I. Introduction
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. Footnote 1
The excerpted statement above was made on behalf of the United Kingdom at the United Nations Human Rights Council, explaining that nation’s vote in opposition to a resolution that annually aims to set a global agenda for “concrete action against racism, racial discrimination, xenophobia and related intolerance”Footnote 2 for United Nations member states. At least three features of this statement are noteworthy for my purposes.
The first is the UK’s repudiation of any obligations on the part of colonial and enslaving powers to make reparation for “the slave trade and colonialism,”Footnote 3 a repudiation that frames colonialism, including the transatlantic trade in enslaved Africans as terrible but lawful events in the past that render reparations demands legally moot. Secondly, the UK presents 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 4 It establishes 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. It also establishes a wedge between colonialism, including the transatlantic trade in enslaved Africans on the one hand, and contemporary racism on the other, calling instead for a “new approach, one that focuses on … the scourge that is modern-day racism.”Footnote 5 And finally, the UK repudiates the Durban World Conference Against Racism on the ostensible grounds of “historic concerns over antisemitism.”Footnote 6 In doing so, it dismisses entirely the 2001 World Conference Against Racism (Durban Conference) and its outcome—the Durban Declaration and Programme of Action (DDPA) as racist, eliding the fact that this convening, which as I discuss in more detail below, marked the largest transnational mobilization that combined demands for reparations with a framework for remaking the global governance of racism.Footnote 7
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.Footnote 8 In other words, one can read the UK’s statement as representative of a more widely held orientation among the Western bloc, where reparations and the global governance of racism are concerned. I contend in this Article that the three features of the UK’s statement identified above also make explicit some of the unstated but nonetheless dominant conceptions of the problems of race and racism in international law, and how they relate to colonialism and reparations.
An ambition of this Agora Symposium is to consider the state of the field of international law in relation to the question of reparations. Central to what is at stake, is the conception of reparations that orients the project and study of reparations. What international legal scholarship there is on reparations for colonialism, including the transatlantic trade in enslaved Africans, has largely focused on the mandated remedial framework for internationally wrongful acts. It locates colonialism, including the transatlantic trade in enslaved Africans, as events in the past with the salient conclusion often being that there exists no international legal obligation to make reparation for colonialism and the transatlantic trade in enslaved Africans. There are important reasons why this approach has dominated, not least of all because it is an approach that reflects the narrow paradigm for reparations constructed by customary international law as captured by the Articles of States Responsibility for Internationally Wrongful Acts (ARSIWA).Footnote 9 But I caution against an approach that conflates and thereby reduces the normative and programmatic core of reparations for colonialism and the transatlantic slave trade only to providing remedies for unlawful conduct in the past. I instead advocate the worldmaking approach described by Sarah Riley Case and Olúfẹ́mi O. Táíwò and others that conceptualizes reparations as concerned foremost with the undoing of colonial relations, structures of domination, and patterns of distribution that still structure global relations.
At least one implication of this much broader conception of reparations for international law, is that it renders the entire field essential doctrinal terrain for the pursuit of reparations. Such a view marks a departure from the more traditional approach which, as mentioned above, has focused on the doctrine of state responsibility for internationally wrongful acts. As critical international legal scholars have argued, at a systemic level, international law and colonialism were mutually constitutive, and this law continues to reproduce colonial injustice. As a result, the international law of reparations should be understood as exceeding the bounds of the ARSIWA paradigm and its narrow construction of the problem of redress for historical injustice. The very content and structure of contemporary international law doctrine governing trade, migration, war, and so on are all essential terrain and require interrogation from the perspective of whether they reproduce or redress colonial injustice—in other words, from a reparative anti-colonial worldmaking perspective.
Even as I make the point that reparations implicate all of international law, my primary focus here is on the international law governing race and racism. One approach to race and racism in relation to colonialism and reparations considers the colonial meaning of race and colonial structures of racial domination to be problems of the past. Their place on the reparations agenda is among the list of egregious harms of the past, for which some remedial action may be warranted in the present alongside other harms such as mass violence or other forms of brutality. There is a genuine risk that even with the recent transnational focus on reparations, colonial race, and racism will be treated in this vein and reduced to the status of past harms.Footnote 10
Such an approach does not go far enough to capture the technological value of race and racism—the powerful function they perform in reproducing and maintaining colonial relations and structures of domination. I argue a different approach is necessary—race and racism warrant being treated in international law as among the most consequential mechanisms of imperial ordering of people and places that were globalized by European colonial domination. Where the goal is justice for colonialism and its legacies—including, for example, historic greenhouse emissions—race and racism must be priority targets as enabling structures of the injustice at issue, and not simply considered as one of many wrongs one might choose to vindicate in due course. The contemporary international order remains tethered to historical colonial injustice, in part through the contemporary meaning and operations of race—a social construction that recapitulates colonial transnational hierarchies of people and place, even in the wake of the formal decolonization of much of the world. As such, race and racism and their contemporary global governance are priority terrain for the project of reparations. Relatedly, reparations are an urgent concern for the global governance of racism.
This Article proceeds as follows. Part II rejects the conception of the project of reparations that constructs the legal question of reparations as moot, and as a distraction from the pressing challenges of tackling contemporary racism and global inequality. I instead, as mentioned above advocate the worldmaking approach, concerned foremost with undoing of colonial relations, structures of domination and patterns of distribution that still structure global relations. I foreground the historical role of race and racism in colonial worldmaking and draw on the scholarship of philosopher Alasia Nuti to explain how race and racism operate as historical structures that reproduce colonial injustice into the present.
Part III considers the question: where does international law stand with respect to the structural reproduction of colonial hierarchy through racial injustice, and in particular, is international law fit for the purpose of reparative anti-colonial worldmaking? I draw on critical legal scholarship, especially that within the Third World Approaches to International Law (TWAIL) and Critical Race Theory (CRT) umbrellas,Footnote 11 to describe what I term the “colonial racial aphasia” of hegemonic international law. This is the tendency to elide race and racism altogether, or to treat their contemporary manifestations as wholly disconnected from their colonial origins, which has the effect of thwarting reparations. In this respect, dominant approaches in international law, and indeed flagship global policymaking mirror the position advocated by the United Kingdom in its statement.
I conclude in Part IV by reflecting on the role that transnational social and political movement resistant to racial injustice can play in orienting international lawyers’ momentum in the direction of reparative anti-colonial worldmaking. I also briefly consider the insights gained by framing decolonization as a requirement of reparative anti-colonial worldmaking.
II. Reparations, Worldmaking, and Structures of Historical Injustice
In this Part, I seek to do two things. First, to advocate an approach in international law to reparations that moves beyond the ARSIWA conception and instead understands reparations as an anti-colonial worldmaking project. This requires confronting European colonialism, including the transatlantic trade in the enslavement of Africans, as itself a worldmaking project, as historic injustice that has been structurally reproduced over time and that is manifest in the present. Secondly, I propose that the global governance of contemporary racism is a crucial mechanism through which reparative anti-colonial worldmaking is mediated. This is because contemporary race and racism operate as a transnational historical structure that reproduces colonial hierarchy in the present. This reproduction is not determined by law alone, but law, including international law, has a meaningful influence on this reproduction, especially the doctrine governing the bounds of the legitimate use and meaning of race.
What does the project of reparations mean for international law and international lawyers? The doctrinal landscape that has dominated what limited international legal scholarship there is on the topic, is that captured by the ARSIWA.Footnote 12 It is arguably this minefield of the law of state responsibility that has set the terms of debate and the programmatic agenda of proponents of reparations,Footnote 13 and understandably so. Article 13 of the ARSIWA codifies the infamous (in reparations circles) intertemporal principle and colonial and former enslaving powers have consistently clung to this principle as an insurmountable legal barrier to reparations, insisting that colonialism, including the transatlantic trade in enslaved Africans were not prohibited by international law during the historical periods for which reparations are demanded. A growing body of work, operating primarily within the ARSIWA framework, contests this assertion, and while that contestation is important,Footnote 14 it hardly begins to exhaust the field of work—even at the level of examining relevant doctrine—entailed by the question of reparations.Footnote 15
In an illuminating reflection on the multi-sited reparations advocacy of Caribbean nations, theorists, and activists, Sarah Riley Case argues that “reparations are foremost a horizon of transformation away from accumulative ways of life that spread from Europe to the world, structuring the present reality.”Footnote 16 She describes the Caribbean as “a fulcrum of anti-imperial thought that has generated many such worldmaking programs for international law[,]” and identifies its approach to reparations as a “worldmaking program[]” responsive to colonial and (post-)colonial hegemony but also anchored in “self-assured traditions of abolition, independence, Pan-Africanism, and regional solidarity.”Footnote 17 Riley Case’s framing of reparations is instructive on multiple levels. It helpfully reminds that just as the transatlantic trade in enslaved Africans and the broader enterprise of European colonial domination cannot be reduced to mere “breaches” of international legal obligations, international legal approaches to reparations must in equal measure resist reductive impulses, and instead begin from the premise that the ambition of reparations implicates worldmaking, or at the very least, an unmaking of the world wrought by European colonial domination.
The question of how to conceptualize, let alone address historic injustice on the scale of colonialism, including the transatlantic trade in enslaved Africans is, of course, profoundly complex.Footnote 18 In this Part II, I draw on the work of two political philosophers—Olúfẹ́mi O. Táíwò and Alasia Nuti—to elaborate on Riley Case’s invitation to appreciate reparations as a program of worldmaking, and specifically to situate the global governance of race/racism and international law within this program. I apply features of their conceptualizations of reparations and historic injustice respectively, to develop a theoretical account of contemporary race and racism’s relationship to colonial injustice and to the legal dimensions of the project of reparations.
A. Race, Racism, and Colonial Worldmaking
Táíwò draws on a transnational, anti-colonial, and anti-slavery canon to develop what he terms the “constructive view” of reparations as a worldmaking project.Footnote 19 He describes the contemporary world system as “Global Racial Empire,”Footnote 20 a legacy of European colonialism “in which laws and norms maintain the unjust distribution of racial capitalism.”Footnote 21 Within this landscape racial disparities in access to wealth, public health, and other social goods that structure intra- and international relations are the “present accumulated imprint of past racist distribution of resources and infrastructure.”Footnote 22 Drawing on the political philosophy of Charles Mills, he describes the contemporary operation of whiteFootnote 23 supremacy as maintaining the Global North as the location of accumulations of advantage and the Global South as the location of the accumulation of disadvantage.Footnote 24 The constructive view of reparations he advocates, and which he develops specifically in response to the world as constituted by transatlantic slavery and colonialism, is thus “a historically informed view of distributive justice, serving a larger and broader worldmaking project. Reparation, like the broader struggle for social justice, is concerned with building the just world to come.”Footnote 25
For international lawyers in particular, Táíwò’s analysis invites an important insight: the question of reparations cannot be siloed within and confined to the ARSIWA’s state responsibility paradigm, with its emphasis on discrete breaches and its temporal strictures. Instead, the question of reparations must be refracted across the entire field of international law to the extent that this field remains a means of perpetuating “the world” as constituted by colonialism, and as maintained by (post-)colonial imperialisms.Footnote 26
On this reparative anti-colonial worldmaking view, reparations must provide an adequate response to the colonial DNA of the global order, including the fundamental place of race/racism in colonial worldmaking. Critical theorists of race have long argued the mutually constitutive relationship among race, racism, and European colonial domination, identifying race and racism as both outputs and means of this domination.Footnote 27 Within European colonial empire “race became the fundamental criterion for the distribution of the world population into ranks, places and roles in … society’s structure of power.”Footnote 28 By the nineteenth century, “race” within the paradigm of European empire fused pseudo-scientific biological claims about racial categories to claims of moral superiority and inferiority of variously classified peoples.Footnote 29 And to be clear, even during the peak of colonial race science, “race” was a messy, inchoate category.Footnote 30 Writing on the establishment of the settler colony of South Africa, Joel Modiri, for example, describes European subjugation of “the indigenous African population and other oppressed groups”—all comprised of various peoples—and their racialization as “‘Blacks’ in the process of inventing the political category of whiteness.”Footnote 31 It bears underscoring that the colonial construction of race included the fabrication of “whiteness.” Relying on racialized stereotypes of natives and their colonizers, colonial authorities were able to promulgate legally sanctioned regimes of coercion and domination over the lives of the people they colonized.Footnote 32 Suffice it to say race and racism where crucial technologies of colonial worldmaking.
B. Race/Racism and the Structural Reproduction of Colonial Domination
The twentieth century marked the formal end of most, though by no means all European colonial empire. On the account of the United Kingdom referenced in Part I, and on the account implicit in hegemonic international legal doctrine,Footnote 33 this era of formal decolonization also heralded the end of colonial race and racism, thereafter to be replaced by “modern-day racism.” In effect, however, formal decolonization for colonized and enslaved peoples marked a transition not to full self-determination but instead to different modes of imperial domination compatible with, even if contested by post-colonial statehood.Footnote 34 Formal decolonization neither dismantled colonial race as a transnational structure, nor did it fundamentally disrupt the hierarchy of people and places characteristic of colonial racial ideology. This is not to say, as I will elaborately shortly, that the past and the present are identical. But notwithstanding significant shifts in the manifestations and operation of imperial relations and structures of domination, where race and racism are concerned, past remains present. I employ Alasia Nuti’s political theory of historical-structural injustice to crystallize the latter point. She offers an instructive approach to conceptualizing the means through which historical structural injustice is reproduced over time.Footnote 35
For Nuti, history is “embedded … in the present through long-term structures.”Footnote 36 History is thus not only comprised of discrete events but also of long-term structures, and among the examples she offers to illustrate this, is that of the enslavement of Africans in the United States. She describes slavery not merely an event in history but as “also characterised by long-term structures that constituted its possibility of existence and that may have outlived the ‘event’ of slavery….”Footnote 37 Slavery is thus also appropriately understood as instituting a historical structural injustice,Footnote 38 —an injustice that was initiated in the past but is reproduced over time in different ways even if its original forms may appear to have ended. In her account of the structural dimensions of slavery, Nuti includes “those long term structures, such as the creation of racial hierarchies, that sustained the institution of slavery over time during its different phases.”Footnote 39 She proposes that we see the persistence of historical structural injustices not simply as legacies of the past but as new outputs—structural reproductions carried forward into the present,Footnote 40 and significantly, they are carried forward through different means than may have been salient in the past. On her account, these new reproductions of historic injustice generate “stringent obligations of justice and redress,”Footnote 41 including in the register of reparations.Footnote 42 She also makes an important point regarding the plurality of historical structural injustices, and thus advocates a “pluralistic account of structural injustice, which highlights both the similarities and differences between types of structural injustice by looking at the role unjust history plays in their formation and persistence.”Footnote 43 My present concern is colonial racial justice, which can by no means exhaust the multiple and intersectional structural dimensions of colonial injustice, but is nonetheless an integral part of it.
The harms of colonialism have appropriately been variously conceptualized. Here, I am especially concerned with the relations among peoples and places that colonialism instantiated and institutionalized in the global order, namely a hierarchical ordering that dictated European primacy on a planetary scale. I am also concerned with the mechanisms of this hierarchical ordering or the modes of European domination—the how. In other words, I am concerned with colonial relations and structures of domination as historical structural injustices that are constitutive of our global order (the world) and that are reproduced into the present notwithstanding the formal repudiation of colonialism in international law.
Race and racism are central among the structures or conditions of possibility that facilitate the reproduction of colonial relations and structures of domination as historical structural injustices. As a result, we should understand race and racism as transnational historical structures that continue to reproduce colonial relations and structures of domination across space and time. To be clear, I am proposing that racialization and racism are not merely colonial injustices themselves but are also at the same time structures through which colonial injustice of various kinds is reproduced. The form and means that race and racism take vary across place and time but they still facilitate hierarchical ordering of people and places with striking faithfulness to the colonial ranking that constructed whiteness as its apex.Footnote 44 This is the case even for nations that have been formally decolonized. Today, “historically contingent social systems of meaning” and the “elements of morphology and ancestry [to which they attach]”Footnote 45 remain pervasively, though not exclusively anchored in the logics of European colonialism, including as instantiated in the transatlantic enslavement of Africans.
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 46 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.Footnote 47 So, too, the contemporary meaning of whiteness retains the colonially constructed presumptions of superiority and so on.Footnote 48 At the same time, as Nuti stresses—positing the reproduction of historical injustice (in my case, colonial relations and structures of domination) through what I am calling transnational historical structures (race and racism), accommodates recognition of the salience of change to those structures and to the injustices they carry forward.Footnote 49 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. 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 obtained under formal colonial domination. The contemporary meaning and function of Blackness or any other colonially originated racial classification shifts over time but retains its colonial core, keeping people and places fixed in their colonially stipulated hierarchy.Footnote 50 In this sense, the historical structural injustice of colonial relations and structures of domination is reproduced, but it is reproduced through different means, and also manifests differently.
To be clear colonial and post-colonial conceptions of race are not intended to exhaust the totality of contemporary social constructions of race. Consider, for example, important scholarship theorizing whiteness among Europeans as structured in part by the imperial rivalry between Eastern and Western European hegemony.Footnote 51 In addition, it bears mentioning that as a mechanism that operationalizes colonial relations and structures of domination, and that reproduces them over time, race and racism are globalized technologies.Footnote 52 I mean this in a number of respects. The first is geographic and speaks to the global or planetary scale of racialization and its injustices.Footnote 53 But the second sense speaks to the fact of race/racism’s global amenity to diverse imperial projects even beyond those directed by European colonial powers, a formation I take to include the United States and the other former British dominions.Footnote 54 White supremacy remains the dominant organizing principle of the international order. But at the same time, colonial racializations are profitable for elite and hegemonic actors globally, irrespective of the racialization of these actors. Black racialization, for example, specifically Black racialization in the present that retains the vestiges of racial meaning produced through the transatlantic enslavement of Africans, accumulates advantage including economic profit—to nations, corporations, and individuals racialized as Black, Chinese, Arab, Indian, and so on.
C. The Global Governance of Race/Racism and Reparative Anti-colonial Worldmaking
Racialization can and is wielded as a means of domination by peoples irrespective of where they are situated in the colonial racial hierarchy, and reparative anti-colonial worldmaking must be concerned with disrupting this technology, because the technology itself is a constitutive feature of colonial and (post-)colonial injustice. What is at stake in the project of reparations, then, is not simply relations between the colonized and the colonizers, but also relations among the colonized, and within colonizing nations as well.
When the project of reparations is appreciated as one of anti-colonial worldmaking, and when contemporary race and racism are appreciated as central among the means through which coloniality is structurally reproduced overtime, the contemporary global governance of racism (including through international law) is legible as a crucial site of contestation. Among the foundational insights of Critical Race Theory (CRT) is that law constructs race,Footnote 55 inter alia, because law defines the “spectrum of domination and subordination that constitutes race relations.”Footnote 56 Examining the legal construction of race includes examining “the extent to which law ascribes racialized meanings to physical features and ancestry, and of the ways in which law translate[s] ideas about race into the material societal conditions that confirm and entrench those ideas.”Footnote 57 Colonial law played an important part in the social construction of race as biological fact, and as a basis for instituting relations of domination. In fact, law itself is a structure that has been central to maintaining the role of race and racism in aiding the reproduction of the injustices of colonialism,Footnote 58 an issue that I take on more concertedly in Part III. My point here is to connect a foundational insight from CRT on the relationship between law and race/racism, to a framework for understanding reparations as a global project to disable the reproduction of colonial relations of domination.
Reparative anti-colonial worldmaking entails undoing race and racism as mechanisms for the structural reproduction of colonial injustice. In so far 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 disable the economic, political, social, and epistemic dominance they enable. A crucial site for these ambitions is the global governance of race and racism, which is comprised of binding international law, non-legally binding normative and policy frameworks, and an institutional infrastructure that is concentrated within the UN’s international human rights system.Footnote 59 Reparations necessitate tackling contemporary racism and global inequality, and conversely, the global governance of contemporary racism is fundamental to the project of reparations.
III. The Legal Reproduction of Historical Injustice Through the Global Governance of Racism
A. International Law and Colonial Racial Aphasia
International law’s formal narrative is of the unequivocal repudiation of the European colonial biological conception of race, and of racial discrimination in particular.Footnote 60 Few would dispute the pinnacle status of the customary international law prohibition on racial discrimination as jus cogens.Footnote 61 In addition, across the international legal framework 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 (ICERD) offering the most crystalized definition of and framework for the prohibition on racial discrimination.Footnote 62 So-called soft law frameworks have also developed within the UN framework intended to tackle the more broadly framed problem of “racism, racial discrimination, xenophobia and related intolerance,” with the most important being the Durban Declaration and Programme of Action.
All of the above might suggest a positive state of affairs—a doctrinal landscape fit for the purpose of unseating race and racism as a transnational historical structure that reproduces colonial relations and structures of domination. But the reality is rather different. In fact, international law’s hegemonic conceptualizations of race and racism tend to elide and obfuscate their colonial genealogy, and the manner in which they reproduce colonial injustice. In this sense, as it stands, international law operates more as a part of the problem (reproduction of colonial racial injustice) than as a part of the solution (reparative anti-colonial worldmaking). Recent legal scholarship maps a range of the deficiencies of international law practice and scholarship in this regard.Footnote 63 Here I draw on some of that scholarship and offer additional insights on these deficiencies, connecting them to illustrative jurisprudence concerning race and racism, and analyzing their implications for reparations. My goal is to highlight some of the ways international law aids the reproduction of colonial injustice through its construction of race and racism. I pay particular attention to how this law on racial discrimination currently frustrates, and in some cases actively prevents reparations.
Overall, international law exhibits what we might term colonial racial aphasia, drawing on the insights of Ann Laura Stoler and Debra Thompson. 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 64 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 65 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 66 For Thompson, racial aphasia produces “collective silences” regarding the racism as a global and pervasive social structure, and these silences themselves contribute to link “our racist pasts to the still racist present ….”Footnote 67
I combine Stoler and Thompson’s terminology—both of whom are concerned with colonial racial injustice as a historical and contemporary phenomenon—to describe hegemonic international law’sFootnote 68 approach to race and racism.Footnote 69 As noted in the prior part, the global governance of racism encompasses more than binding international law, but my focus in this part is the latter.Footnote 70 Colonial racial aphasia in international law entails complete silence on the relevance of race and racism, or where either is considered, colonial racial aphasia results in constructions of race and racism that sever them from their constitutive and reproduced colonial context. The result is that when hegemonic international law ostensibly disavows racism and/or colonialism, its aphasic construction of both perversely operates as a means through which the historic structural injustice of colonialism is reproduced. In doing so, reparative anti-colonial worldmaking is effectively thwarted. I emphasis “hegemonic” in the prior sentence because international law also exhibits judicial and related contestation of colonial racial aphasia, some of which I highlight in this part. But time and again, this contestation is overridden.
B. The Reproduction of Colonial Relations and Structures of Domination Through and in Spite of International Law
What I am calling colonial racial aphasia has been the subject of increasing analysis by critical legal scholars, even though this scholarship has not typically been advanced as addressing the question of reparations in international law.Footnote 71 What this scholarship has done is diagnose a series of interpretive and constructive moves that give effect to colonial racial aphasia in international law.Footnote 72 Central among these moves, which are distinct but overlapping, is the adoption by hegemonic international law of accounts of race and racism that are “depoliticized,”Footnote 73 “dehistoricized,”Footnote 74 and “domesticated” or “fragmented.”Footnote 75 The following examples vividly manifests a number of the constitutive moves that enact colonial racial aphasia. I analyze them for what they tell us about the role international law’s doctrine on racial discrimination currently plays vis-à-vis the project of reparative anti-colonial worldmaking.
A cornerstone of European colonial domination was the continental-scale theft of land from Indigenous peoples, and the consolidation of racially stratified ownership of this land.Footnote 76 As such, reparations—even narrowly construed as repair for completed breaches in the past—squarely implicate questions of (post-)colonial land reform. My interest here, however, is in examining the role of race/racism and law in the reproduction of colonial land relations, highlighting in particular how the prohibition on racial discrimination is mobilized in ways that frustrate reparative anti-colonial worldmaking. I do so through brief consideration of two legal disputes arising out of the land reform program pursued by the Mugabe regime under its controversial Fast Track Land Reform Program (FTLRP), one decided by a southern African regional tribunal,Footnote 77 and the other by an investment arbitration tribunal.Footnote 78
In 1980, when Zimbabwe gained independence from British colonial and settler rule, 6,000 white commercial farmers owned 42 percent 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 79 By 2000, five years before the FTLRP was adopted, Zimbabwe’s agrarian economy was still dominated by white-owned farms.Footnote 80 The FTLRP authorized the uncompensated, compulsory seizure of agricultural lands for redistribution, and formed part of a broader attempt by then-President Mugabe violently to remain in power.Footnote 81 In its broader context, I would not characterize the FTLRP as per se a reparative, anti-colonial worldmaking endeavor. That said, its core proposition—the redistribution of land whose title was colonially and racially designated—is a necessary feature of reparative anti-colonial worldmaking and it is the adjudication of this core proposition that interests me.
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 82 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 and as a result constituted unlawful discrimination under regional and international human rights law.Footnote 83 The Zimbabwean government countered, inter alia, that redress of structural inequality produced by colonial dispossession that agglomerated land to whites on a racial basis would in effect entail redistribution of predominantly white-owned farms.Footnote 84 It also noted that a number of Black-owned farms had also been targeted for acquisition and that compensation would ultimately be paid to all from whom land had been acquired.Footnote 85 On these facts, the Tribunal found that the government had violated the prohibition on racial discrimination because the FTLRP had an “unjustifiable and disproportionate” impact on “Zimbabwean white farmers only[,]” in violation of the International Convention on the Elimination of Racial Discrimination.Footnote 86
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 87 On the one hand, there were dimensions of the FTLRP that were legitimately flawed and unlawful, including from a perspective that genuinely prioritizes egalitarian land redistribution and racial justice in the country.Footnote 88 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 white farmers only.” In this regard, the Campbell decision is a stunning example of 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. 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 89 The Court is also dismissive of the fact that at the time of the FTLRP “large tracts of land [were] held almost exclusively by white farmers in Zimbabwe ….”Footnote 90 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 91
Ntina Tzouvala’s analysis of an international arbitral decision concerning the FTLRP further illuminates the work legal doctrine does to reproduce the colonial meaning of race even while professing a commitment to curtailing racial discrimination.Footnote 92 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 93 The timber farms at issue in this case were initially planted by the British South Africa Company (BSAC) following the forcible displacement of Indigenous communities who were forced into native compounds, and in the course of the colonial settlement of then-Rhodesia.Footnote 94 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 obligation erga omnes not to engage in racial discrimination.”Footnote 95
The von Pezold award manifests colonial racial aphasia.Footnote 96 In this regard, 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 97 Notably she underscores 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 98 In a 1919 British Privy Council decision adjudicating whether the British Crown or the BSAC held the title to large tracts of then Southern Rhodesia, the Council was unequivocal: “Whoever now owns the unalienated lands, the natives do not.”Footnote 99 The Council was also unequivocal about why so-called natives were incapable of holding title to their land: “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 100
Of course, the von Pezold tribunal said no such thing about contemporary Black Zimbabweans, even as it denied Indigenous communities with ancestral claims to the land the opportunity to participate as amici in the arbitration.Footnote 101 But as Tzouvala notes, in its insulation of the litigants’ property title from attempts to undo their racial foundations, international law is mobilized by the tribunal, in effect, to maintain colonial racial injustice as a contemporary feature of Zimbabwean’s relationship to their land.Footnote 102 Among the remedies ordered by the tribunal, was restitution of the litigants’ commercial farmland. The prohibition on racial discrimination was constructed by the tribunal in a manner that pits this prohibition at odds with the project of reparations.
The examples above concern the interpretation of the prohibition on racial discrimination by a regional tribunal and an international arbitral tribunal. The one that follows concerns the International Court of Justice (ICJ), the apex adjudicatory body of the international order, and its approach to ICERD and to the jus cogens prohibition on racial discrimination.Footnote 103
In 2024, per a request from the United Nations General Assembly, the International Court of Justice issued the advisory opinion on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem.Footnote 104 A comprehensive analysis of this opinion’s engagement with race as a structure that reproduces colonial injustice exceeds my current remit, but even the brief analysis that follows is sufficient to make the point that the ICJ’s approach to the prohibition on racial discrimination actively stifles the legal project of halting the reproduction of this injustice.
The Palestine Advisory Opinion put squarely before the ICJ the questions, inter alia, of whether Israel’s policies in the Occupied Palestinian Territories amount to: (1) prohibited discrimination under the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), and ICERD; (2) segregation or apartheid in breach of Article 3 of ICERD;Footnote 105 and (3) violations of the right to self-determination under international law. In a historic decision, the ICJ found in the affirmative on all three questions.Footnote 106 However, both the reasoning and findings of the Court again undermined the potential of the prohibition on racial discrimination in international law to serve as a meaningful counter to the contemporary reproduction of colonial relations and structures of domination. An article published by Noura Erakat, Darryl Li, and John Reynolds prior to, but in partial anticipation of the Advisory Opinion, provides helpful context for parsing this judgment.Footnote 107
Erakat et al. make the persuasive case that the question of Palestine in international law and the construction of the prohibition of apartheid in that regard paradigmatically demonstrates the necessity of international law critique and praxis that grapples with race and colonialism as constitutive of each other and of international law for that matter. They note two discernable conceptions of apartheid in international law: “an anti-colonial reading that emphasized the denial of a collective right to self-determination by an oppressive regime of racial domination; and a more liberal interpretation, as systemic discrimination within a state’s legal system against individuals from a particular racial group.”Footnote 108 Apart from the expressive ramifications of the different framings, they also entail different diagnoses of the salient harm, thereby necessitating different remedies. The former, which emphasizes apartheid as a denial of self-determination on the basis of and through race, necessitates “collective liberation and land back.”Footnote 109 It calls for legal and political realization of the right of the Palestinian people to collective self-determination. The latter enables avoidance of “reckoning with the material imperatives of decolonization in the face of an ongoing settler project … [and] can potentially be remedied by formal equality, without necessarily having to directly confront the colonial conquest and political economy that the apartheid regime has consolidated.”Footnote 110 For this reason, they note the prohibition on apartheid must be understood centrally to concern self-determination, and in particular the denial of self-determination through racial domination.
In the Palestine Advisory Opinion, the Court found that “Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the [Israeli] settler and Palestinian communities. For this reason, the Court found that Israel’s legislation and measures constitute a breach of Article 3 of [I]CERD.”Footnote 111 As David Keane observed following the opinion that the Court’s language could be read as a finding of racial segregation, apartheid, or both.Footnote 112 Judges on the Court adopted different perspectives on this question—at least two interpreting the Court to have concluded that Israel’s conduct amounted to apartheid,Footnote 113 and at least two concluding that it did not.Footnote 114 To the extent that the Court can be read as having concluded that Israel’s conduct amounted to apartheid, the reasoning of the majority opinion supports a liberal conception of apartheid that eschews an anti-colonial conception.Footnote 115 Its analysis of the application of Article 3 of ICERD, constructs the harm visited upon Palestinians by Israel as that of physical and juridical separation between Palestinian and Israeli settler communities.Footnote 116 This is as opposed to the harm specifically of colonial racial domination that circumscribes the self-determination of Palestinians through racialization.Footnote 117 In the relevant paragraphs the Court makes no mention of racial domination in relation to its finding of Israel’s breach of Article 3, and the Court is similarly silent on apartheid’s connection to self-determination.
Returning to my point above about the seeming hollowness of the hegemonic articulation of the customary international law prohibitions on racial discrimination (and apartheid), the Court’s avoidance of the norms in the Palestine Advisory Opinion is a case in point. In his separate concurring opinion, Judge Tladi notes that “the Court heard many arguments about the definition of apartheid in customary international law,” which is not defined in ICERD, and thus the Court had the “opportunity to provide a standard definition of apartheid under customary international law.”Footnote 118 Such a definition would have been an opportunity to elaborate an anti-colonial conception of apartheid as domination that racially circumscribes self-determination. The Court was willing to speak to “the principle of the prohibition of discrimination” generally, which it described as “now a part of customary international law.”Footnote 119 It identified, inter alia, provision of the ICCPR and ICESCR, and Article 1(1) of ICERD as giving effect to that principle. But the application of the customary international “the principle of the prohibition of discrimination” to race and racism in the opinion is left unstated. The Court also failed to make any specific mention of the prohibition of racial discrimination as jus cogens.
With respect to self-determination, the Palestine Advisory Opinion was historic, in being the first ICJ decision to pronounce the right of self-determination as jus cogens. Footnote 120 It found that Israel’s policies in the Occupied Palestinian violate this norm, but the Court also cleaved its self-determination analysis from any analysis of race or racialization as technologies through which the breach of self-determination is achieved. It is noteworthy, as highlighted by Erakat et al. that with respect to a comprehensive international legal accounting of the question of Palestine, the very framing of the General Assembly request for an advisory opinion, tactical as it may have been, itself limited the question before the Court to the self-determination of only a fraction of the Palestinian people, limiting scrutiny to Israel’s occupation “without confronting the racial and colonial regime[s] in which it is embedded.”Footnote 121
To return to the question that opened this Part: Where does international law stand with respect to the structural reproduction of colonial hierarchy through racial injustice? I have argued that notwithstanding formal repudiation of colonialism and its means and forms of domination, international law’s hegemonic operationalizations of the prohibition on racial discrimination tend not to disrupt the structural reproduction of colonial racial injustice. The interpretation and application of international legal doctrine governing race/racism tends to frustrate shifts that are more oriented toward reparative anti-colonial worldmaking, and this is achieved through approaches to contemporary forms of race, racism, xenophobia, and related intolerance that cleave them from their colonial past and reproduced present.
IV. Conclusion: Reparations as Decolonization
I have advocated for the necessity of an approach that understands reparations as concerned with undoing the injustice of colonial relations and structures of domination past and present, and with undoing the means through which this injustice is reproduced. The project of reparations is one of anti-colonial worldmaking. In particular I have argued that in light of the role that race, and racism play in effecting the reproduction of unjust colonial relations and structures of domination, the global governance of contemporary racism, racial discrimination, xenophobia, and related intolerance is a crucial site that mediates reparative anti-colonial worldmaking. Contrary to the approach manifest by former and ongoing colonial powers, and by hegemonic international law, contemporary race and racism as global concerns are intimately tied to colonial domination. Race and racism are forms of colonial injustice, but they are also as means through which colonial relations and structures of domination are reproduced. Eliding the ongoing intimacy between race and racism on the one hand, and colonial relations and structures of domination on the other—what I have termed colonial racial aphasia—thus short-circuits the project of reparations.
To conclude this Article, I return to a central question I have sought to address: How does the question of race and racism relate to the project of reparations in international law? I have argued that race and racism are fundamental terrain—they operate as crucial technology of unjust colonial ordering. International law and global governance frameworks more broadly help construct the meaning of race and racism, and the hegemonic operation of the law and these frameworks remain oriented toward obstructing reparative anti-colonial worldmaking. Yet this orientation is contested—jurisprudentially and more importantly, politically—through transnational mobilizations that have shown themselves capable of puncturing the colonial racial aphasia of the status quo, even if they as yet have been unable to carry the day. International law and the broader normative regime within which it is embedded will not achieve reparations. However, global governance regimes shape the battle terrain and conditions of possibility for these reparations. Legal doctrine and policy frameworks are capable of producing material differences in racial justice outcomes and this is a crucial reason that racially marginalized groups have refused to cede international norms as a terrain of struggle. It is also the reason the imperial hegemons—especially colonial and former colonial powers—remain actively invested in determining the content and trajectory of anti-racism norms.
A historic transnational mobilization that sought to advance the global project of reparations, was the Durban Conference. Over 4,000 NGO representatives were accredited for the official conference, more than 7,000 participated in the NGO forum, and 163 UN member states sent representatives.Footnote 122 In total an estimated 18,800 participated in this historic conference, which was preceded by four regional preparatory conferences.Footnote 123
The outcome of the Durban Conference was the DDPA, an ambitious volley intended to reorient the global approach to anti-racism, and ultimately the regional, national, and local conditions of racialized hierarchy. The DDPA identifies the transatlantic slave trade and colonialism as among the major sources and manifestations of racism, racial discrimination, xenophobia, and related intolerance.Footnote 124 With respect to colonialism, the DDPA states the effects and persistence of “structures and practices [of colonialism] have been among the factors contributing to lasting social and economic inequalities in many parts of the world today[.]”Footnote 125 It articulates a conception of contemporary racism, racial discrimination, xenophobia, and related intolerance that firmly connects them to colonial racial injustice. It also sets an agenda for economic and financial redistribution for the purpose of substantive racial equality; and a framework for implementation and follow-up mechanisms at the national, regional, and international levels.Footnote 126 Although the Declaration falls short of articulating a legal obligation on colonizing and enslaving states to provide reparations, it succeeded in articulating the structural continuity of racial meaning from the colonial past to the neocolonial present, the identification of which is a pre-condition for repair. To this day, WEOG states have worked to undermine the DDPA framework.Footnote 127
Since Durban, the most pointed transnational mobilization to resist colonial racial injustice was the 2020 transnational racial justice uprisings. 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. With respect to reparations in particular, at the time of the racial justice uprisings I argued that demands central to the mobilization were effectively demands for reparations as I have described the project in this Article.Footnote 128 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. I also argued that many of the social movements that catalyzed and led the protests have also been long at work producing granular knowledge on what reparations for colonial racial injustice can look like in their respective contexts.Footnote 129 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 historical structure,Footnote 130 even if this shift also catalyzed tremendous backlash and subsequent retrenchment.
At the heart of what unifies TWAIL scholars in particular, is a shared understanding of colonialism and international law as mutually constitutive. Put differently, colonialism and international law are ontologically connected. If that is the case, one might reasonably ask what TWAIL scholars are doing when we engage international law with anti-colonial and reparative worldmaking intentions. There is no law of any kind that could deliver repair for colonialism and slavery—this truism draws attention to a range of economic, social, political, and cultural determinants of injustice that cannot be dictated by law. At the same time, it remains the case that international law is instrumental to the arsenal that is intentionally and inadvertently wielded by former and contemporary colonial and enslaving powers to obstruct good faith efforts to reorient toward the ideal of repair. At least one motivation for engaging in legal debates about reparation is the aspiration of mitigating the harm perpetrated through international law, or more ambitiously the aspiration of prefiguring institutional arrangements that instantiate more just forms of interconnection.
What might the latter entail? Put differently, what should international lawyers do where reparative anti-colonial worldmaking to undo racial injustice is concerned? It is, of course, beyond the scope of this Article and indeed beyond the scope of the expertise of international legal scholars or any academics to articulate in any meaningful detail a utopic vision of the remade world(s) that are the destinations or outputs of reparations understood as worldmaking. That said, I have sought to highlight the role that critical legal scholarship that situates race and racism in their constitutive colonial context can constructively play in disrupting the reproduction of colonial injustice. I have also highlighted the contributions and ambitions of Durban. To be clear, Durban does not represent a perfect, neat, “realistic” solution to the problem of colonial racial injustice. We who are invested in anti-colonial worldmaking perpetually labor under the thumb of the expectation of perfectly formed solutions we are supposed to arrive at under conditions that are more structurally fertile for the problem (colonial racial justice) than the solution (anti-colonial worldmaking), and this expectation is itself a feature of that structure. I have instead offered the examples of Durban and the 2020 racial justice uprisings as interventions that, in the words of Vasuki Nesiah, “might denaturalize [the] status quo, and advance an alternative analysis of … international law and the ongoing legacies of a world order forged in the crucible of colonialism, slavery, and capitalism.”Footnote 131
Nesiah proposes that demands for reparations, including in the register of legal claims can serve to “refuse and interrupt”Footnote 132 what I have described as the reproduction of colonial injustice. They do so by unsettling the narratives and structures propagated by international law to maintain this status quo. 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 133 Anti-colonial worldmaking is a constructive project, but it is not one that could ever be actualized by anything as crude as a top-down blueprint developed a priori by well-meaning intellects of any stripe, let alone international legal academics. In so far as Durban and the 2020 transnational racial justice uprisings retell the story of the relationship among race, colonialism and reparations, we might see them as enacting critical politics of refusal and interruption of the reproduction of colonial racial injustice. They might also helpfully reorient international lawyer’s attention and energy away from reifying the status quo, toward scholarship and praxis that can disrupt colonial relations and structures of domination and in doing so begin to prefigure anti-colonial worlds.Footnote 134
TWAIL and other post-colonial international law scholars have devoted significant energy to precisely this project, but within the paradigm of decolonization, rather than that of reparations per se. Outside of law, Adom Getachew offers an incisive political theory of decolonization that highlights its worldmaking ambitions, against a standard view that treats decolonization as primarily a moment of domestic nation-building for formerly colonized nations.Footnote 135 Getachew argues compellingly that for Black anti-colonial nationalists, the project of decolonization was one that necessitated “the pursuit of international nondomination [and] entailed a thoroughgoing reinvention of the legal, political, and economic structures of the international order.”Footnote 136 Decolonization as anti-colonial worldmaking entailed a reordering of the international system, especially to ensure that its mechanisms for ensuring the political and economic domination of colonial powers over colonized peoples would be replaced with mechanisms more conducive to an egalitarian order premised on genuine recognition of and respect for the self-determination of the formerly colonized. The failures of anti-colonial world-making attempts in the 1970s, as TWAIL scholars have argued, are manifest in the enduring neocoloniality of the international order, a condition sustained through international law and not just in spite of it. As such, international law has been and remains a crucial lever in the pursuit of decolonization as a project of worldmaking, and a significant body of critical international legal scholarship maps and challenges the neocoloniality of international law.Footnote 137
As a practical matter, the canon of TWAIL and other critical scholarship that has attempted to chart a path away from the neocoloniality of international law in effect, is also doing the work of charting a path toward reparations as anti-colonial worldmaking. On the one hand decolonization and reparations are distinct paradigms and projects that cannot be collapsed into one another. But the project of reparations entails decolonization, and as Joel Modiri beautifully put it: “Decolonisation is an insatiable reparatory demand, an insurrectionary utterance, that always exceeds the temporality and scene of its enunciation. It entails nothing less than an endless fracturing of the world colonialism created.”Footnote 138
Open access
