Reparations and International Law: How are Reparations to be Determined (Past Wrong or Current Effects), Against whom, and what form Should they Take?

Summary

INTRODUCTION

Around two centuries ago the anti-slavery movement of the 19^th century campaigned to abolish the slave trade that had become a part of ‘civilised’ European and American life. While the anti-slavers and their movement achieved victory in their campaign to outlaw slavery and the trade, a new campaign is currently underway. That crusade – driven by a group that I shall term ‘reparationists’ – is for compensatory justice for the acts of slavery committed in previous centuries. The stakes in this crusade are high, and the issues are controversial.

This chapter discusses reparation for slavery as a vehicle for broader discussion about reparation claims for past injustices. The perspective is that of an international lawyer. In the context of slavery reparation, as is the case with many other contexts involving reparation claims for mass atrocities, international law principles are engaged and often expressly relied upon. As we shall see in the slavery context, for instance, African States are claiming reparation against Western States, and are casting their claims in the language of international law – State responsibility, crimes against humanity, genocide – and calling for reparation in the form of restitution, compensation, and/or satisfaction, terms that are reflected in the international law rules on State responsibility.

Although I express my doubts about the viability of a claim for reparation for slavery from within the current international law paradigm of State responsibility, a brief discussion of the international law on responsibility remains relevant. The paradigm provides the frame of reference for any slavery reparation claim, and indeed, the forms of reparation that exist in the legal paradigm are the forms of retributive and compensatory justice which reparationists argue for when pursuing their claims. Because of the weaknesses identified in respect of legal claims for slavery reparation, as an alternative I have considered ways in which political strategies might be employed to achieve reparation. In so doing, I have considered the difficulties that face slavery reparationists in their attempts to secure reparation (in its various forms). While there are no firm answers, the suggestion here is that the topic of reparations requires creative and strategic thinking.