now we have another chance to promote the call for reparations, especially as the Permanent Forum is advancing the adoption of a UN declaration on the rights of people of African descent.Footnote 21
As just a recent example: last July, the International Court of Justice (ICJ) advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem, concluded that “Israel is also under an obligation to provide full reparation for the damage caused by its internationally wrongful acts to all natural and legal persons concerned” in the occupied Palestinian territory.Footnote 22 Reparation, the ICJ concluded, “includes restitution, compensation and/or satisfaction.”Footnote 23
The last important development that I would like to mention is in the context of centering directly-impacted communities in the process of documenting, investigating, and debating solutions and accountability measures for rights violations affecting their past, present, and future. EMLER is again a great example, because a coalition of largely Black-led organizations successfully advocated for special language in the George Floyd resolution, making sure that the work of the new Expert Mechanism is closely consulted with directly-impacted families and people and individuals and communities, which has been the case since its establishment in 2022. The same thing for the commission of inquiries that had the root causes and centering directly-impacted communities. For the first time, you see on the podium of the Human Rights Council representatives from these impacted communities addressing the Council not from the back of the room, where they would have less than two minutes to retraumatize themselves, but rather have a respectful position to tell their painful stories and offer their transformative and informed solutions. The role of victims of atrocity crimes before the International Criminal Court (ICC) is yet another hopeful example that I think is really important to emulate, especially their formal standing in engaging, making interventions, and protecting their rights as part of ICC investigations, prosecutions, and trials.Footnote 24
Now, let me return and connect to what we heard from Professor Achiume about the role of lawyers, and back to Professor Derrick Bell. In the Space Traders, we’ve seen focuses, rightly so, through the eyes of Professor Derrick Bell—and other people in the United States—that have investigated, researched, and written about race and the law. We’ve seen that Black people are the ones to sacrifice to make this country better, or “great again,” if you wish. And this time, I want to warn that what is happening is not just Derrick Bell saying that there are Black people who are going to be denied equal rights and sacrificed, but there are other communities as well. Palestinian rights activists who are being snatched and abducted from college campuses and universities and being whisked to remote and abusive immigration detention facilities and threatened with deportation; immigrants, migrants and asylum seekers who are targeted as part of the Trump administration’s mass deportation plans, stripped of their humanity with no due process, using expedited removals and invoking wartime powers under the Alien Enemies Act of 1798.Footnote 25 We see the transgender community and other vulnerable communities who are being targeted and scapegoated.
And so, the question arises once more: “What is our role as lawyers? What are we going to do?” Many of you work in the civil society sector and in different organizations doing important work; many of you work in law firms with international practice that are being attacked. Maybe some of you are still in the government and doing your best to resist and combat these targeted, regressive attacks. So, this is the time for us as lawyers to define who we are and what our role is: in the face of the history of racial injustice, but also the history of violating human rights en masse. Are we going to be complicit, where complicity is what will make us survive, or resist? Is it our role to capitulate, or push back? Should we hold ourselves to an ethical rule, just as physicians and medical practitioners do: “do no harm”? Should we think about those role models, lawyers who did the right thing and stood against oppression, and paid heavy prices for doing so—those who were visionaries, and had so much to offer and do for us? I suggest that we all think about the little things we can do, the smallest actions we can take to prevent the atrocities being committed not only here, but also rippling impacts overseas, on international law and principles, and international institutions—as imperfect as they are, we have no other choice but to protect and defend them from attacks. Each one of us plays a small role in resisting: everyone in their own position—whether in a public interest organization, or a firm, or even in an individual capacity—you have a role to play to push back against this assault on democracy and human rights. Even then, our role is also not only to disrupt or delay; we have a critical role and responsibility to stand by the most impacted and vulnerable communities to defend their rights, help reshape the future of international rule of law, human rights, and justice bodies to effectively protect our shared humanity. Thank you.
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