Over the last few months, the debate on how Belgium should deal with its colonial past has intensified and led to concrete actions, such as the expression of regrets by the Belgian King and the establishment of a parliamentary “Congo Commission”. This has raised questions on whether reparations for Belgian colonialism, such as monetary compensation, are appropriate. Is Belgium legally obliged under international law to make reparations for its colonial past? In this blogpost, Kato Van der Speeten discusses the possible State responsibility for Belgian colonial rule and uncovers the main hurdles to reparations.
Belgium’s colonial past is marked by brutality, violence and consistent discrimination. Both under the rule of King Leopold II and later as a Belgian colony, the Congolese population was exploited and suppressed. Racism was common ground in the former Rwandese and Burundian colonies as well. Recently, the question of how Belgium should come to terms with its colonial past has become prominently present in the public debate. The discussion was sparked in 2019 by the findings of the UN Working Group of Experts on People of African Descent, recommending Belgium to face its colonial history by issuing official apologies and establishing a truth commission. Although these findings sparked a public discussion, no significant (legal or political) initiatives were immediately taken to follow these suggestions. However, the rise of the Black Lives Matter movement in 2020 reignited the debate, eventually leading to the establishment of a parliamentary truth and reconciliation commission. Furthermore, at the 60th anniversary of the Congolese independence, the Belgian King expressed his “deepest regrets” (not apologies) for the violence, brutality and suffering caused by Belgium during the colonial period. These developments seem to provide support for the view that Belgium bears a certain responsibility with regard to its colonial past and that some forms of reparations, in the broad sense, are not out of place. That begs the question whether this amounts to an enforceable legal responsibility to provide reparations.
Non-retroactivity: the main hurdle for establishing State responsibility
The international law of State responsibility provides a solid framework for a legal discussion on reparations for colonialism. An important condition for the establishment of such State responsibility is the violation of international law (see article 2 of the Draft Articles on State Responsibility). Although it is generally recognized that grave human rights violations occurred in the Belgian colonies, it should be kept in mind that the recognition and legal acknowledgement of human rights generally took place only after the independence of the Belgian colonies. Therefore, the principles of intertemporal law and non-retroactivity, prohibiting the application of legal rules to events before the existence or consolidation of these rules, constitute the main hurdle for the establishment of Belgian State responsibility for colonialism. Different possible exceptions to the principle of intertemporal law, such as the special status of human rights and jus cogens, natural law arguments and analogies with exceptions in national law and international criminal law, at first sight seem to provide an outcome. However, a closer examination of these possible exceptions done in my master’s dissertation has led me to the conclusion that there does not seem to exist an exception with sufficient support in current international law. The obstacle of non-retroactivity seems difficult to overcome.
Violation of international law in force during the colonial period?
Another possible strategy to establish Belgian State responsibility for colonialism is the application of international law in force during the colonial period. In this regard, the practice of forced labour in the Belgian colony of the Congo provides an interesting case study. Although the International Labour Organization took various initiatives to combat forced labour in colonies, like the adoption of the Forced Labour Convention of 1930, the prohibition of forced labour could easily be circumvented by the use of reservations to ILO instruments. Moreover, the forced labour in “Congo Belge” did also not constitute a violation of the European Convention of Human Rights. The ECHR only has limited territorial application (see Article 56 ECHR) and Belgium decided not to extend the application of this human rights treaty to the Belgian colonies. This example indicates that a breach of the international law in force during the colonial period seems difficult to establish.
TWAIL: a critical approach to international law
The inability of international law to provide a legal basis for reparations for colonialism can be criticized from a TWAIL (Third World Approaches to International Law) perspective. Western States were the main actors in the development of international law and mainly used it to serve their own interests. Therefore, international law today generally does not allow for legal redress for historical injustices like colonialism and slavery. Indeed, these Western States were the main perpetrators of such wrongdoing. Furthermore, the current international legal system, which is still inherently Western, prevents the emergence of a possible exception to the principle of intertemporal law. The fact that international law does not permit reparations for colonialism is the result of the continued one-sided development of international law, manifestly excluding former colonies and other third world countries. When considering redress for injustices committed under and by colonial rule, international law seems to seriously run up against its limits.
Kato Van der Speeten is completing her Master in Law at KU Leuven and she is currently studying as a double degree student at Waseda University in Tokyo, Japan. Her Master dissertation explores the possible State responsibility to make reparation for the Belgian colonial past, together with an assessment of different forms of reparation.
A more extensive article in which Kato discusses reparations for colonialism from a legal perspective can be found in the special issue on Decolonisation and Human Rights of Tijdschrift voor Mensenrechten.
K. VAN DER SPEETEN, "Reparations for Belgian colonialism: does Belgium bear a legal responsibility to make up for its colonial rule?", Leuven Blog for Public Law, 6 November 2020, https://www.leuvenpubliclaw.com/reparations-for-belgian-colonialism-does-belgium-bear-a-legal-responsibility-to-make-up-for-its-colonial-rule (geraadpleegd op 1 March 2021)
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