American Journal of International Law最新文献

The campaign for reparations for colonial violence, slavery, and exploitation is now becoming a global phenomenon, as claims are being pursued in different jurisdictions and international forums.1 Each of these claims has its own specific legal character because of various factors including the forum in which it is brought, the applicable law, and the identity of the plaintiffs. Nevertheless, many reparations claims are based on appeals to international law, to developments in international human rights law and international criminal law, and specific prohibitions on slavery and genocide. It would appear intuitive that international law would provide remedies to the blatant injustices that are the subject of these claims. Slavery and exploitation have been denounced in the Durban Declaration2 and genocide and crimes against humanity including apartheid and other such practices are listed in the statute of the International Criminal Court.3 International law, however, has been largely a creation of the European powers; and historically, the law has facilitated rather than remedied colonial violence.4 It is unsurprising then that many claims for reparations encounter some basic legal obstacles.5 This is hardly coincidental. A legal system that is based on conquest will not readily permit an inquiry into its imperial origins, far less remedies for the injustices it permitted, indeed, mandated.

The relationship between international law on reparations and jus cogens is an uneasy one. The law on reparations is a settled part of classical international law, with roots so deep that its place in international law is taken for granted.1 The oft-quoted dictum in the 1928 Chorzów Factory case which sets out the requirement for reparation to “as far as possible, wipe out all the consequences of [an] illegal act and re-establish the situation” which would have existed but for the unlawful act was said, at the time, to be based on “international practice and … decisions of arbitral tribunals.”2 The same is not true of jus cogens, a relatively new entrant to the mainstream of international law, whose pedigree in the system is less assured, and whose application, as opposed to mere references, by international courts is almost non-existent.3 Yet, at the same time, at the heart of both reparations and jus cogens, is the notion of justice. The idea of undoing the effects of a wrongful act is intrinsically about (re)balancing the scales, while the notion of jus cogens seeks to infuse the system of international law with community values and a spirit of justice.

This special issue of the American Journal of International Law—devoted entirely to reparations in international law—offers a range of perspectives on reparations for large-scale harms relating to colonialism, slavery, industrialization, and transboundary pollution. As the symposium authors describe, the gap between the reparations that justice might demand and the ones that international law provides is enormous. The international law for reparations does not come close to remedying such harms and is not poised to do so anytime soon.

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….

Reparations for colonialism and colonial-era atrocities have moved from an unrealized demand of citizens, politicians, and thinkers in the Global South to a project with some results in the real world. Key markers include the return of numerous art objects from museums in the Global North to their countries of origin;1 the release of the Caribbean Community and Common Market’s (CARICOM) proposal for reparations;2 and Namibia’s agreement with Germany on compensation for the German genocide against the Herero people in 1904–083—along with the resultant controversy. These developments follow earlier claims for reparations directed to—and their eventual acceptance by—the governments of Canada and New Zealand, domestic courts in the Netherlands and the UK, and the Inter-American Court of Human Rights.4 At the same time, it remains the case that reparations for colonialism are overall few and far between.

As Editors-in-Chief of the American Journal of International Law, we endeavor to promote the study and practice of international law through broad, open, critical, and vigorous debate, both on and off the pages of the Journal. The success of our enterprise depends on freedom of inquiry—the ability to research, investigate, evaluate, theorize, challenge, collaborate, write, lecture, and publish without influence, coercion, or apprehension. The Journal can fulfill this mission only if the teaching, study, and practice of international law in the United States (and beyond) proceed without political conditions or fear of retribution. Recent actions by the U.S. government and broader trends in the United States demonstrate a lack of commitment to law and institutions in ways that undermine our work. In particular, the government’s threats to universities and research journals undercut the study and teaching of international law, its threats to law firms and non-profit organizations impinge on the practice of international law, and its targeting of people with varying immigration statuses on the basis of their lawful exercise of free speech silences important voices in our community.

A fundamental and widely recognized inequity at the core of the existential climate crisis facing the planet today is that those who have contributed the least to climate change are also the most affected. The United States, European Union-28, Russia, Japan, and Canada, according to some accounts, are together responsible for 85 percent of global greenhouse gases (GHG) emissions thus far.1 Yet it is the climate vulnerable—least developed countries, low lying, and small island states among others—that are at the frontlines of climate impacts. There is widespread scientific and diplomatic consensus on the multiple causes and devastating impacts of climate change but so far justice for vulnerable states has proven elusive.

The debate over whether, when, and by whom reparations should be paid for climate-related loss and damage has been central to the struggle over the role of international law in responding to climate change. The push for climate reparations is an attempt to have international law treat the harm caused by climate change with the same gravity as issues such as the damage caused by war, gross violations of human rights, or injury to the economic interests of foreign investors. At stake in that struggle is a broader question that goes to the heart of the global political economy: who should bear the social costs of industrialization and technological development on a global scale?

The rise of great power competition is transforming international economic law as trade and investment patterns fragment along geopolitical lines and longstanding legal regimes come under stress. This Article argues that this “return of geopolitics” generates fundamental and pervasive challenges for the international financial governance regime. As states weaponize financial infrastructure, adopt security-based restrictions on capital flows, and attempt to direct funds away from their adversaries toward allies and strategic industries, their actions strain the regime's foundational norms, principles, and procedures. The trend threatens to undermine cooperation to protect global financial stability and address other common policy concerns raised by financial globalization.

The international order that the United States has for decades led and maintained is undergoing dramatic change. In this Essay, we explain that international law during this period was constituted with, and dependent on, U.S. power; that the two became (in odd-couple fashion) entwined together; and that, as the international order changes, the international legal system, its content and its architecture, will also inevitably change.