Excerpted From: Andreas von Arnauld, The Third World and the Quest for Reparations: Afterword to the Foreword by Antony Anghie, 34 European Journal of International Law 787 (November, 2023) (80 Footnotes) (Full Document)

andreasvonarnauldWhat a Foreword! Antony Anghie has presented us with an authoritative tour d'horizon of the Third World approaches to international law (TWAIL) movement, its chief aims and topics, history and future. Including a survey of the most influential books and articles, this 'Foreword’ in the size of a small monograph will serve as an ideal entry point for students interested in TWAIL (Third World approaches to international law ). Far more than a mere introduction, though, Anghie's text also stimulates with his probing thoughts and reflections on two topics that are currently in the focus of his research (the colonial origins of human rights and the Third World and the reparations campaign) as well as on TWAIL (Third World approaches to international law ) as a cosmopolitan project.

How to comment on this rich article? Confessions first: I am no TWAIL (Third World approaches to international law ) scholar myself, but (hopefully) open enough to have learned from TWAIL (Third World approaches to international law ) over the last decade or so. For an illustration: after having taken up my current position in Kiel in 2013, my first seminar there was on the 'international law of development’ (Entwicklungsvölkerrecht); my most recent seminar dealt with similar topics but went under the title (and perspective) of 'postcolonialism and international law’. Also, whoever might venture to compare the last (fifth) edition (2023) of my textbook on international law with the first from 2012 (please spend your time on more valuable projects!) would notice some changes attesting to that personal learning curve. They were ever so slight, but, admittedly, textbooks are hardly the best-suited genre for iconoclasm (as I remember Gleider Hernández confessed in a workshop report on his own textbook at the European Society of International Law's 2018 Manchester conference).

Forced to choose from the panoply of topics offered by Anghie, I opted for one that connects with questions that have occupied my mind for quite some time now: how to redress past injustice (which is, of course, never 'past’ if its consequences can still be felt today) through international law. So, naturally, I was drawn to section 6 of the Foreword and immediately intrigued by Anghie's tale of 'two systems of reparations'. Interpreting his article as an invitation to join the debate, the following pages will be devoted to a critical analysis of the arguments usually raised against the Third World reparation campaign. For obvious reasons, as a trained and tenured international law scholar, I should not want to do away with international law as such because of its colonial roots, but there is more to it than professional conformism. Being convinced that law should be geared towards realizing fairness and justice (which I would deem a moderately 'utopian’ perspective), I would subscribe to Mohammed Bedjaoui, as cited by Anghie himself: 'But now the task of the law will be prospective and above all it will be more complex. Its object is now twofold for it must also help in its own transformation and contribute to eliminating that part of it which is resistant to change.’

2 The Tale of Two Systems

A Reparation Is Not Like Reparation: Reinforcing the Dynamic of Difference

In the section on the Third World reparation campaign, Anghie juxtaposes what he calls two systems of reparations: 'The first is the “Third World system”, which is still nascent and uncertain and beset by numerous legal obstacles. The second system, which is less recognized, is what I would call the “Western law of reparations”, one that is already in place, established and operating with great effect and consequence.’ The Third World campaign is aiming at redress for exploitation by the former colonial powers, whose definition of 'property’ and 'sovereignty’ enabled them to take land and resources from the colonized and claim it as their own. Anghie notes pointedly 'that the ingenious expansion of property rights through international law, and through the expansion of private property rights, was simultaneous with the dispossession of entire peoples of their lands, their territories, their very persons. The relationship is almost asymptotic, the property rights of European entities expanding as the non-European peoples were deprived of their lands and means of existence’. While this first, original expropriation was never remedied, reparation claims were raised as soon as the newly independent states wanted to expropriate in turn those corporations that had previously received their concessions by the former colonial powers. The basis for their claims was the law of aliens, which Anghie deconstructs in section 5 of his Foreword as a tool developed exactly for this purpose. Not granting a full compensation under the law of aliens would amount to a violation of international law and trigger an obligation to compensation as reparation under the law of state responsibility. A Catch-22 between primary and secondary rules of international law.

This differential treatment is grounded in what Anghie calls the 'defensive dimension’ of the 'Western system’, which 'blocks and denies Third World claims for reparations' by arguing why the two expropriations cannot be compared under international law. In the following, I want to focus on this 'defensive dimension’, for the arguments brought against the Third World claims for reparation contribute to what Anghie aptly terms 'the dynamic of difference’. There are three main arguments raised against a Third World claim for reparation: first, that whatever the colonizers did was not illegal at the time and is thus shielded by the doctrine of non-retroactivity; second, that there are practicalities and legal technicalities that speak against redress for wide-scale 'historical’ abuse; and, third, large-scale reparation schemes would be disruptive for today's societies. I will work my way backwards through these arguments.

[. . .]

Here, TWAIL (Third World approaches to international law ) indeed has provided us with 'the concepts, the intellectual vocabularies and the systems of thinking that have enabled international law scholars to pursue these intuitions'. That said, building international law on international solidarity, as proposed by Georges Scelle, could be one of several ways to offer alternatives to the neo-liberal capitalist framework of international law criticized by Anghie. It is important, however, to stress that this solidarity is not a natural given, as assumed by Scelle, but has to be actively realized through a purposeful application of the law. Here is, finally, where I see the deeper point of contact: stressing the plurality of voices--not only outside Europe and the West but also within the West--is an attempt to counter discursive hegemonies in international law, now and then. Then and now, apologists of power with their often closer ties to governments and state policies have attempted to define the law. To counter such appropriation, I highlight semantic struggles in order to focus on 'spaces and tensions within international law’. Understood as a means to challenge dominant assumptions about the law, this reverts us back to our own responsibility as legal scholars. Recently, Naz Modirzadeh has challenged TWAIL (Third World approaches to international law ) for not living up to its claim to make a difference for the people of the global South, lacking a programmatic agenda and ideas how to implement change. I do not wish to comment on that challenge, which she intends as a clarion call to the movement. Anghie himself admits that, 'while plurality might be one of the key attributes of TWAIL (Third World approaches to international law ), this might be seen as a flaw, signifying an absence of a focused and directed approach to international law and its transformation’. His suggestion of a 'cosmopolitan turn’ of TWAIL (Third World approaches to international law )--that is, to direct attention also to the 'Third World’ within the 'First World’ further blur boundaries between TWAIL (Third World approaches to international law ) and 'a broadly progressive liberal international law approach, whose adherents also express deep concern for the well-being of the people of the Global South’. However that may be, when it comes to specific projects, like the Third World campaign for reparations, I think it does not matter so much if one self-identifies as a TWAIL (Third World approaches to international law ) scholar as it does to work together towards the aim of breaking the 'dynamic of difference’ by employing international law.

Professor of Public Law, International and European Law, University of Kiel, Germany; Director, Walther Schücking Institute for International Law, Kiel, Germany. Email: This email address is being protected from spambots. You need JavaScript enabled to view it..