Decolonization and Reparative Justice: The Lack of a Comprehensive Treaty Regime for Redressing the Historical Harms of Colonialism

Zahra Yazdanmehr

Bachelor’s Student in Law, Shiraz University

Introduction

The international legal order faces a normative challenge in addressing the structural, economic, and cultural consequences of centuries of colonialism and slavery. Although the formal process of decolonization in the mid-twentieth century led to the nominal political independence of many nations, accumulated inequalities, the plunder of cultural property, and the profound social harms caused by systematic exploitation continue to be reproduced as tangible realities within the contemporary structures of the Global South. At the heart of this challenge lies the inability of traditional rules of international law to establish a coherent framework for redressing historical harms. The legal regime governing the international responsibility of States, rooted in principles developed by former colonial powers, tends to confine the question of reparation to bilateral, tangible, and contemporary violations. Such a reductionist approach excludes the structural harms of colonialism from the scope of legal assessment.

The legal and practical significance of this issue has grown in light of contemporary diplomatic dynamics, particularly the coalition-building efforts of Caribbean States and the African Union. Nevertheless, establishing historical responsibility and securing reparation for harms arising from the colonial era continue to encounter formidable obstacles, including various legal doctrines and the principle of non-retroactivity. The absence of a comprehensive multilateral treaty regime capable of moving the process of decolonization from the symbolic realm into the material sphere of reparative justice has created a profound normative gap. Accordingly, the central legal question is how the rigid structure of traditional rules of State responsibility can be transcended in order to develop a comprehensive treaty regime that, by linking reparative and transformative justice, can overcome the temporal and normative barriers to redressing the historical harms of colonialism.

Reparative Justice versus Classical Compensatory Justice

Explaining the dimensions of the existing legal gap requires a conceptual distinction between traditional compensatory justice and reparative or transformative justice. Under the classical model of international State responsibility, as reflected in instruments such as the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001), reparation is contingent upon establishing the existence of an internationally wrongful act, its attribution to the responsible State, and the need either to restore the legal situation that was violated or to remedy the harmful consequences resulting from that breach. Extending this traditional framework to claims for reparation arising from colonialism, however, gives rise to fundamental difficulties, because many colonial harms emerged not from a single, discrete, and attributable violation, but through historical, structural, and intergenerational processes whose destructive effects persist to the present day (Ratner, 2025).

This traditional approach, exemplified in classical international jurisprudence—most notably the judgment of the Permanent Court of International Justice in the Factory at Chorzów case between Germany and Poland—is premised on the assumption that the breach of a legal obligation creates a specific disruption within a bilateral legal relationship that must be remedied through restitution or equivalent compensation (Brunk & Hakimi, 2025). Colonialism, by contrast, cannot be understood as a phenomenon confined to completed historical events or merely as a series of isolated past breaches of international obligations. Rather, colonialism constitutes a historical and structural process whose consequences are reproduced within the social, economic, and legal structures of colonized societies through enduring mechanisms of domination, exploitation, and the production of inequality (Cusato, 2025).

Although restitution is generally regarded in the law of international responsibility as the preferred form of reparation, where the effects of a wrongful act have profoundly and durably transformed existing structures, full restoration of the prior situation may be practically impossible. In such circumstances, reparation must be pursued through a combination of other forms of redress, including compensation, satisfaction, and measures aimed at eliminating the continuing effects of the violation (Crawford, 2013). In the same vein, scholars associated with Third World Approaches to International Law, including Antony Anghie, argue that classical international law itself developed within the context of European colonial expansion, such that its foundational concepts—including sovereignty, property, and standards of civilization—were used to regulate and legitimize unequal relations between colonial powers and non-European societies (Anghie, 2012).

Unlike narrow approaches that focus exclusively on compensating past injuries, transformative justice emphasizes the need to alter the structures and power relations that were created during the colonial period and that continue to reproduce political, social, and legal inequalities between Indigenous communities and governing structures. From this perspective, the objective of transformative justice is not limited to repairing historical harms; it also entails institutional and structural reconstruction aimed at dismantling the enduring legacies of colonialism and establishing more equitable relations between affected communities and States (Nagy, 2021).

The Doctrine of Intertemporal Law and Temporal Deflection

The most significant technical and evidentiary challenge confronting legal claims concerning harms arising from the colonial era is the doctrine of intertemporal law (Fuhrmann & Schweizer, 2025). Under the well-known formulation articulated by Max Huber in the Island of Palmas arbitration (1928) between the United States and the Netherlands, the legal validity of an act must be assessed according to the law in force at the time the act occurred; although the continued existence of an acquired right remains dependent on its conformity with the evolving legal order over time (Murray, 2025). In legal debates concerning reparations for slavery and colonialism, some States, including the United Kingdom, have argued that the slave trade and colonial practices were not regarded as unlawful under the positive international law applicable at the time they occurred and that, consequently, there is no fundamental legal basis for imposing an obligation to pay reparations. This argument remains one of the principal positions advanced in opposition to claims for historical reparations (Malik, 2026).

This line of reasoning, which may be described as temporal deflection, treats present generations as being under no obligation by locating historical injustices in a distant past disconnected from the present. A prominent example of this strategy is the position adopted by the German Government in relation to the genocide of the Herero and Nama peoples in Namibia (1904–1908). Berlin has consistently invoked the principle of non-retroactivity, particularly with respect to the Convention on the Prevention and Punishment of the Crime of Genocide (1948), to which Germany acceded in 1955, in order to reject the jurisdiction of judicial bodies over such claims. By contrast, critical legal scholars argue that rigid adherence to the doctrine of intertemporal law effectively reproduces and perpetuates the colonial and discriminatory legal order that denied non-European peoples international legal personality (Graf, 2025). Accordingly, the legal challenge is to articulate and substantiate the proposition that certain humanitarian and human rights norms existed, even before their formal codification in international treaties, as peremptory norms or obligations erga omnes, and that their substantive scope should not be confined by purely positivist interpretations.

Empirical Analysis of Contemporary Practice

An assessment of contemporary diplomatic efforts to address the legacy of colonialism reveals profound fragmentation and divergence in State practice. In the absence of a coherent treaty framework, former colonial powers have sought to avoid recognition of legal responsibility carrying financial consequences by adopting unilateral, symbolic, and non-binding measures (Marconi, 2024). A closer examination of bilateral agreements demonstrates why such instruments are insufficient to achieve reparative justice. In the case of Namibia, the provisions of the 2021 Joint Declaration were widely criticized because of Berlin’s refusal to use the term reparations and its deliberate framing of the financial arrangements as development assistance. This approach, regarded by observers as a continuation of colonial paternalism, prompted Namibian lawyer Patrick Kauta to bring proceedings before the High Court of Namibia in January 2023, seeking judicial review and the setting aside of the Joint Declaration on the ground that the affected Indigenous communities’ rights to participation and consultation had been violated (Girardini et al., 2026).

Consistent with this pattern, the agreement concluded on 22 May 2025 between the United Kingdom and Mauritius concerning the Chagos Archipelago reflects the predominance of geopolitical and military interests over fundamental human rights (Afogo, 2025). Although the International Court of Justice, in its Advisory Opinion of 25 February 2019 in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, had emphasized the need to complete the process of decolonization, the 2025 treaty, by incorporating Article 6, which prohibits the return of the Indigenous Chagossians to Diego Garcia—their ancestral homeland and a place of profound spiritual and existential significance—for a further 99 years, perpetuated a form of forced displacement (Tranchez, 2025). The allocation of a modest £40 million in compensation for the Chagossians, when compared with the billions of pounds in revenues associated with the lease of the military base, led Human Rights Watch to characterize the amount not as genuine reparation, but merely as a footnote to a commercial-security agreement (Ngari & Baldwin, 2025). This outcome triggered strong reactions and protests from United Nations Special Rapporteurs and the Committee on the Elimination of Racial Discrimination in June 2025.

The Normative Gap in the Treaty Regime and the Persistence of Structural Inequalities

The roots of fragmentation and inequality in bilateral agreements must be sought in the absence of a general, coherent, and multilateral legal framework. Traditional international law lacks binding mechanisms capable of bringing former colonial powers to the negotiating table on equal terms with victimized communities, rather than merely with post-colonial States. First, the political balance of power has prevented the incorporation of principles governing historical responsibility into international human rights instruments. During the preparation of the draft International Covenant on the Right to Development, the latest draft of which was finalized in July 2023, sustained efforts by countries of the Global South to include an explicit provision requiring former colonial States to provide reparations for historical harms and to restore the property rights of subjugated peoples were ultimately removed from the final text following strong opposition and diplomatic vetoes by Western States (Tadeg, 2025). This demonstrates the structural resistance of human rights conventions to the incorporation of norms aimed at the redistribution of resources.

Second, a striking disparity is evident between reparations regimes in the fields of trade and human rights. While international economic law has established an effective, binding system equipped with rapid enforcement mechanisms to protect foreign investors against the nationalization of their assets by Third World States, the human rights and reparative claims of those same countries arising from centuries of exploitation, extraction of mineral resources, and ecological destruction are relegated to the realm of voluntary ethical measures and humanitarian assistance. This structural contradiction effectively facilitates the reproduction of neocolonialism, since developing countries, in order to meet their fundamental needs, are compelled to borrow from the very international financial institutions whose accumulated wealth is itself rooted in those historical processes of extraction (Agozino, 2026).

In response to this normative inertia, regional coalitions in the Global South have begun developing innovative and robust normative frameworks outside the traditional centers of international legal interpretation (PSC Report, 2026). The most significant step in this direction is the CARICOM Reparatory Justice Programme and the revised CARICOM Ten Point Plan for Reparatory Justice, presented in June 2026 during the historic conference in Ghana. Moving beyond the traditional approach centered solely on monetary payments, this framework places a systematic set of complementary obligations on former colonial States. These duties and obligations include formal apologies, financing for voluntary repatriation, cancellation of international debt, transfer of scientific technologies, and reconstruction of public health systems damaged by colonialism. In addition, the revised CARICOM framework places particular emphasis on gendered trauma and structural violence against Black women (Foster, 2026).

The African Union, drawing inspiration from this model, has likewise taken significant structural steps. At its 2024 Summit, it adopted a resolution designating the period from 2026 to 2035 as the Decade of Reparations for Africans and People of African Descent. Moreover, following the adoption of the Addis Ababa Declaration in September 2025, specialized legal bodies—including the African Union Committee of Experts on Reparations (AUCER) and the African Union Reference Group of Legal Experts on Reparations (AULER)—were established for the first time with the aim of developing common legal and judicial strategies for pursuing claims before international courts, in coordination with the CARICOM Reparations Commission in the Caribbean. This transnational synergy has laid the institutional foundations for a coherent legal bloc capable of challenging the interpretive hegemony of the Global North (African Union, 2026).

Legal and Institutional Solutions

Overcoming the existing normative impasse requires the drafting and adoption of a comprehensive multilateral convention on historical reparations and the realization of reparative justice. Such a convention should expressly declare the doctrine of intertemporal law inapplicable and legally ineffective with respect to acts that today would clearly constitute genocide, apartheid, slavery, and ethnic cleansing. This approach rests on the premise that these prohibitions, as core norms of customary humanitarian law and as principles derived from natural law, have always formed part of the body of peremptory and fundamental norms. Accordingly, the positive and racially discriminatory laws enacted by colonial States lacked fundamental legal legitimacy and cannot serve as obstacles to the administration of justice.

Unlike traditional State-centric regimes, which recognize only States as possessing legal standing to bring claims, the proposed convention should recognize a direct right of access to judicial mechanisms and a right to claim reparations for Indigenous tribes, local communities, and representative organizations of victims’ descendants. Such a structural reform would prevent contemporary governments from sacrificing the fundamental rights of Indigenous peoples in the course of bilateral political bargains and compromises—a problem that has already recurred in the cases of the Chagos Archipelago and Namibia. In addition, the restoration of the historical identity of dispossessed peoples through the restitution of cultural property and the human remains of their ancestors constitutes one of the key pillars of reparative justice (United Nations, 2025). The proposed treaty should require States to amend or repeal domestic laws that obstruct such restitution. For example, national provisions such as the British Museum Act 1963, which prevents the removal of Ethiopia’s sacred tabots, or France’s 2020 legal strategy of framing the return of the skulls of Algerian resistance fighters as a renewable loan, should be rendered ineffective and without legal effect on the basis of the normative supremacy of higher-ranking international norms (Chaggu et al., 2025).

Finally, the concept of environmental debt, rooted in colonial structures, should be codified as a binding legal obligation. The proposed convention should establish a mechanism for the adjustment and restructuring of developing countries’ debt on the basis of industrialized States’ historical contribution to environmental degradation and the accumulation of greenhouse gases (Khoday, 2025). Accordingly, the cancellation of the external debts of countries in the Global South that are simultaneously affected by enduring colonial harms and contemporary climate crises should be incorporated into the convention as one of the principal forms of reparation and as a means of giving effect to guarantees of non-recurrence.

Conclusion

The transition of the international system toward a more just and democratic structure requires an effective reckoning with, and movement beyond, the enduring and continuing legacies of colonialism. The inability of classical rules of State responsibility to remedy historical traumas and the structural poverty generated by exploitation makes the need to establish a comprehensive treaty regime more evident than ever. Efforts by developed States to substitute expressions of formal regret and voluntary development assistance for the acceptance of legal responsibility may be understood as a strategy aimed at obstructing the process of norm formation in international law. Nevertheless, the diplomatic and conceptual initiatives advanced by CARICOM and the African Union demonstrate that contemporary doctrinal and practical dynamics are undergoing rapid transformation.

Accordingly, international law cannot remain indifferent in the long term to the legitimate demands of the majority of the international community. The codification of a comprehensive convention on reparative justice should be regarded not as an optional proposition, but as a condition for the survival and legitimacy of international law in the twenty-first century. Within such a process, time would no longer function as an instrument for placing historical crimes beyond the reach of justice, but would instead become a mechanism for establishing genuine sovereign equality and intergenerational justice.

References

• Ratner, S. (2025). Reparations for colonialism beyond legal responsibility. American Journal of International Law. 119(3), 507–529. From: https://doi.org/10.1017/ajil.2025.10077
• Brunk, I., & Hakimi, M. (2025). Transforming the World with Reparations?. American Journal of International Law. 119(3), 380-396. From: https://doi.org/10.1017/ajil.2025.10095
• Cusato, E. (2025). Against temporal abstractions: The battle for colonial and climate reparations in international law. International Journal of Law in Context. 21(2), 281–299. From: https://doi.org/10.1017/S1744552325100074
• Crawford, J. (2013). State responsibility: The general part. Cambridge University Press. From: https://doi.org/10.1017/CBO9781139033060
• Nagy, R. (2021). Transformative justice in a settler colonial transition: Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada. The International Journal of Human Rights. 26(2), 191–216. From: https://doi.org/10.1080/13642987.2021.1910809
• Anghie, A. (2012). Imperialism, sovereignty and the making of international law. Cambridge University Press. From: https://doi.org/10.1017/CBO9780511614262
• Fuhrmann, R., & Schweizer, M. (2025). Ending the past: International law, intertemporality, and reparations for past wrongs. German Law Journal. 26(8), 1539–1559. From: https://doi.org/10.1017/glj.2025.27
• Murray, R. (2025, November). Inter-temporality and reparations for colonial and other historic atrocities. Faculty of Law, University of Oxford. From: https://www.law.ox.ac.uk/sites/default/files/inline-files/OPBP%20Inter-temporality%20and%20reparations.pdf
• Malik, N. (2026, April 22). Reparations take many forms: What the UN’s landmark vote on enslavement means for restorative justice. The Guardian. From: https://www.theguardian.com/news/2026/apr/22/reparations-take-many-different-forms-what-the-uns-landmark-vote-on-slavery-means-for-restorative-justice
• Graf, S. (2025). Law, time, and (in)justice after empire: Germany’s objection to colonial reparations and the chronopolitics of deflection. International Theory. 17(1), 1–28. From: https://doi.org/10.1017/S1752971924000113
• Marconi, R. (2024). States before their colonial past: Practice in addressing responsibility. Questions of International Law (QIL), Zoom Out. 103, 25–46. From: https://www.qil-qdi.org/wp-content/uploads/2024/02/03_Colonialism_MARCONI_FIN.pdf
• Girardini, S., Stockinger, V., & Michel, F. (2026, May 28). Beyond symbolic recognition: Readdressing Germany’s long way ahead in taking responsibility for the genocide in Namibia. Völkerrechtsblog. From: https://voelkerrechtsblog.org/beyond-symbolic-recognition/
• Afogo, N. O. (2025, July 27). International rulings and the UK–Mauritius Chagos Agreement: The road to the 2025 UK–Mauritius Agreement. Verfassungsblog. From: https://verfassungsblog.de/international-rulings-and-the-uk-mauritius-chagos-agreement/
• Tranchez, E. (2025, December 18). When decolonization meets human rights: CERD’s 2025 decision on the Chagos Agreement. EJIL: Talk!. From: https://www.ejiltalk.org/when-decolonization-meets-human-rights-cerds-2025-decision-on-the-chagos-agreement/
• Ngari, A., & Baldwin, C. (2025, August 28). Chagos Archipelago residents deserve reparations, not regrets. Human Rights Watch. From: https://www.hrw.org/news/2025/08/28/chagos-archipelago-residents-deserve-reparations-not-regrets
• Tadeg, M. A. (2025). The prospect of an international binding treaty on the right to development: A gateway to global justice. African Human Rights Law Journal. 25(2). From: https://doi.org/10.17159/1996-2096/2025/v25n2a2
• Agozino, O. (2026, April 2). Reparative justice, abolitionism, and decolonization: Africana critical perspectives on criminology. Pambazuka News. From: https://www.pambazuka.org/Reparative-Justice
• PSC Report. (2026, May 19). The UN slavery resolution is a milestone – but Africa must act. Institute for Security Studies. From: https://issafrica.org/pscreport/psc-insights/the-un-slavery-resolution-is-a-milestone-but-africa-must-act
• Foster, A. (2026, July 7). ‘Women were currency’: How reparatory justice is spotlighting gender-based violence. The Guardian. From: https://www.theguardian.com/news/2026/jul/07/cotton-capital-reparatory-justice-gender-based-violence
• African Union. (2026, June 17). African Union and CARICOM reparations mechanisms hold first joint meeting operationalizing a joint mechanism on reparative justice. African Union. From: https://au.int/en/pressreleases/20260617/african-union-and-caricom-reparations-mechanisms1-hold-first-joint-meeting
• United Nations. (2025, September 3). ‘Reparatory justice’ key to ending racism against Africans and their descendants. UN News. From: https://news.un.org/en/story/2025/09/1165771
• Chaggu, B., & Labuschagne, G. I., & Call, A., & Mohamed, A., & El Cheikh, A. F., & Mansouri, K., & Musa, M., & Nyirongo, R., & Papavero, M., & Huwait, S. (2025, July 4). Reparations for African peoples: Justice through art, policy, and peacebuilding. MEA Institute for Strategic Studies. From: https://meainstitute.org/research/reparations-for-african-peoples-justice-through-art-policy-and-peacebuilding/
• Khoday, K. (2025, July). Decolonizing development: Reparatory justice for people and planet. United Nations Development Programme. From: https://www.undp.org/sites/g/files/zskgke326/files/2025-07/undp-decolonizing-development-reparatory-justice-for-people-and-planet-jul25.pdf