Reparations for colonialism and colonial-era atrocities have moved from an unrealized demand of citizens, politicians, and thinkers in the Global South to a project with some results in the real world. Key markers include the return of numerous art objects from museums in the Global North to their countries of origin;Footnote 1 the release of the Caribbean Community and Common Market’s (CARICOM) proposal for reparations;Footnote 2 and Namibia’s agreement with Germany on compensation for the German genocide against the Herero people in 1904–08Footnote 3 —along with the resultant controversy. These developments follow earlier claims for reparations directed to—and their eventual acceptance by—the governments of Canada and New Zealand, domestic courts in the Netherlands and the UK, and the Inter-American Court of Human Rights.Footnote 4 At the same time, it remains the case that reparations for colonialism are overall few and far between.
Political philosophers have been addressing the moral arguments for (and against) such reparations for decades.Footnote 5 Kok-Chor Tan identifies their key lines of inquiry: (1) Why reparations at all?; (2) Who is the claimant entitled to them?; (3) Who is the agent with the duty to provide them?; and (4) Can reparations be provided without incurring further injustices?Footnote 6 Their work highlights the practical challenges of identifying duty-holders, recipients, and modalities of reparations. Catherine Lu and Olúfémi O. Táíwò have argued for reparations in terms of responses to structural injustices created by (or still present from) colonialism, including as part of global distributive justice.Footnote 7
International law scholars have joined these debates more recently, in part in reaction to the paucity of reparations or to specific reparations schemes. The Germany-Namibia agreement has sparked particular inquiry among German academics, as both the negotiations—which excluded key stakeholders in Namibia—and the outcome—which included an apology and money but were not labeled as reparations—came under scrutiny. Legal scholarship has focused on whether international law does or can be interpreted to include a legal duty to provide reparations for colonialism itself or specific colonial-era atrocities. Antony Anghie and other Third World Approaches to International Law (TWAIL) scholars have traced the lack of a duty—and the obstacles to those arguing for one—to colonialism, where the law of state responsibility instead required ex-colonies to pay their colonizers.Footnote 8
But a larger question looms: whether international law’s focus on legal duties—arguments that the law requires reparations or that it does not; new interpretations to advance a particular claim; demands for acknowledgement of legal violations; or proposals for new duties—promotes the moral imperative to provide reparations. As I argue here, the search for a legal duty is fraught with assumptions about the desirability, influence, and feasibility of such obligations. When exposed, these assumptions suggest that that project, which comes naturally to lawyers, does not fit the moral and political complexity of the reparations challenge. Reparations for colonialism and colonial-era atrocities are likely to happen only through dialogue and negotiations by stakeholders in which legal duties are unlikely to frame, much less drive, the process.Footnote 9 International law can nonetheless be central to that process through a second way it which it works—its generative role to promote creative, authoritative resolution (or least amelioration) of different sorts of global disputes. In the case of reparations, it can provide guideposts and, at times, guardrails in the negotiation of reparations. International law has served this function concerning other global conflicts, so that those seeking reparations can utilize it without having to wait for acceptance of a new legal duty.
My argument is built upon the moral conclusions that philosophers reach via different routes: first, that colonialism entailed a unique set of injustices characterized by domination and denial of self-determination of peoples and nations, as well as the various atrocities committed as part of it; and second, that some individuals/states/institutions have a moral duty to other individuals/states/institutions to provide some form of reparations for the harms traceable to these injustices. It proceeds as follows. In Part I, I review the obstacles to a duty to provide reparations under the law of state responsibility and then evaluate and criticize certain proposals to find such a duty. In Part II, I turn to the law of transitional justice, which seems to offer an alternative framework for addressing reparations, but one I nonetheless find ill-suited to the task at hand. In Part III, I offer the alternative role for international law, one that seeks to facilitate the goals of reparations. International law offers standards for participation of stakeholders in negotiations, but it does not demand, nor should it, linkages between reparations and legal responsibility.
I will use the term reparations here to cover a range of measures to victims of colonialism that are meant to respond, in a broad sense, to the wrongs of the past. I will also focus upon reparations for the harms caused by the practice of colonialism itself, whether in the form of blue-water colonialism, land-based empires, or settler colonialism (even as most international law scholarship focuses on the first).Footnote 10 At the same time, at points I consider specific acts carried out as part of a colonial project—e.g., genocide, land grabs, or arbitrary detention.
I. State Responsibility: Worth a Fix?
The primary doctrinal hook used by legal scholars for addressing reparations—for colonialism or otherwise—is the law of state responsibility. Both its rules on assigning responsibility and on reparations play a leading role in legal analysis. In this part, I unpack the challenges to applying that law to the wrong of colonialism. I then appraise various strategies proposed to reform or save state responsibility, ultimately finding that they divert attention from the moral imperative of providing reparations. Indeed, I argue that framing reparations in terms of legal duties and entitlements has significant risks.
A. Identifying the Gaps
Much scholarship frames the legal issues surrounding reparations for colonialism in terms of the law of state responsibility, including by arguing that its rules do or should obligate such reparations. Yet, as others have recognized, the shortcomings of that law are overdetermined. To review them:
First, state responsibility assumes that the wrong to be rectified is constituted by discrete interactions between a particular wrongdoer and an easily identifiable victim (whether two states, or a state and a private actor).Footnote 11 Colonialism, on the other hand, was the epitome of what Iris Young labeled structural injustice, manifested by multiple (1) actors who can be considered wrongdoers (with wrongdoing itself fraught with complexities around intent, complicity, and knowledge), (2) harmed individuals and societies (who may be complicit in the wrongdoing), and (3) complex and perhaps unknowable causal pathways between them.Footnote 12 As Catherine Lu writes, the “interactional account of reparations that emphasizes the responsibility of direct wrongdoers to make reparation becomes less sufficient as wrongful conduct [is] enabled or … mediated by social and political structures and institutions.”Footnote 13
Second, and relatedly, decisionmakers have applied the law of state responsibility, and its requirement that a law violator provide reparations, to situations where law violation is the exception—a deviation from a background of compliance. Although this assumption does not appear in the Articles on the Responsibility of States for Wrongful Acts (ASRs) or the official commentaries, the use of the terms “an internationally wrongful act,” the careful definition of an injured state, the limits on countermeasures, and other clauses reflect a mindset that law violations are the exception to the normal course of events.Footnote 14 Where, however, wrongful behavior—broadly construed, whether it was viewed as illegal then or only now—is widespread or structural, as with colonialism’s systemic violence and denial of people’s ability to determine their destiny, law for ordinary times cannot capture the scope and nature of the wrongs requiring reparations. Carlos Nino expressed a similar idea in describing the inadequacy of criminal law processes to address “radical evil” in Argentina.Footnote 15 States can agree on reparations for mass atrocities and a breakdown of law, as they did after World War II, but politics more than customary international law’s rules on state responsibility drove their content.Footnote 16
Third, claims of state responsibility generally operate within a fairly constrained time frame between the conduct for which reparations are sought and the initiation of procedures to provide them. The commentaries to the ASRs generally cite International Court of Justice (ICJ) case law, arbitrations, cases in regional human rights courts, or investor-state arbitrations where the conduct started—and ended—relatively close to time to the institution of legal proceedings.Footnote 17 Those harmed are typically the actors making a claim; the entity accused of the wrong, namely the state, can defend itself. Although the law contains no arbitrary limit on when a state or person may seek reparations—the ASRs cover wrongs “having a continuing character”—the examples cited by the International Law Commission (ILC) involve decades, but not centuries.Footnote 18
With colonialism, even if we see its wrongs as ongoing (whether regarding settler colonialism or more generallyFootnote 19 ), the time since the end of formal colonial rule severely complicates applying rules that turn on identifying the wrongdoer and the victims.Footnote 20 Moreover, as Jeremy Waldron noted long ago, even an unjust act in the distant past has different effects over time. Some victims can mitigate harms over generations (think of the Gulf states); or the descendants of the wrongdoers may now have valid moral claims.Footnote 21
Fourth, reparations are a legal duty only if the conduct was illegal at the time it was committed (or, if its effects continue, has become illegal).Footnote 22 Scholars have recognized the intertemporality rule, or at least traditional interpretations of it, as one of the core weaknesses of the law of state responsibility.Footnote 23 Indeed, Germany’s invocation of intertemporality in negotiations over the Namibia is exhibit A of what some scholars see as the continued colonization of international law.Footnote 24
Finally, state responsibility’s command that compensation “wipe out the consequences” of the illegal act, while flexible in practice,Footnote 25 still does not grasp the structural injustices associated with colonialism (though perhaps it can do so for individual acts associated with it). State responsibility, grounded in corrective justice,Footnote 26 oversimplifies the problem of counterfactuals and baselines, both in the epistemological and moral senses. Epistemologically, determining how a colonial nation would have fared but for the act of colonialization cannot be compared to predicting the profits of a hypothetically un-expropriated factory in Poland in the 1920s or an investment under a bilateral investment treaty (BIT). As Katarina Schwarz writes, “At some point in the causal inquiry, harms become too remote to be the subject of a legal obligation [to repair]. This test is a consideration of legal policy rather than objective fact.”Footnote 27 Morally, the counter-factual baseline involves a choice—do we pick how the people of Benin would have fared if the French had not arrived at all, or if they had conducted trade with France on non-exploitative terms?Footnote 28
Moreover, as Robert Goodin has written, compensatory schemes that seek to restore the status quo can be in tension with distributive justice.Footnote 29 State responsibility seeks to restore a past that may be quite unjust; it is oblivious to initial or final distributions.Footnote 30 Corrective justice need not conflict with distributive justice, and indeed might be a first step toward it, an additional argument for it, or a way of setting priorities among different peoples deserving of it.Footnote 31 But a legal framework that sees reparations solely in counter-factual and corrective terms neglects the additional consideration of distributive justice.Footnote 32
B. Saving State Responsibility?
For legal scholars concerned with these features of state responsibility, one prominent agenda has been to save or decolonize it. Most focus on intertemporality and the challenge of finding colonial actors legally responsible for colonialism despite international law’s endorsement of colonial conquest—a project Andreas von Arnauld calls “illegaliz[ing] … the past.”Footnote 33
One strategy urged by several German scholars argues that a fuller look at international law at the time, including through recourse to Indigenous and non-Western sources, reveals that colonialism or aspects of it, such as indiscriminate killing of colonial subjects, were already illegal or at least heavily contested.Footnote 34 This work requires intense excavation into past attitudes about the legality of colonialism or colonial practices. It is certainly consonant with academic interest in dis/uncovering international law’s history. Yet it is likely to yield an ambiguous outcome, not a consensus that these practices were illegal.Footnote 35
A second argument views colonialism as an ongoing wrong for which intertemporality would not be an obstacle to liability.Footnote 36 This claim requires identifying ongoing aspects of colonialism and the international legal rules they violate. TWAIL scholarship seeks to identify the former, e.g., forms of domination by ex-colonial powers of global economic and political institutions. But it remains a challenging, and likely long-term project, to demonstrate that these practices violate today’s international law—whether on non-intervention, sovereign equality, self-determination, or human rights. Victims of colonialism should not have to wait for such a decolonization of all or even parts of international law, a process that requires waiting for new legal arguments to this effect to garner acceptance.Footnote 37
Other strategies seek not to work within intertemporality but to circumvent it—by arguing: (1) that it contains exceptions for jus cogens norms like the illegality of colonialism; or (2) that the teleology of state responsibility requires looking beyond formal illegality, an approach adopted by German courts after World War II. As Andreas Buser points out, the first is a stretch in terms of the jurisprudence of any international body or evidence of customary international law.Footnote 38 The second, however, is a more promising argument as a response to horrific atrocities. International tribunals have leapfrogged over non-retroactivity—at Nuremberg, an a fortiori case involving criminal liability of individuals—so this strategy may pay off in front of some court.Footnote 39
C. The Limits of Legal Duties to Provide Reparations
These strategies to save or decolonize the rule of intertemporality raise—or avoid—a much larger question: why should international law and lawyers focus their attention on finding colonialism or acts associated with it illegal in the first place? Doctrinally, the answer is obvious—because under the law of state responsibility, a state has duties of reparation if, but only if, it has been found to be responsible for an international wrong.Footnote 40 But this doctrine has unfortunate ramifications for thinking about reparations, actual or proposed.
First, it orients work toward identifying specific primary rules that actors involved in colonialism have allegedly violated, an exhaustive task that, seemingly unnoticed by those seeking to decolonize international law, just pushes arguments over reparations into a new box.
Second, an emphasis on legal duties creates a blind spot in diagnosing the obstacles to reparations. Various observers within and outside academia state or suggest that the lack of a legal duty is a major cause of the lack of reparations.Footnote 41 This view not only gives international law a lot of credit for determining state behavior; it also ignores that international law does not prevent states from agreeing to accept retroactive legal liability.Footnote 42 International law is not, in short, the reason that victims of colonialism are not receiving reparations.
Third, and most critically, the state responsibility approach constrains our understanding of reparations to mean only those that are legally required. On this view, reparations without an admission or finding of legal liability cannot be reparations, even if they come with an acknowledgment of a moral wrong or an apology. They become a gesture of charity at best.Footnote 43 In the case of the Germany-Namibia agreement, critics within the UN system, academia, and civil society have condemned Germany’s refusal to accept legal responsibility for the genocide, an attack that assumes that reparations are genuine or valuable only if they are a consequence of legal liability under the law of state responsibility.Footnote 44 Indeed, both UN special rapporteurs and scholars interpreted the absence of an admission of legal liability as furthering a racist discourse.Footnote 45
But why must reparations be accompanied by an admission or finding of legal rather than moral wrongdoing? I at least am unaware of research suggesting that victims of colonialism, or the slave trade, or other more discrete atrocities care more about an admission of the former than the latter.Footnote 46 Studies of victims of human rights abuses—though not victims of colonialism—reveal the range of victims’ demands, from vengeance to apologies to confrontation to jobs to monetary compensation.Footnote 47 Outsiders must be extremely wary of what Harvey M. Weinstein calls “an essentialized notion of victimhood, often stripping [victims] of any sense of agency.”Footnote 48 Although survivors of atrocities often want acknowledgment and an apology, it is very hard to know whether they, or victims or the descendants of victims of colonialism, seek an admission or finding of institutional legal liability.
Actual practice varies. In Germany’s reparations to Israel for the Holocaust, Germany did not admit legal liability.Footnote 49 Canada did not admit legal liability in the Indian Residential School Settlement Agreement; instead, the prime minister offered (only?) a profound expression of apology.Footnote 50 The CARICOM Ten Point action plan includes a “full formal apology,” but not any demand for an admission that colonialism was illegal.Footnote 51 On the other hand, legal liability is part of some reparations plans, typically as a result of a more judicialized proceeding. New Zealand’s reparations to Maori groups may follow a determination of legal liability by the Waitangi Tribunal (which is more of an investigative body than a court), and settlement agreements include an acknowledgment of a breach of the Treaty of Waitangi.Footnote 52 Those bringing cases on behalf of Indigenous groups against Latin American governments, or cases against the UK, the Netherlands, and Belgium for abuses connected to colonialism needed a ruling of legal liability to get reparations there.Footnote 53 At the same time, it is impossible to know how those victims would have reacted to the same remedy from the state pursuant to a negotiated agreement without such a legal finding. While an admission of moral responsibility is certainly important for meaningful reparations, the same cannot be said of legal responsibility.Footnote 54
The strongest reply to these points is that a legal entitlement by victims makes future reparations agreements more likely.Footnote 55 Outside the courtroom, plausible arguments that international law already requires, or even should require, reparations, increase pressure on political actors to provide them.Footnote 56 It gives those with less power globally a new tool that assert authority over an issue and overcome some power differentials.Footnote 57 In practice, we know that actors bargain in the shadow of the law (or courts) at the international level, whether concerning the ICJ’s rulings on borders,Footnote 58 the World Trade Organization (WTO) Dispute Settlement Body’s rulings,Footnote 59 or the recent decision of the UK to agree with Mauritius on the return of the Chagos Islands.Footnote 60 At the domestic level, the Canadian Residential Schools Agreement was a settlement of a lawsuit brought by Indigenous peoples. Matthias Goldmann has thus argued that an admission of legal liability could lead to larger reparations payments than acceptance of moral responsibility.Footnote 61
This argument raises issues about the influence of legal entitlements well beyond the scope of this short essay.Footnote 62 One obvious risk is that demands on states to recognize a duty could produce exactly the opposite effect. Namely, a state might be more likely to sign an agreement if it lacks acknowledgment of a legal duty. An approach by victims seeking reparations to a state with a claim that it has already violated international law, or an insistence on an acknowledgment of such a violation, or both, could easily torpedo reparations efforts. Target states may perceive such a claim as too confrontational or demanding and reject the whole idea.
But even if recognition of a new legal duty can push those who should pay reparations to do so, that effort requires a strategy. The arguments offered seem to be oriented to convincing a court. But an international court—and certainly the ICJ—is unlikely to accept the arguments for an international law duty of reparations for colonialism itself (though it could for certain discrete abuses). If advocates hope to achieve recognition of the duty through others means, e.g., a UN General Assembly resolution, I would emphasize again the length of time involved. My argument is not that such efforts are a waste of time, but that they have significant costs and divert us from the path toward the moral goal of actual reparations plans.
In the end, placing priority on a new legal duty to provide colonial-era reparations mirrors the moves of states opposed to reparations, who rely on the law’s absence of a duty to provide reparations (which is nonsense as states can always do more than what is legally required).Footnote 63 Law becomes an excuse by some actors for no reparations as well as a basis for demands that operate without regard to the moral and political complexities of achieving justice for historical wrongs. Such invocations are simultaneously overly assertive about international law’s power and yet impoverished as to its actual roles.
If instead we decouple reparations from legal responsibility, intertemporality is simply not an issue. For we can, as a moral matter, make some judgments about past conduct by today’s moral standards—an assumption underlying all criticisms of colonialism or slavery today. We need not settle for the extremes of the ethical relativist who evaluates conduct only by the standards of the past and the ethical presentist who evaluates it only by the standards of the present.Footnote 64 The gap between non-retroactivity as central to the rule of law and the flexibility of the concept in terms of morality suggests that the latter should not be hostage to the former. Indeed, as discussed below, a moral duty on the current generation to provide reparations can be justified irrespective of any determination of the moral blameworthiness of colonizers.Footnote 65
At bottom, the focus on state responsibility reflects a mindset that equates a just outcome with a legally required outcome, or that sees moral responsibility as inferior to legal responsibility. These views can be seen in, for instance, Carsten Stahn’s claim that “the turn to morality” is a response to a lack of legal responsibility for colonialism.Footnote 66 Yet as Rob Howse and Ruti Teitel among others have pointed out, tackling global challenges requires an appreciation of “other [i.e., non-legal] forms of normativity.”Footnote 67 Morality is not, then, a weaker normative framework than legality for considering and obligating reparations for colonialism.
D. What’s Left for State Responsibility?
Despite the mismatches between state responsibility and reparations for colonialism, it still can play three constructive roles in the project of reparations. First, for some discrete colonial practices, the model of state responsibility “fits” a wrong for which victims are seeking reparations. For example, where a theft of art from colonial peoples was clearly illegal at the time, where the victim and perpetrator are clearly identifiable and causation can be shown (perhaps between two states), and where the art is still held by the perpetrator, the ASRs would dictate a particular form of reparation—restitution.Footnote 68 Tendayi Achiume’s strategy, which points to the ongoing illegality of a practice, would also justify broader claims for art restitution, as the separation of the art from its homeland can be characterized as an ongoing wrong.Footnote 69 And certain discrete human rights abuses, such as those that prompted the litigation by Mau Mau torture victims against the UK or the child abduction victims against Belgium, can still be analyzed and litigated under the law of state responsibility.
Second, state responsibility can help generate ideas for reparations, just like other rules of international law that aid in concept formation.Footnote 70 In the context of slavery, Schwarz has emphasized the forms of reparation identified by the ILC, noted the difficulties with monetary compensation, and then argued for non-monetary forms, such as satisfaction.Footnote 71 Von Arnauld has creatively seized upon satisfaction as a remedy, interpreting it to impose a duty on states to negotiate in good faith over reparations.Footnote 72 Yet these boxes defined by the law are just one set of tools, to be supplemented by others, for example those offered by philosophers when it comes to identifying holders of remedial responsibilities.
Third, and as suggested earlier, claimants before domestic and international courts will have no choice but to invoke legal violations and legal duties. Courts have already found violations of domestic law and treaties for abuses connection to colonialism.Footnote 73 And they may at some point endorse some of the strategies noted above.
II. The Hard and Soft Law of Transitional Justice
International law has an alternative set of legal norms on remedies—transitional justice (TJ). Developed first in the crucible of the end of dictatorships in Latin America, the lodestar of TJ has always been a focus on individual victims—their wants and needs. It puts the corrective justice of tort law and state responsibility in the background in favor of restorative justice.Footnote 74 It thereby sees justice in terms of the recognition and the dignity of individuals—as restoring to them, to the extent possible, their agency and participation as a full member of society. The solutions devised within states looked past the “content of international responsibility” under state responsibility. The UN and other participants conceptualize these responses to gross violations of human rights differently from the ASRs—identifying four baskets: criminal accountability of wrongdoers; revelation of the truth, followed by official acknowledgment and apologies; reparations for victims (including psycho-social support); and mechanisms to prevent repetition of the violence of the past.Footnote 75 Some elements of these baskets are now viewed as legal obligations by regional human rights courts, treaty bodies, UN political bodies, and UN special procedures.Footnote 76 In this part, I will attempt to show that, despite its victim-oriented origins and focus, it still remains ill-fitted as a framework for discussing reparations.
A. Transitional Justice’s Promises
TJ stands in contrast to, and overcomes several of the shortcomings of, state responsibility. It works from a starting point of mass atrocities, not one-off violations, and appreciates the challenges of reparations when the pre-transition moral and legal order actively enabled violations.Footnote 77 Its responses to mass atrocities are based in law but not conditioned on a prior formal determination or admission of legal liability (even as courts and other actors regard certain measures as legally required).Footnote 78 It also recognizes multiple goals; restoration of the dignity of the victims is at the apex, but not from the perspective of corrective justice.Footnote 79 Decisionmakers also consider the interests of the losers in a civil war or members of a discredited prior regime so that a transition will stick and society can attempt some reconciliation.Footnote 80 It also is flexible, not insisting that every state apply all four baskets or create the same mechanisms within each. Finally, TJ is immensely practical in recognizing the need for compromise and cooperation, including limited amnesties or electoral participation by a rebel group despite its prior atrocities. It also reflects financial constraints on a state emerging from mass atrocities.Footnote 81
These features have led both the UN’s special rapporteur on transitional justice and scholars to deploy its tools to address colonialism.Footnote 82 With good reason, they seek to utilize an existing framework of international law for a new purpose, rather than design a new one.
B. Limits to the TJ Model
Yet TJ still has significant limitations as a framework for discussing, or set of rules requiring, reparations for colonialism.
First, like state responsibility, transitional justice assumes identifiable parties to the wrongs: the wrongdoer will be the state or a non-state armed group and perhaps foreign accomplices; the victims will be individuals subjected to grave human rights violations. Individual accountability, whether through trials or lustration, is in the universe of TJ options because states know who is responsible for the violations. Direct payments or services to individuals is warranted because they can also be identified. The structural injustice that characterized colonialism is not absent from TJ discussions—think of apartheid—but the emphasis on perpetrator, victim, and causation is strong. Göran Collste has argued that the various restorative goals of TJ may be impossible to achieve given the gravity of colonialism’s harms.Footnote 83
Second, domestic decisionmakers typically deploy the rules and norms of TJ as part of a hoped-for transition from violence and rule by the fist to democracy based on the rule of law.Footnote 84 Actors within functioning democracies have relied on TJ concepts and models, e.g., Canada’s approach to Indigenous schools; and scholars have argued for extending our notion of “transition” beyond the paradigmatic junta (or apartheid state, or state of emergency)-to-democracy scenario.Footnote 85 But building democracy and the rule of law are not obvious goals for reparations for colonialism; arguments emphasizing them cut against reparations to people living in states that are unlikely to become democratic any time soon. Those harmed by colonialism and living in non-democratic states cannot be less deserving of reparations. On the other hand, because TJ also seeks to integrate former foes into a post-conflict society more generally, and one of the challenges to a post-colonial world order is to foster such connections,Footnote 86 its tools and rules may yet prove relevant.
Third, TJ has its foundations and worldview in human rights—namely, how to address mass violations in the past and prevent them in the future. The injustices are framed mostly in terms of individual civil and political rights.Footnote 87 This framing fails to capture (1) the harms from colonialism distinct from violations of individual human rights, notably denial of a people’s self-determination, and (2) goals of reparations that transcend advancement of those rights.Footnote 88 Reparations are a continuation of the process of decolonization and self-determination.Footnote 89
Fourth, TJ’s norms largely address violations in one country.Footnote 90 While domestic decisionmakers may consider international aspects of earlier abuses (e.g., complicity by foreign actors),Footnote 91 their concern is principally with domestic perpetrators, bystanders, and victims. The context is one state’s history, politics, and transitional goals. Colonialism’s transnational scope creates new complications for recourse to the four pillars. For example, those advocating for truth-telling will need to decide whose truth must be told and how such a process is delimited. Devising measures to prevent future violations requires international cooperation in the context of blue-water imperialism. As a practical matter, because TJ is confined to one country, only one state’s decisionmakers must agree on it through legislation, referendum or a court ruling. Only one state’s budget is involved.
In the end, the picture is mixed. On the one hand, TJ’s recognition of victim interests, multiple goals, political compromise, practicality, reconciliation, and other values remains key to devising reparations for colonialism, just as it does for slavery. And some of its particular prescriptions are spot on—for instance, the imperative of memorializing the past would seem just as strong for events three hundred years ago as events thirty years ago; apologies and acknowledgment are still hugely important for even structural injustices.Footnote 92 On the other hand, TJ’s rules, norms, and best practices need significant rethinking to address the multi-generational, transnational structural injustice of colonialism, a point downplayed by the UN special rapporteur.Footnote 93 Part of this rethinking will require engaging with critics of transitional justice, whether of its effects on individual countries or on the practice of human rights generally.Footnote 94
III. Enabling Reparations: International Law Without International Responsibility
If international law does not—and, as I argue, should not—focus on colonialism’s illegality and a corresponding duty to pay reparations, what can it do? I argue for a role for international law and lawyers that takes account of law’s possibilities to facilitate reparations.
A. The Facilitative Role for International Law
International law’s promise and added value to achieving reparations for colonialism lies in generating, encouraging, and framing—both opening up and constraining—solutions arrived at through decentralized (and perhaps eventually centralized) processes. This generative role for international law, obvious to practitioners and so important in the real world, still remains in the shadows of doctrinal and even critical scholarship.Footnote 95 It is the bread-and-butter work of many international lawyers who negotiate treaties, resolutions of international organizations, and other instruments. It may entail reasserting (or re-interpreting) some existing obligations; distinguishing others as inapposite or anachronistic; turning non-binding prescriptions into new ones; borrowing concepts from one subject to apply to another; linking parts of an agreement with existing treaties and customary law in a way that both elaborates the meaning of existing law and could lay the groundwork for new law; ensuring that new obligations do not conflict with old ones; and incorporating institutional structures from other instruments. In a slightly different context, Rosalyn Higgins described another political process—the UN Security Council’s deliberations and resolutions—as “political operation within the law, rather than decision according to the law.”Footnote 96 This vantagepoint views law as tools and not merely rules, though lawyers have a responsibility to understand that decisionmakers can wield those tools for invidious as well as virtuous goals.Footnote 97
Legal duties are not always in tension with this function.Footnote 98 As noted earlier, a legal duty, perhaps recognized by an international or domestic court, can increase pressure on parties to negotiate. Indeed, von Arnauld’s proposal for a duty on ex-colonial powers to negotiate nicely threads the needle; it promotes international law’s facilitative role by seeking to push negotiations without specifying a substantive solution. Moreover, as discussed below, the legal duties on states should and will obligate certain procedures and even certain content of such agreements.
How would this generative role work for reparations? My starting point comes from Elazar Barkan, who theorizes reparations as fundamentally about resolving conflicts between peoples.Footnote 99 He sees restitution (his term for reparations) as essentially “a political dialogue among cultures and … multinational efforts to establish international standards of morality and cooperation as sites for future agreements.”Footnote 100 When reparations claims, negotiations, and agreements are viewed as part of conflict resolution, we can identify a distinctive role for international law and lawyers, one not focused on identifying violations in the past: facilitating reparations agreements.
Lawyers and international law already have contributed in this way to an analogous set of conflict resolution processes—peace agreements. As Christine Bell has demonstrated, negotiators, aided by lawyers, have over many decades helped design peace agreements, producing what she calls a lex pacificatoria. That law emerges from the practices of the parties and affects future practice in a “process of interaction between peace negotiations and international law that dialectically reshapes both.”Footnote 101 It generally provides enormous flexibility to the parties seeking to end an armed conflict. Its offers them a set of models, institutions, connections to other parts of international law, and best practices for agreements without mandating any terms. That law may rule out some provisions of an agreement, in particular those violating certain (but maybe not just any) human rights, with blanket amnesties as a key example.Footnote 102
B. Moral Wrongs and International Law’s Boxes
To see international law’s role going forward in negotiations over reparations, we need to return to the moral imperative and complexity introduced at the beginning of this essay. As stated earlier, (1) someone/thing today owes (2) someone/thing else today (3) some amount and form of reparations for the moral wrongs of colonialism. It is a moral duty grounded in restorative justice as well as (or at least should take into account) distributive justice. That duty entails reparations of financial form but includes other actions like apologies and memorials.
Yet each of these three parts of the moral duty of reparations underscores the challenges of identifying who should negotiate and with what outcome. Thus:
On the duty-bearer (1), and thus one side of the negotiations, at least five candidates can incur remedial obligations for prior wrongs. As captured by David Miller, they are: (a) the causally responsible agent (regardless of blameworthiness); (b) the morally blameworthy agent; (c) the entity with the greatest capacity to address the injustice; (d) an agent with special community ties to the victim; and (e) an entity benefitting from the unjust practice.Footnote 103 State responsibility recognizes only the first of these possibilities; TJ typically tends to merge the first two but generally assigns responsibility to pay to the state in whose name the atrocities were committed. But as Miller and others show with the inclusion of (c), (d), and (e) as grounds for a remedial responsibility, an entity can have a duty to remedy an injustice even if it played no role in causing the injustice.Footnote 104
On the victim or beneficiary of reparations (2), the present-day victims of colonialism writ large can encompass multiple groups (including people in colonial states).Footnote 105 The same is true for the present-day victims of other historical atrocities, whether transatlantic slavery or the genocide in South-West Africa. Parties of course can still agree conventionally on whom to include, but ex ante it is not clear who they are.
And on reparation itself (3), as noted, international law cannot tell us the amount and form of reparation, let alone whether monetary payments are sufficient. That amount will depend on, most obviously (but not exclusively), the goals of the program (e.g., an attempt to compensate for economic losses? a symbolic amount to show the gravity of the wrong? incorporations of elements of distributive justice?); the number and economic circumstances of the victims; and the means of those asked to pay.Footnote 106
Those negotiating reparations should thus recognize that international law’s rules on reparations cannot provide an answer to the three moral elements of colonial-era reparations. For the doctrinalists out there, this lack of fit should not be a problem, as international law’s secondary rules regarding responsibility and reparations are merely default rules around which parties can contract.Footnote 107 States will need to move beyond them—a strategy witnessed dramatically in the current state of international law on climate change. The Paris Agreement abjures traditional boxes regarding legal responsibility and reparations in prescribing obligations about climate change, whether through mitigation, compensation for loss and damage, or other measures. It recognizes, for instance, that all five potential remedial duty-holders have responsibilities; that the identification of victims and perpetrators can be challenging (even if all may agree that some island states are victims); that distributive justice has a role to play in assigning responsibilities; and that resources are limited.Footnote 108
C. International Law During Reparations Negotiations
This starting point of facilitating agreements suggests five general guideposts for the contribution of international law and lawyers to an emerging ius recuperationum.Footnote 109
1. Substantive Flexibility
Regarding the content of the agreement, for the reasons just stated, international law should leave core substantive provisions up to those negotiating them.Footnote 110 These matters would include:
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(1) the inclusion of any admission of legal responsibility.
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(2) the amount of reparations;
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(3) the extent to which reparations reflect distributive justice; and
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(4) the mix of monetary reparations with other reparative measures such as apologies or monuments.
A secondary issue concerns the extent to which reparations in an agreement are targeted to a narrower versus a broader set of individuals. Israel and Germany defined recipients of German payments as not limited to Jews deported to the camps, or their survivors, but rather the State of Israel and, through intermediary organizations, a range of survivors outside Israel.Footnote 111 In the case of the Germany-Namibia agreement, Germany’s payments (which the agreement does not call reparations) come in the form of foreign aid—an aspect of the accord that has come under significant criticism.Footnote 112
It is of course true that reparations are only reparations if they are meant to go to the victims of a historical injustice. Yet the vehicle of foreign aid does not itself seem dispositive of the justice of the plan. The CARICOM reparations plan includes a number of prongs that would qualify as development aid from former colonial powers.Footnote 113 If others in Namibia besides the victims gain from the payments (as for instance happened with Germany’s payments to Israel), that form of payment should not itself be precluded by any legal rule. The parties generally ought to be able to decide who, in essence, are the true victims and, relatedly, whether only those persons will receive reparations payments (subject to norms on political participation discussed in Point 2 below). And they cannot legally deprive non-parties to an agreement of their ability to seek reparations.Footnote 114
International law should assert a handful of substantive limits on reparations agreements, just as it does for peace agreements. An agreement that contradicted jus cogens—perhaps one to forcibly exchange populations to correct historical displacement—would be void ab initio. Provisions that violate duties of nondiscrimination would be impermissible; but a reparations plan benefiting one racial or ethnic group to the exclusion of others justified in terms of the identity of the victims (or their descendants) would not seem to constitute such discrimination.Footnote 115
2. Procedural Constraints
Whatever the agreement’s contents, its overall acceptability to stakeholders and its claim on them to comply—its legitimacy or internal morality—will also turn on how it was made, and by whom.Footnote 116 Here international law already has some relevant norms. Although I lack space to comprehensively identify them, one obvious candidate can be distilled from human rights law as well as the law of self-determination. Reparations discussions must include serious participation and a negotiating role for authorized representatives of those whom the agreement identifies as the victims of historical injustices. The International Covenant on Civil and Political Rights (ICCPR) has been interpreted to provide for rights of participation in governance even outside the electoral context.Footnote 117 In the case of negotiations between a state and Indigenous victims of colonial injustices, such as Canada’s, the special rights of Indigenous peoples require a substantive role for their representatives.Footnote 118
As for interstate reparations, although the Vienna Convention on the Law of Treaties (VCLT) is silent on who must participate in treaty negotiations, we have some evidence of acceptance by states of the need for victim participation in reparations agreements. When UN special rapporteurs criticized the Germany-Namibia agreement on the ground that the negotiations for it excluded certain descendants of the victims, Germany argued that they were in fact included, not that their participation was unnecessary; it emphasized that the Namibian government had a responsibility to consult with the affected communities.Footnote 119
International law does not, however, specify the full contours of such participation, e.g., who is an authorized representative of a group of victims. Nor does it provide a veto right to them over the views of their government on an interstate reparations plan, even in the case of Indigenous peoples.Footnote 120 It seems agnostic to the reality that governments have multiple agendas during reparations talks with other states and may shortchange those most affected by historical injustices or atrocities.
This aspect of the law has elicited careful moral reflection, as seen for instance in Leif Wenar’s analysis of the international law’s contribution to the resource curse through endorsement of dictators’ ability to sign away national resources.Footnote 121 Less philosophically, TWAIL scholarship has long called for decolonizing international law by reducing the power of the state and empowering non-state communities.Footnote 122 For now, I continue to see good reasons to allow states to have the final word on the content of international agreements. Alternatives can easily lead to paralysis in concluding a deal on reparations.Footnote 123 At the same time, states must improve their structures for incorporating the views of victims without giving them a veto. In the case of the Germany-Namibia accord, if descendants of the genocide survivors and victims were not adequately involved in the talks, that defect would clearly undermine the legitimacy of the accord.Footnote 124 Clearly, the government of Namibia has a duty to consult them, but, as noted earlier, it has no legal duty to satisfy them.
3. The Inductive Path: Gathering Best Practices
The above two top-down starting points for international law’s roles should be complemented by an inductive process. Scholars and lawyers need to conduct a bottom-up evaluation of existing reparations plans or agreements. As we examine them and the reactions to them by the participants, we can discover a set of best practices for such plans.Footnote 125
Two models of this process are the work of the UN special rapporteurs on business and human rights (John Ruggie) and on human rights and the environment (John Knox). Both norm entrepreneurs had intuitions or principles they sought to advance in their mandates—for business’s responsibility to protect human rights and for a human right to a clean environment, respectively. They laid the groundwork for the ultimate acceptability of these ideas by identifying best practices—instances of conduct (by corporations, states, courts, and other actors) that moved in the direction they advocated.Footnote 126 The results were enormous normative advances—the UN Guiding Principles on Business and Human Rights and the General Assembly’s unanimous recognition of a human right to a clean environment.Footnote 127
Such a search will need to extend beyond the well-studied cases such as Israel-Germany (and other Holocaust-related payments), Canada’s Indigenous schools, the U.S. payments to Japanese-Americans, New Zealand’s reparations to the Maori, and the court rulings against the UK, Netherlands, and Belgium. Such practices are already emerging when it comes to cultural property acquired by colonial powers.Footnote 128 Each will need to be analyzed closely for its approach to identification of victims, perpetrators, symbolic measures, and totals and forms of reparations payments. This process can advance a new set of global expectations on reparations.
4. Institutional Agents of Reparations
International lawyers can also devise institutional mechanisms for reparations plans. While bilateral implementation is possible, regional or global regimes and their accompanying organizations may be the optimal institutional sites for reparations.Footnote 129 The WTO, World Intellectual Property Organization, World Bank, International Monetary Fund, Paris Club, and other fora—the very institutions that many critical voices see as manifestations of (neo)colonialism—may turn out to be strong candidates for implementing mechanisms involving significant resource transfers or debt forgiveness. The institutions under the Paris Agreement, including those to get states to meet their nationally determined contributions or compensate for loss and damage, offers a set of models for resource transfers.Footnote 130
5. Easier Cases First
Lastly, lawyers are good at distinguishing between the practical and the ideal. To give one example, past practice would suggest that an intellectual and political agenda for reparations should start with colonial states vis-à-vis their former colonies, or a particular discrete atrocity where wrongdoer and victim can be easily identified, as opposed to reparations for the slave trade. In the former, the universe of moral duty-bearers when it comes to reparations is much smaller, largely because the five candidates discussed in Section A above overlap.
This confluence would seem to account for the few colonialism-related reparations agreements to date. For instance, regarding the despoliation of Nauru, Australia was (1) causally responsible, (2) morally responsible, (3) capable of paying reparations, (4) connected through special ties as the former administering power, and (5) the beneficiary of unjust policies. The victim too was easily identifiable—the people of Nauru. Just as it was obvious who should sue whom in the ICJ, so it was clear who should be at the table when it came time to pay.Footnote 131 The same dynamic underlies Germany’s restitution of the Benin bronzes or other long-term loans by Western museums.Footnote 132 I recognize that this sort of ordering strategy effectively asks some victims of colonial practices to wait their turn for reparations. But starting with the harder cases seems eminently less likely to produce reparations agreements.
D. And Back to Duties?
As Barkan points out, reparations agreements are a process, not an endpoint. Just as the 1951 Germany-Israel Agreement was the basis for other reparations agreements for the Holocaust, so starting with easier cases can break political logjams. As he writes, parties arguing about reparations must first agree on a “principle of restitution,” and then the details will follow.Footnote 133 In the case of international law and reparations for colonialism and colonial-era atrocities, that principle has yet to be accepted globally. The five points above endorse an organic approach to achieve it through individual agreements, shaped by international law and institutions, and an ongoing assessment of them.
Whenever in that process enough states accept the principle, one could imagine a legal form for it. A framework convention setting forth general principles and commitments for reparations for colonial-era acts would be a feasible first step. Such an accord would represent a proto-primary rule requiring reparations that could be developed in later bilateral or even multilateral agreements. A framework where colonial states would agree on certain basic principles and procedures might also constrain power differentials somewhat in the negotiation of individual agreements.Footnote 134 Over time, states could agree on new primary rules to contract around the ASRs default rules regarding intertemporality, compensation, and other matters. The results of their agreements would form the core provisions of more bilateral instruments, a multilateral convention, and perhaps eventually customary international law.
It is fair to ask whether this gentle move toward a legal rule contradicts or at least minimizes my earlier skepticism about legal duties.Footnote 135 Certainly, a strong version of that skepticism would argue against all legal duties on the view that states would be less likely to negotiate deals from that starting point. But I still wish to maintain the nuance and avoid a rigid position. Legal duties and entitlements are, as stated, ill-advised as a priority for the project of getting states to provide reparations for colonialism. That—not decolonizing international law—is the immediate goal, and international lawyers should focus on using international law in a way that facilitates getting states to the table. At the same time, duties and entitlements have their uses as levers in specific situations (e.g., where courts can force states to act). And, over time, a duty of some kind can make reparations agreements more expected than they are.
IV. Conclusion
As practicing international lawyers know, international law works only partly—and maybe not even principally—by imposing duties on global actors. Those seeking to derive a duty on states to provide reparations through state responsibility and, to a certain extent transitional justice, see law’s function in those terms. But international law has a second, more generative and facilitative role, one that requires more legal imagination than creating or interpreting different sources of law—a point crystallized in the distinction between the rule of law and the role of law.Footnote 136 International lawyers should recognize the enormity and novelty of their task: to address a transgenerational, transnational structural injustice and to reflect the multiple goals of reparations, whether restorative or distributive justice or conflict resolution. If international lawyers can set their priorities on facilitating that morally imperative goal and less on either (1) judging proposals against inapposite rules or (2) setting to fix international law first, our roles when it comes to reparations agreements can change. The means-ends calculus should not be reversed: reparations for colonialism and colonial-era practices should be seen as the end and not primarily a means to highlight shortcomings or deformities of international law. An agenda to eliminate the law’s colonial vestiges is distinct from—not a prerequisite to—achieving reparations.
When lawyers, academic or practicing, move from focusing on whether reparations agreements perpetuate the colonization of international law and turn to their impact on victims—or descendants of victims—we may begin to see some reparations plans as a first, imperfect, and not final step to restoring their dignity and improving their material circumstances. Thus, the Germany-Namibia agreement is significant as representing, for only the fourth time—beyond the Dutch and British courts’ damages to families of opposition leaders in Indonesia and Kenya and the Belgian court’s damages to children abducted from their families in colonial Africa—the payment by a colonial state to its former colony for colonial-era atrocities (though some have returned art objects or offered expressions of regret). Although it abjures legal responsibility and does not call them reparations, and it seems to have lacked necessary consultations with stakeholders, it does contain an apology, make payments, and link the payments directly to the genocide.Footnote 137
The conflict between the perfect and the good has many resonances in international legal practice. It arises in critiques of—and even court rulings about—the 1995 Promotion of Reconciliation Act in South Africa, part of the end of apartheid but which legalized a confession-for-amnesty scheme; the Dayton-Paris Accord that ended the war in Bosnia but entrenched ethnic identities in political decision making; or the Belfast-Good Friday Agreement, which also created community-based governance structures.Footnote 138 Scrutiny of future reparations agreements, just like peace agreements, requires unpacking compromises and deciding which can be justified, which excused, and which never tolerated.Footnote 139 The challenge is to reach a what Daniel Butt calls a “good faith” settlement.Footnote 140 These moral questions will confront all those involved in discussing reparations, including international lawyers. In the end, by facilitating reparations agreements, the law and lawyers can establish a principle of reparations for colonialism that will promote a process of future settlements.
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