Phoebe Okowa, UCHV Fellow in Law and Normative Thinking, Professor of Public International Law, Queen Mary, University of London, Member, UN International Law Commission, will speak about “Accountability for Colonial Wrongs in International Law: Mapping the Legal Terrain.”

The research paper broadly seeks to examine the legal framework of accountability for colonial wrongs. Academic discourse in this field has been far from straightforward and much of it has been premised on the presumption of non-liability. The starting point for international lawyers has always been the arbitral decision in the Island of Palmas case which established as positive law the principle of inter-temporal law; “meaning that an acts legality is judged by the law in force at the time it occurred and not by later changes in the law”. The principle of non-retroactivity also finds expression in positive law in Article 28 of the Vienna Convention of the Law of treaties. Taken to its logical conclusion, intertemporal law excludes any liability for egregious conduct that occurred before the modern evolution of human rights norms. It also precludes any inquiry into questions of responsibility for historic greenhouse emissions, on the argument that many of these emissions occurred before the increased public sensitivity to environmental values and the modern science on climate change. 

The first part of the talk is explanatory. My intention is to demonstrate that the extreme non-retroactivity insisted upon by some international lawyers as a logical consequence of the application of the principle of intertemporal law finds no support in the practice of states or on close reading, the jurisprudence of the international courts.  I also argue that because colonised peoples had no agency in the making of  positive international law, it is doubtful whether atrocities committed during the colonial encounter should be analysed through the prism of the Westphalian consensus as to the content of the applicable rules of  public international law. I argue that the proper law of these wrongs was arguably the lex loci commissi, the internal law of colonised peoples – and it is this law that ought to determine whether liability is expunged or of continuing relevance today. My intention here is to deliberately shift the discourse from public to private international law.  There is considerable evidence in private international law scholarship that supports the proposition that the principle of non-retroactivity may in some instances give way to considerations of substantive justice or overriding considerations of public policy. It is therefore the precolonial law that provides a starting point for any enquiry as augmented by contemporary understandings in the human rights and environmental law fields. 

In the second part of the talk, I examine how these presumed barriers to accountability for colonial wrongs manifest in the specific context of responsibility for greenhouse gas emissions. The arguments of the parties in the recent cases before international tribunals concerning the obligations of States in the field of climate change, demonstrate remarkable convergence in the parties arguments that inter-temporality  as such is not a barrier to accountability. Moreover, a systemic interpretation of the climate treaty regimes explicitly acknowledge responsibility for historic greenhouse gas emissions as a foundational ideal. That ultimately considerations of justice trump any procedural impediments. However, there remains considerable difficulties of how to actualise the principle of responsibility for historic emissions and none of the solutions considered so far are without problems. 

To attend virtually, contact Kim Murray.

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