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Reparations and the Crime of Unjust Enrichment

This profound book by leading socio-legal scholar Joshua Castellino offers a fresh perspective on the lingering legacies of colonization.

While decolonization liberated territories, it left the root causes of historical injustice unaddressed. Governance change did not address past wrongs and transferred injustice through political and financial architectures.

Castellino presents a five-point plan aimed at system redress through reparations that addresses the colonially induced climate crisis through equitable and sustainable means.

In highlighting the structural legacy of colonial crimes, Castellino provides insights into the complexities of contemporary societies, showing how legal frameworks could foster a fairer, more just world.

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Colonial history is so diverse and its devastation so widespread that it is often deemed too complex to discuss as a single phenomenon. This chapter, based on historical and contemporary readings of challenges in a range of societies that came under colonial influence, traces patterns across this vast edifice in a bid to offer a typology of the phenomenon. It identifies seven broad categories, including crimes committed in the process of territorial acquisition and during colonial rule, and others that contribute to the maintenance of colonial hegemonies post decolonization.

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The thirst for system change is growing in the face of the climate crisis. Yet the prospect for translating rhetoric into action will remain remote if power brokers that benefit from the international financial architecture remain unchanged. Incontrovertible evidence shows that the climate crisis emanates from extractivist anthropocentric systems erected under colonial rule that have become entrenched. These were built by European powers based on their perceived racial superiority over others, ostensibly promoting Commerce, Christianity and ‘Civilization’. The colonial project was presented to their public and to rival colonizers as part of Europeans’ inalienable right to free trade, adventurism and proselytization. Decolonization ended direct European rule on other continents without accountability. The systems endured – promoted by colonists and accepted by incoming States faced with the desperate need to rebuild. These systems drive the climate and other modern crises.

This book identifies a typology of colonial crimes that lie at the heart of contemporary injustice through examples from across the globe. The categorization intends to stimulate discussions around tailored remedies to combat the continued impact of these crimes in undermining peace, security, development and sustainability. The work addresses extractivist economic activities that sustain the climate crisis, emphasizing their link with colonization, but articulates solutions for system change. These include explicit codification of the crime of ‘unjust enrichment’ to unlock climate financing, in conjunction with a governance approach based on 16 sub-regions to defeat colonial-era enhanced fragmentary politics that detract from addressing the urgency of the current challenge.

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With the need to mitigate climate change highest on the agenda for structural change, this chapter underscores how colonial-era systems underpin the present crisis. It traces the erection of the extractive exploitative economy that was built on the territories of Indigenous peoples. This replaced sustainable circular economies with consumption-oriented profit-motivated drives that are still venerated as progress despite scientifically backed evidence of the damage they cause to biodiversity, communities and the planet. The chapter identifies Indigenous peoples’ leadership as key for critical climate adaptation and mitigation, but also for the medium-term goal of achieving sustainability.

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The momentum that swept colonial governments away in the last century shepherded the emergence of a swathe of independent States. This decolonization process is celebrated as a stunning success. Yet the crimes committed under colonial rule remain unaccounted for. Decolonization was more akin to a privatization of former colonies, where ‘ownership’ passed to select elites that maintained hegemony rather than to subjugated masses who aspired to peaceful, independent and free societies. This chapter identifies ten specific hurdles to be overcome in order to account for the crimes perpetrated during colonial rule.

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This final chapter in Part I outlines the remedies that must be developed to address colonial crime. It begins by emphasizing the importance of recognition of these activities as wrong. It addresses current activities, including meaningful apologies, litigation, return of cultural property and reparations processes, and derives inspiration from initiatives instigated by Barbados Prime Minister Mia Mottley and others. The chapter outlines how restitution, reparations and compensation alongside a solidarity-oriented attitude can replace denial with accountability, greed with empathy and harm with recovery.

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The thirst for system change is growing in the face of the climate crisis. Yet the prospect for translating rhetoric into action will remain remote if power brokers that benefit from the international financial architecture remain unchanged. Incontrovertible evidence shows that the climate crisis emanates from extractivist anthropocentric systems erected under colonial rule that have become entrenched. These were built by European powers based on their perceived racial superiority over others, ostensibly promoting Commerce, Christianity and ‘Civilization’. The colonial project was presented to their public and to rival colonizers as part of Europeans’ inalienable right to free trade, adventurism and proselytization. Decolonization ended direct European rule on other continents without accountability. The systems endured – promoted by colonists and accepted by incoming States faced with the desperate need to rebuild. These systems drive the climate and other modern crises.

This book identifies a typology of colonial crimes that lie at the heart of contemporary injustice through examples from across the globe. The categorization intends to stimulate discussions around tailored remedies to combat the continued impact of these crimes in undermining peace, security, development and sustainability. The work addresses extractivist economic activities that sustain the climate crisis, emphasizing their link with colonization, but articulates solutions for system change. These include explicit codification of the crime of ‘unjust enrichment’ to unlock climate financing, in conjunction with a governance approach based on 16 sub-regions to defeat colonial-era enhanced fragmentary politics that detract from addressing the urgency of the current challenge.

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The scale of finance required for the sharp systemic change needed is referenced as a brake on why system change is difficult to achieve. This chapter advocates a perpetrator-based rather than victim-centred approach, that calls for tracking extracted wealth that drove environmental damage by mainstreaming the crime of unjust enrichment that already exists within legal systems. Extending this to tackling unfairly accumulated wealth that transferred into private hands during and after the colonial era, not least to shareholders and executives of extractive industries would stop harmful activities, strike a blow for justice, fund the transition and lay down a clear marker for acceptable economic behaviour within a sustainable society.

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This concluding chapter identifies ten statements that characterize the international financial architecture. It argues these animate a vicious cycle that enable impunity for the climate and social crises. The chapter addresses how this cycle can be disrupted by halting specific economic activities, addressing colonial and contemporary crimes, unlocking wealth and looking beyond sovereign States that are deeply implicated in the problem and therefore resistant to change. It demonstrates how a virtuous cycle can be constructed through situation-specific pragmatic collaboration and cooperation across national boundaries in a world composed of 16 inhabited regions.

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Discussions around colonial crime are summarily dismissed in former colonial powers, whose official histories airbrush these activities out. Efforts to reference colonization are met with vehement rebuttal from those who do not feel the need to make themselves aware of the facts, or with irritated pauses prior to a change of subject. This cultivated mass amnesia lies in contrast to discussions in former colonies, where all ills are blamed on colonial history, thus exonerating post-colonial governments. This introductory chapter sets the scene for understanding why the planet’s most recent colonial history is deeply relevant to its present. It also highlights the necessity for careful calibration of the issues in order to design solutions that mitigate society’s multiple and complicated contemporary challenges.

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