UCL Uncovering Politics

Unpaid Reparations And Expropriation

Episode Summary

This week we are asking what can be done when demands for reparations for colonialism go unpaid? Would public takeovers of foreign assets be one justified way for former colonies to get what they are owed?

Episode Notes

There have been longstanding calls for reparations to address the profound injustices of colonialism and compensate for the vast extraction of resources from colonized nations. However, with few recent exceptions, these demands for reparations have largely been ignored by the former colonial powers. So, what comes next?

Over the past two decades, renewed interest in colonial reparations has emerged within political theory and philosophy, with a focus on assigning responsibility for redress. Yet, relatively little attention has been given to how redress might be achieved in the face of persistent colonial amnesia and apologia. In this episode Dr. Shuk Ying Chan, Assistant Professor in Political Theory at UCL Political Science, proposes a solution: expropriation (the unilateral public takeover of foreign assets) as a justified response to these overdue reparations.

In her argument, she shifts the focus from simply determining responsibility for reparative justice to exploring what victims of past injustices, or their descendants, are justified in doing to claim what they are owed. She also addresses the unique challenges of pursuing such political resistance at the global level.

Mentioned in this episode:

Episode Transcription

Emily McTernan: [00:00:00] Hello, this is UCL Uncovering Politics. This week we're asking, what can be done when demands for reparations for colonialism go unpaid? Are public takeovers of foreign assets one justified way for former colonies to get what they are owed? 

Hello, my name is Emily McTernan and welcome to UCL Uncovering Politics, the podcast of the School of Public Policy and Department of Political Science at University College London.

There have been long running demands for reparations for the substantial injustices and evils of colonialism, and to compensate for the substantial extraction of resources from the colonized countries by the colonizers. Yet such demands have been mostly ignored by the former colonial countries, the ones who owe the reparations. So what's next? I'm joined today by a colleague, Dr. Shuk Ying Chan, who proposes a solution for how former colonial states can get what they are owed, and that is by expropriation, the public takeover of [00:01:00] control or ownership of foreign assets.

Ying is Assistant professor in Political Theory at the department. She's an expert on anti colonial thought and global justice. Regular listeners will have heard Ying on the podcast before, of course, with wonderful episodes on resisting colonialism and on inequalities in global cultural trade. Welcome, Ying.

Thank you for coming back onto the podcast. 

Shuk Ying Chan: Thanks. It's good to be here. 

Emily McTernan: Let's start with the problem that the paper's addressing. Can you tell our listeners a bit about reparations that are being demanded for colonialism and how successful those requests have been? 

Shuk Ying Chan: Yeah, no, thanks. I mean, in short, not very successful.

I guess, you know, in the paper, I started out quoting the Durbin Declaration, which was a declaration made in 2001 and, you know, ostensibly became the UN's kind of blueprint for action to fight racism. And the declaration includes basically 19 kinds of demands for reparations, including things like technology transfer and skills and knowledge transfer and, and so on, and then, in 2014, there was the famous kind of [00:02:00] CARICOM 10 point plan, which again includes very similar demands for both kind of material compensation. And also long term kind of skills building and technology building for the for the Caribbean countries. But, you know, most of these things have just, been ignored really largely by former metropoles. So there have been kind of one off payments usually in response to litigation for from particular victims. For example, the Mau Mau who suffered atrocities at the hands of the British during the Kenyan emergency you know, they won the case and were promised one off payments, but these more large scale kind of, collective forms of reparations for post colonies have largely been ignored. And I guess, people might have seen Keir Starmer was asked whether he would commit to apologizing in the sort of reparative justice to, for slavery and colonialism, and he basically said no. So towing a similar line to former Prime Minister Rishi Sunak who was also asked the same question last year. 

Emily McTernan: So they won't [00:03:00] even apologize, let alone pay the money. 

Shuk Ying Chan: Yeah, exactly. Yeah. 

Emily McTernan: And do you think it's likely that states are going to pay up in the future? So we can see lots of reasons it might seem domestically, politically, unpopular, other kinds of crises emerge for governments that they're not that likely to do it.

Is that a fair assessment of where we're at? 

Shuk Ying Chan: Yeah, I think that there was a small opening during the in the aftermath of the murder of George Floyd when, you know, Black Lives Matter as a movement kind of, you know, spread across many of these former metropoles. You saw that, I think the, the Prime Minister of Netherlands apologized for their role in slavery and so on, but you know, I think those moments tend to lead to backlash pretty soon, and I think we are in a moment of backlash, not just against reparative justice, but also just in general kind of talk and acknowledgement of historic injustice and and so on so forth. So I think it's, yeah, fairly unlikely that, any kind of [00:04:00] meaningful reparations will be paid.

Emily McTernan: But luckily your paper proposes a radical solution or alternative of expropriation. So what's that and why might that be the answer to these unpaid and likely to continue to be unpaid reparations? 

Shuk Ying Chan: Yeah, so I guess expropriation just in a nutshell is a sort of legal term in international law.

It refers to the taking of private property usually by the state and so this could involve a transfer of ownership rights to the state or to some third party and the kinds of private property that can be expropriated, at least in contemporary international economic law don't just include things like, you know, the obvious things like factories, physical property, but it could also include things like the profits made by the business the, the intellectual property of the business and so on. And so to expropriate really just means to have a sort of a forced transfer of property ownership or control from one party to the other. In In paper I talk about how [00:05:00] expropriation is one way to partially redress some of the most long term injustices of colonialism. So what political theorists and philosophers tend to call structural injustices.

So these are, injustices that are not only kind of perpetuated between one agent directly onto, onto the other. For example, the torture of Mau Mau insurgents would be an example of and what we call an interactional injustice. Of a clearly identifiable perpetrator and a clearly identifiable victim and where structural injustice is, is much broader than that.

So we're talking about the ways in which an unjust enterprise, like colonialism installed certain kinds of political and economic and social systems that still endure today. And those systems are unjust in the sense that they create certain kinds of disadvantages for certain groups and advantages for other groups, often at the expense of the disadvantage group.

And so in the paper, I talk [00:06:00] concretely about five kinds of structural injustices. Just very quickly, the first is you know, sort of political and systems of political domination. These are the ways in which colonizers set up authoritarian ruling systems or they exploited existing divisions within the colonized society by propping up ruling elites, by propping up local leaders and so on. And this has had long lasting effects on many former colonies. Mandani's work shows this in the post colonial African context, for example, that the kinds of racial and ethnic tensions that were created by these political structures are still very salient today. And then obviously economic exploitation. So structures of economic exploitation. So I talk about how the sort of the colonizer set up ways to extract resources and forced labor, human capital and so on from the colonies and enrich the metropole and that a lot of these structures continue today in [00:07:00] the fabric of our global trading system, where developing countries still continue to supply raw commodities and cheap labor.

Whereas Global North countries tend to, you know, make more money and wealth out of being higher up in the supply chain and so on. And then there are also you know, long lasting impacts on the environment. So the kinds of economies that were left behind, especially in places like the Caribbean, where we, where you have plantation economies that really set up for an unsustainable form of political economy that continues to make them vulnerable to climate change.

And then there's also a racial ideology, which is you know, not often seen as a kind of a physical or hard structure, but like very much a kind of structure that, you know, the structure is the way that we interact with each other and so on still today where people who are racially coded white are seen as superior to people who are racially coded black, for example and then the final [00:08:00] one was structures of knowledge inequality and knowledge and cultural production.

So if you think of how colonizers appropriated indigenous knowledge and on the one hand, and also destroyed the resources and capacity for local populations to continue to produce knowledge on the other, and today looking at how, global North countries continue to be the sort of main producers of, of things like scientific and technological advances.

These are the links that exist between, past injustices and the current disadvantages and advantages that we see. And these are the kinds of structural injustices that I'm thinking about when I'm talking about the potential of expropriation of, again, sort of taking over various kinds of foreign assets as a way to address some of these structures.

That was very long. 

Emily McTernan: These structures seem so overwhelming and have so many facets. Is there a worry that neither reparations nor expropriation are really going to be [00:09:00] able to handle this? So what you're presenting expropriation is the answer to the resistance. It's perhaps understandable from pragmatic terms from the former colonies to pay colonizers to pay for all of this.

But then you're proposing expropriation, the kind of seizure of some of these assets. Can either of those things really answer these structural injustices? 

Shuk Ying Chan: Yeah, I think you're definitely right to say that these are extremely broad and deep injustices. So in the paper, I talk about how one of the criteria for, what I broadly call unilateral reparative action. So these are political actions that are undertaken for the purpose of two, two aims. One is to partially redress or alleviate some of the harms of these long term structural injustices, and the other is to push what I call principal responsibility holders to act, to engage in an actual full blown comprehensive program of reparations.

So certainly these actions are not going to by themselves you know, [00:10:00] undo all these things. Ultimately, what we do need is a moral reckoning on the part of the former colonizers, and for them to engage in a comprehensive form of reparations. But I do think that the, it does, expropriation does have potential to at least deliver some concrete benefits in the here and now, which are really urgently needed across many post colonial contexts.

For example, I talk about how in taking over things like economic infrastructure and so on, like a factory. I talk about how Nkrumah the first prime minister of Ghana wrote about how there was no chocolate factory in the whole of Ghana, despite it being a leading cocoa producer.

So there's this case of the Ghanaian government partnering up with a German company. It has links with the colonial trade in its past to modernize its cocoa processing factories. And ultimately the partnership fell apart and, and there was some, disputes about payments and how much the company was actually fulfilling its obligations and so on.

So there, [00:11:00] I argue that if the Ghanaian government had just simply took over the factory after it was modernized, it would be a fitting form of reparations for the fact that Ghana was for such a long time you know, prevented from developing this this capital, basically, and having their productive potential basically siphoned off to the metropole.

And so you're right that it's not going to be you know, it's not, it's not, it's nowhere going to be as effective as a program where the responsible party are voluntarily engaging in reparations. But I think that there are, there, there are still, real benefits and there are real world cases in which this has happened.

And I talk a bit about Bolivia nationalizing the oil and gas industry as a way, partly as a way to address the legacies of, of colonialism as well. 

Emily McTernan: And I guess another challenge that might come into some people's minds, of course, a lot of this reparative expropriation is going to be illegal under the terms of international law.

Shuk Ying Chan: Yeah. 

Emily McTernan: And you deal with that in the paper. So [00:12:00] can you tell us exactly how it falls foul of international law and why it is we shouldn't worry too much about the fact that expropriation has been rendered illegal by the legal system? 

Shuk Ying Chan: Yeah, thanks. The international economic law that prohibits expropriation except for exceptional circumstances today is actually quite a recent phenomena.

So in the paper, I talk about how in the Second World War, for example, the U. S. basically expropriated German and Japanese assets as a form of compensation for the war, but following sort of waves of decolonization when post colonial states and, non state actors like workers and so on in Indonesia started seizing the assets of the colonizers, there was a move in the global north amongst jurists to develop you know, sort of stricter principles for prohibiting expropriation.

And today expropriation basically can only be done for very narrow public purposes. And so public purpose sounds broad, [00:13:00] but it's usually really defined extremely narrowly. So famously during the financial crisis in Argentina in the early 2000s, when basically you know, the citizens were not able to even have access to things like water and so on at a reasonable price, because the peso was falling really fast and so on.

The Argentinian government enacted a series of measures to, for example, to try to freeze utility bills and so on, and they were immediately sued under international law saying that this was expropriation of profits. And, even in very narrow circumstances, for example, during COVID, there was a lot of worry that governments that needed to basically engage in sort of compulsory licensing to produce the vaccine would be sued as well. So yeah so basically the law makes anything beyond these very narrow circumstances illegal when it comes to expropriation. And you also have to apply expropriation on a non-discriminatory basis. So what that means is [00:14:00] that, you know, you can't just target foreign companies. You have to also show that, you're even handed with domestic companies as well. You have to compensate the, the owners and this compensation is often decided by, like, an international tribunal, it's not decided by domestic courts. Anyway, so all of that means, you know, as you said, expropriation for this very ambitious kind of reparative justice purposes would definitely be illegal.

But I also argue in the paper that, a lot of the standard arguments against breaking the law when it comes to things like civil disobedience and protests don't really apply as much in the international context. Some of those standard arguments are things like well, if you're breaking the law to advance your cause, even if it's a just cause you're undermining the democratic process.

You should really be going through that process instead. Or, you know, you're undermining the reciprocity that exists between citizens who are law abiding and and so on. And so I think none of that really applies perfectly, or even very much at [00:15:00] the international level. I mean, there's obviously no world state, there's no democratic process for making these laws in the first place.

A lot of these laws were made you know, in a certain part of the world and applied across, across the world. And you know, we see how powerful countries, dominant countries just break the international law all the time without any consequences. I don't mean to say that anything goes, the international law is just something to be discarded.

In fact, in the paper, I do say that, the same reason that international, that makes international law you know, in certain situations, it makes it, it makes it makes the obligation to obey it weaker also means that, you know, it's very fragile system. And to the extent that we still think that there is something important about having some kind of norms that regulate state behavior and so on countries that break international law, even for a just cause have to be very restrained.

And I, I, you know, talk a bit, I mean, I refer briefly to Robert Gooden's paper about the possibility of treating international law breaking as a form of [00:16:00] lawmaking, as a form of legal entrepreneurship, where you're not just breaking the law, but you're trying to create a new set of norms. and you bind yourself to this new set of norms so that it's not, you're not trading anarchy, you know, the existing system for anarchy.

But yeah, so in general I think that, you know, when it comes to reparative expropriation, I'm not too worried about breaking international economic law. 

Emily McTernan: Great. I wonder if we could move to, or circle back really to the extent to which, the demands for reparations are satisfied by expropriation, and in particular, the worry that expropriation lacks the apology and a possibility of repair that's promised by reparations that were paid willingly.

And I guess will there be further rupture and deterioration of relationships in the wake of expropriations? And so they kind of move us further from the world that we need, a world where the former colonizers make these [00:17:00] apologies, make these active restitutions, contribute towards underlining the structural injustices that they have responsibility for, and towards sort of world of further tensions and further from a world that will make these kinds of repairs and reparations by virtue of the fact that there'll be the breaking of these international laws, perhaps justifiably, but this will not contribute towards a system where there is this repair.

Shuk Ying Chan: Yeah, no, I think that's, that's a great question. I think we should separate reconciliation with reparative justice. I think some scholars think, you know, kind of run them together, but I think, you know, there are also, so Catherine Liu, for example, has a book where she talks about how these two things are related, but they're distinct.

So you have to fulfil certain conditions of justice before you can expect to reconcile with you know, the people that you formerly oppressed or have responsibility in contributing to their oppressed situation. And so I, I, I, you know, I'm kind of that mindset as well. And I think that, you know, [00:18:00] the powerful are not going to change because they hear some kind of moral, calling.

I think it's very rarely the case. I mean, I'm not saying that you know, no citizens in these former metropoles are going to, you know, be convinced simply by reasons and learning about the history and so on. Right? Some clearly will be and will contribute to pushing the governments to act.

But I think you know, for the most part, I think the The actors that really have access to levers of power, they're, they're not going to change simply because we have the best arguments about why they're morally responsible. And the more that they don't change, I think the, the less we can hope for any kind of future reconciliation anyway.

And I think it's perfectly, reasonable for you know, people in post-colonial countries to feel that they still remain disrespected and that, the injustices they've had to endure in the past and they still continue enduring are not acknowledged and so on. And so that's bad for relations as well.

So in order to make a move [00:19:00] on this on this , situation, I think the powerful have to be given certain material reasons to act. And as I said, the second goal of unilateral reparative action was to push these actors to act.

And in the long term, I think it is in their interest to, to act. And you know, only when that happens, then, then or some movement towards reparative justice is, is, is seen, then I think it becomes more possible to talk about reconciliation. And just to give a shout out to some some of the fantastic work that the political theorists in the U. S. have been doing in the American context. So Desmond Jatmohan, for example has a paper where he recovers arguments for slavery reparations. In the U. S. context that really have nothing to do with wanting to heal American society or heal racial relations have much more to do with, we want to build power so that we don't continue to suffer in the long run. And maybe only when we have, you know, more egalitarian terms of, negotiation [00:20:00] and interaction, then we can talk about, having better relations. And yeah, I guess I'm skeptical of running these two things together.

Emily McTernan: It's a really powerful and helpful distinction you're making there. I take it between the, the urgent need for the kind of resources and for some compensation separate from these kinds of apologies that are asked for in repair, which might have to be a second step rather than the first step. That's a really helpful way of, of seeing the paper.

Thank you for that. I wonder if we can move to some of the practicalities. I guess some of the practicalities are you've got some interesting views about the way in which this stuff might take place. So one intriguing moment in your paper is you suggest that it's not going to be as directed as some people might think it is.

So some people might think, okay, you're a former colony. Lots of your former colonizers companies are still operating in your country. They still have ownership of the oil and gas industries or the factories or all sorts of other things. And so you might think it's still a colony. It's clearly justified to seize control as the government [00:21:00] of that former colony of these things that have been extracting your resources all along.

But your position is that we can go even broader than that. So even if it's some other colonizing country that never colonized your country, colonized another country, their companies are still up for grabs. Is that correct? So what motivates the drive beyond what might seem the really direct expropriation towards these forms of expropriation where we have more targets than you might imagine?

Shuk Ying Chan: Huh. Yeah. So I guess there's a both a realist and a moral justification for this. You know, the realist reason is really just to say that it is a way to deal with capital flight, the threat of capital flight. So if you imagine countries that have engaged in you know, this, what I broadly call the European colonial project.

So not only in colonizing specific colonies, but also in, developing the kind of international law that enabled colonization you know, most obviously we can think of the scramble for Africa. This is the conference in Berlin where European countries [00:22:00] literally came together and looked at the map of Africa and decide how to divide it up.

So then we, we can think of them as all contributing to this to this project of colonization. And one reason why it's important to argue that it should be okay for, for example in the paper I mentioned, you know, Kenyan citizens and the government could justifiably expropriate not just assets of the British who directly colonized them, but also the Germans is because this makes it much harder for companies to engage in capital flight where they withdraw from one part of the post-colonial world to the other, because insofar as their governments or states have engaged in this broad project of colonization, they would be liable or open to having their assets expropriated but it's not just a realist reason, right?

So the moral justification is to say, you know, we can't just understand colonialism as a sort of one to one kind of relation. [00:23:00] It is because there was a European consensus and that is what enabled the colonization projects to take off. Because prior to that consensus, there were actually a lot of wars amongst European countries, right, to fight over colonies and so on.

And, you know, that sort of, to an extent, hindered this pace of colonization. And so I talk about how know, this is one way in which post-colonial actors are justified in acting together, basically to seize the assets of all those who in some way contributed to making this episode of historic injustice possible.

Emily McTernan: I guess that leads to two questions. So one would be, what about corporations that have become so international that it's not so clear kind of what their home is? So they're not the German company, they are a genuinely international company. Are they still, if they're operating in these former colonies, are their assets up for grabs?

Shuk Ying Chan: Yeah, I think that's a tricky case. And I think [00:24:00] that, you know, for, for the argument, we, I have this sort of distinguish between different kinds of responsibility holders. So there's the principle of responsibility holders who are the ones that you know, directly played a role in colonization. 

Emily McTernan: So are you thinking of states?

Shuk Ying Chan: States but also certain companies like I mentioned briefly like Barclays, helped us sponsor the expeditions or not sponsor, ensure that expeditions and so on, which that still exists today. But then for a secondary responsibility holders, these are agents that are either contributing to upholding the unjust structures that I've talked about you know, that still endure today.

Or they're simply benefiting from these unjust structures. And so in that sense, they don't really have any direct role within the initial injustice themselves. But because they are gaining advantages from, from the continuation of these structures then they also have a responsibility and that responsibility can then translate into a liability [00:25:00] to being expropriated.

If it is the case that for the post-colonial actors to target the, the sort of agents that are higher up the responsibility chain is far too dangerous or far too costly. So there's several, I guess, considerations here, right? So how costly would it be for post-colonial actors to target the principal responsibility holders?

And if it's unreasonably demanding, then they can sort of go down the chain of responsibility. And then, on the other hand, I also talk about how there are limits to what anyone can do to one agent, because no one agent should or can bear the whole burden of reparative justice. And you know, there needs to be coordination and, and sort of consideration of, how much burden it is reasonable to impose on, on these agents.

And so going back to the international company example, so if it's the case that they benefit [00:26:00] from you know, the structures that are inherited from the colonial era, then yes, they would also be open to expropriation. But they would be sort of almost like a last resort target only to be approached or targeted if the other targets were just you know, would just retaliate in a way that imposed costs that are unreasonable.

Emily McTernan: And the second question I had is about capital flights. You've actually offered us some thoughts. So I guess a lot of people might be thinking, well, if countries start seizing assets, we know what's going to happen. Everyone will take, you know, withdrawal of their resources from that country. And that country will be left in a worse state.

And I guess your suggestion is because it's such a broad list of targets now. We won't see such a flight. Yes, because there's so many advantages to operating in these countries that someone's going to continue to be willing to do it. Is that is that the thought you're having about capital flight?

Shuk Ying Chan: Yeah, I mean, it's a hypothesis. I mean, I obviously don't claim to be able to predict, but there is also work on how [00:27:00] companies and investors generally respond when expropriation happens and the empirical literature that I cite in the paper seems to find that, it's not always a straightforward case of, oh, somebody's getting expropriated.

Everybody immediately withdraws and leaves. There are many considerations that companies have, and so there's room to, I think you know, do do a bit more than what we might intuitively think. But yes, also because the interest in continuing to do business in these parts of the world is so strong.

I think that the hope is that the companies themselves will start pressurizing their home governments to, you know, take their reparative justice action. responsibilities seriously so this basically, you know, doesn't continue becoming their burden.

Emily McTernan: Thank you Ying for coming on and for that. Fascinating defense of expropriation where reparations go unpaid. We've been discussing Shuk King Chan's recent paper, expropriation as reparation published in the American Journal of Political Science. As [00:28:00] ever you can find more details about the article and the other readings referenced in the show notes.

Next week, we'll be talking about policing in the UK with Emmeline Taylor, Jonathan Jackson, and Ben Bradford as our second episode in collaboration with Political Quarterly. So don't forget to subscribe to UCL Uncovering Politics on Apple Podcasts, or wherever you listen to stay up to date on our latest episodes.

And if you enjoyed today's conversation, please take a moment to rate or review us. It really helps new listeners discover the show. I'm Emily McTernan, and this episode was researched by Kaiser Kang and produced by Eleanor Kingwell Banham. Our theme music is by John Mann. Thank you for listening to UCL Uncovering Politics.

See you next time.