Interview with Dr Sebastian M. Spitra (University of Vienna)
Dr Sebastian M. Spitra is a postdoctoral researcher at the Institute for Legal and Constitutional History at the University of Vienna and a member of the Young Academy of Sciences and Literature | Mainz. He has been consulted as an expert by the Austrian Federal Chancellery and ICOM Austria as part of the project “The Museum in a Colonial Context” and by the German parliamentary party Bündnis 90/Die Grünen. The book
Kolonialismus und Recht. Eine Globalgeschichte (Colonialism and Law. A Global History) was written during his tenure as research professor at the Käte Hamburger Kolleg “Legal Unity and Pluralism” at the University of Münster.
European and indigenous legal systems
Question Thomas Fues (TF): In Germany, public discussions about colonialism often revolve around the restitution of cultural artefacts, the renaming of streets, the erection of monuments, or the question of reparations. What contribution to the current debate do you hope to make with your book “Colonialism and Law. A Global History”, and why do you believe the law plays an important role when discussing colonialism?
Answer Sebastian M Spitra (SMS): As you say, legal debates on colonialism today are mostly about practical matters: Are there claims to restitution or reparations? Who can assert them— states, individuals, or specific Indigenous communities? And how should societies go about addressing the past? These are all important questions, and I explore them in my book. My central aim, however, was to bring a new perspective to the discussion. When we talk about law and colonialism, the focus is usually on the international legal frameworks that enabled European expansion, the legal justifications for it, or colonial administrative law. What is often overlooked is that law was not solely a European resource: colonised societies also had their own legal systems, which were later overlaid or replaced by the laws of largely European empires. Their legal character was frequently denied altogether, and instead they were described in terms of religion, cultural values, or even ‘fetishism’. Taking this indigenous perspective on law into account is at least as important as the imperial one when addressing law and colonialism.
Correcting epistemic injustice
Question TF: What do you hope to achieve with such a shift in perspective?
Answer SMS: Two points are important. First, this is about correcting an epistemic injustice. Colonialism operates in part by devaluing other cultures and imposing its own concepts as authoritative, including by denying the legal status of these normative orders.
Second, there are also tangible legal consequences. International law is guided by the principle of intertemporality, under which the legality of an act or situation is assessed according to the law in force at the time. In colonial contexts, this can result in colonial legal systems, despite their injustices, being applied as the benchmark even today. However, this is fundamentally called into question if one regards the European international legal order merely as one legal system among others.
Question TF: Are there any other reasons to view the history of colonialism through the lens of law?
Answer SMS: Absolutely! Legal systems inevitably reflect particular worldviews. Law does not merely describe reality; it divides it into legal categories. At the same time, it always contains an element of power. To study legal structures, past or present, is therefore also to examine underlying ideas of society, order, and worldview.
Law as a system of rule
Question TF: And what does this history reveal?
Answer SMS: The way in which the rule over other territories and communities was organised always depended heavily on the technical possibilities of the time, as well as on the scientific and political ideas of the era. The spectrum is quite broad: it ranges from more pre-modern forms, in which territories were integrated into a monarchical-dynastic system, to significantly more modern forms in the 20th century, where access to resources in new independent states was secured through international legal instruments in the wake of decolonisation.
And the justifications for such forms of rule have also changed over time. They reflect the underlying ways of thinking and paradigms that were dominant in a particular era, be it religious notions of mission or those of biological superiority. The law usually incorporated the prevailing ideas and thereby legitimised them.
International legal instruments
Question TF: Returning to the present: In your opinion, which instruments of international law are particularly relevant to address colonial injustices today?
Answer SMS: That is both a good and a difficult question. As already mentioned, the principle of intertemporality sets clear limits on the search for legal grounds for asserting claims within the international legal order. Consequently, a human rights-based approach to colonial injustice is frequently called for. There are also several human rights documents at the international level that play an important role in this regard. The Office of the UN High Commissioner for Human Rights, for instance, has a dedicated Special Rapporteur who, amongst other things, deals with reparatory justice and has already formulated specific standards in this regard. Similarly, there is a 2005 UN General Assembly resolution dealing with reparations for victims of gross violations of international human rights law.
Beyond this, however, there are also a number of other ways to construct legal claims, for instance through principles of state responsibility under international law or the rights of indigenous peoples, though similar problems arise here too.
UN Declaration on enslavement trade
Question TF: A few weeks ago, the UN General Assembly adopted a declaration classifying the trade in enslaved Africans and their racially motivated enslavement as the gravest crime against humanity. How do you view such a hierarchisation of crimes, and does this political perspective align with a legal perspective?
Answer SMS: I find such hierarchies of injustice very difficult. However, the declaration does contain an interesting justification, which is worth reading: It cites as the reason for this assessment that the enslavement of and trade in African people represent a “definitive rupture in world history”, the “scale, duration, systemic nature, brutality and lasting consequences of which continue to shape the lives of all people through racially determined labour, property and capital relations”. In doing so, the declaration draws on structural changes in our systems of knowledge and law to characterise it as a crime of the greatest magnitude.
The enslavement of Africans and the slave trade were, of course, not the sole drivers of these developments in intellectual and legal history. In my view, however, the deepest and most consequential dynamic of modernity is precisely bound up with them. This is, of course, closely connected to colonial structures. At the same time, slavery and the slave trade are often not treated as a core component of colonialism, but rather as specific labour regimes within it, sometimes compared to forms of coerced labour that also existed in Europe at different points in the modern era, such as manorialism or serfdom.
Two further points stand out. First, the declaration adopts a broad historical perspective; roughly a third of the seven-page text is devoted to historical and legal-historical sources. Second, it cites pre-colonial African legal orders not only to ground prohibitions on slavery and the slave trade in modern Western standards, but also to draw on an indigenous African normative framework.
Legal action
Question TF: And what are the prospects of success for legal action at national and international level in this regard? And which legal authorities would need to be addressed for this?
Answer SMS: The problem with the aforementioned legal frameworks for addressing colonial injustices is that they constitute ‘soft law’ – in other words, they do not impose a legal duty on states that could be effectively enforced. A more creative use of international law could involve turning to the International Court of Justice or other tribunals for an advisory opinion procedure on unresolved legal questions such as in the case of the Chagos Islands. However, such procedures are lengthy, resource-intensive and have an uncertain outcome. They can also disrupt diplomatic relations between states, which helps explain why they are rarely pursued.
Still, it shows that there are international standards that can guide debates at home. It is ultimately up to individual states to act through their governments and parliaments. This also has its advantages, since colonial histories differ from case to case and responses can be tailored accordingly.
Question TF: Finally: How did you come to engage with colonialism and law?
Answer SMS: When I began my doctoral studies, I originally planned to write a dissertation on international legal frameworks for archaeological excavations in the 19th and 20th centuries. But once I began studying the archives, I quickly saw that understanding these processes required looking beyond legal questions to include the equally important dimensions of power politics, colonialism and imperialism. This eventually turned into a book, Die Verwaltung von Kultur im Völkerrecht. Eine postkoloniale Geschichte (The Governance of Culture in International Law: A Postcolonial History), which deals broadly with the development of international cultural heritage law from a postcolonial perspective. Since then, the topic of colonialism and law has remained a constant focus for me. In spring 2023, I gave a public lecture series at the Weltmuseum Vienna on colonialism and law, which formed the basis for my new book, due to be published in a few days’ time.