The United Nations and Reparations for the Trans-Atlantic Slave Trade and Colonialism

Christa-Gaye L. Kerr

Vol. 40 Associate Editor

Every few years, the call for reparations for the Trans-Atlantic slave trade, colonialism, and post-colonialism enter global discourse. In 2001, leaders from around the world held the World Conference Against Racism (“WCAR”) in Durban, South Africa under authority of the United Nations General Assembly Resolution #52/111.[1] There were two noteworthy and seemingly disparate outcomes from this Conference. First, the Durban Declaration and Programme of Action (“DDPA”) acknowledged the historic and modern-day practices of slavery and the slave trade as morally disgraceful, and activities that would be listed as a crime against humanity today.[2] On the other hand, there was an outright refusal by certain countries from the European Union to apologize for slavery. This push was led by Britain and joined by Spain, Portugal, and the Netherlands who believed that formally apologizing for slavery and colonization (as requested by African, Caribbean, Latin American and Asian countries) would create legal implications that would force their countries to pay reparations. In order to appease these countries, the European Union released a draft statement noting its “regret” about the Trans-Atlantic slave trade. The statement read in part, “The European Union profoundly deplores the human suffering, individual and collective, caused by slavery and the slave trade. They are among the most dishonourable and abhorrent chapters in the history of humanity. The [EU] condemns these practices, in the past and present, and regrets the suffering they have caused[.]”[3] Statements such as these are not uncommon, but they do nothing to align with the principles and precedents set by the United Nations regarding crimes against humanity and reparations. Reparations have long been seen as the best way to atone for international wrongs. Factory at Chorzów made this international precedent. In that case the Permanent Court of International Justice (“PCIJ”) stated, “reparation must, as far as possible wipe out all the consequences of the illegal act[.]”[4] Additionally, the ILC’s Articles on State Responsibility of States for Internationally Wrongful Acts state in Article 31, “The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.”[5] With regards to slavery and colonization, this is complemented by Article 14 which notes, “The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.”[6] For African, Latin American and Caribbean countries, the consequences of the illegal acts of slavery and colonialism have yet to be eliminated, and European countries and the United States have yet to make reparations for the effects of their actions. At the behest of African, Latin American, and Caribbean countries, the Final Document noted that slavery and the Trans-Atlantic slave trade were “among the major sources and manifestations of racism, racial discrimination, xenophobia and related intolerance[.]”[7] Because correcting international wrongs is important to the United Nations, the organization has implemented mechanisms – such as the International Court of Justice and International Tribunals – to facilitate restitution for global atrocities. The United Nations is comprised of the nations who benefitted from slavery and colonialism and those who were subjected to these atrocities[8] and the United Nations already has set mechanisms that allow for discussions on and atonement for issues that affect multiple countries or groups of people; issues like the Trans-Atlantic slave trade, slavery, and colonialism. Reparations for the Trans-Atlantic slave trade and for colonialism can and should take many forms. Often, the loudest calls are for apologies and monetary compensation. While monetary compensation has its practical benefits for the receiving country, it is not the most effective way to eliminate all the consequences of slavery and colonialism. Financial reparations would be most beneficial to the recipient countries in the form of debt cancellation and repayment. Many former colonies were forced to pay colonial debts when they gained their independence. These payments served to further destabilize and undermine growth and development and have left these countries playing catch-up to this day. Economist Jeffrey Sachs has suggested (though in the context of neocolonialism and the World Bank and International Monetary Fund (“IMF”)) that Africa’s US $200 billion debt be cancelled or be obstructed. He stated, “Africa should say: ‘Thank you very much, but we need this money to meet the needs of children who are dying, right now, so, we will put the debt-servicing payments into urgent social investment in health, education, drinking water, the control of AIDS, and other needs.’”[9] The same idea rings true for colonial debt. The monies that are being paid out, to essentially maintain local sovereignty, could be put towards the development of the country and the welfare of the people. The United Nations has the setup to facilitate discussions on the cancellation and repayment of these debts to allow for an influx of money that could allow these priorities to take center stage. Less so than the calls for apologies and compensation are the calls for a restructuring of the trade regimes of the world. Undoubtedly, the global trade regime has its roots in slavery and colonialism. Most of the countries that are considered the global north participated heavily in and benefitted from the Trans-Atlantic slave trade and colonialism, while those that are considered the global south are those that suffered from these atrocities. The global south has been left impoverished by the effects of slavery, colonialism, and post-colonialism and thus come into trade negotiations the weaker party. Their weaker position is taken advantage of and leaves them with little in the way of power or recourse for any wrongs done. Restructuring the trade regimes would require greater parity in the negotiations between trading partners in the global north and south. Admittedly, this is a utopian ideal and is unlikely to be implemented because it requires stronger countries to show restraint in their negotiations with weaker countries. This, however, would allow countries in the global south to engage in trade agreements that would benefit them. Organizations like the United Nations Conference on Trade and Development[10] (“UNCTAD”) are leading the efforts to “support developing countries to access the benefits of a globalized economy more fairly and effectively.”[11] Improving the reach and the effectiveness of organizations like UNCTAD would enable the redistribution of power in trade relations between countries in the global north and the global south. The Trans-Atlantic slave trade and colonialism have contributed to social ills like racism and to long-term destabilization of countries in Africa, Latin American, and the Caribbean.[12] International law requires that reparations be paid for states’ wrongs against other states, yet there have yet to be reparations for these atrocities. The United Nations can be an effective mechanism to ensure that countries honor their obligations when it comes to reparations for slavery and colonialism, as the United Nations has the structure to facilitate discussions on the cancellation and repayment of colonial debt. It also has organizations in place that can facilitate restructuring of the global trade regime that would allow countries in the global south to have more parity with their trading partners in the global north.

[1] G.A. Res. 52/111, U.N. Doc. A/52/642, Third Decade to Combat Racism and Racial Discrimination and the Convening of a World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance (Dec. 12, 1997). This resolution was adopted by the United Nations without a vote. [2] World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, ¶ 13, A/CONF.189/12 (2001). [3]Chris McGreal, Britain Blocks EU Apology for Slave Trade, The Guardian (Sep. 3, 2001), https://www.theguardian.com/world/2001/sep/03/race.uk. [4] Factory at Chorzów (Ger. V. Pol.), Judgment, 1928 P.C.I.J. (ser. A) No. 17, at 47 (Sept. 13). [5] Int’l Law Comm’n, Rep. on the Work of Its Fifty-Third Session, U.N. Doc. A/56/83, at art. 31 (2001). [6] Id. at art. 14. [7] World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, ¶ 13, A/CONF.189/12 (2001). [8] There are currently sixteen UN members that have held colonies; most of these colonies are also current members of the United Nations. There are still eight countries in the UN who continue to hold territories: Australia, Denmark, France, Netherlands, New Zealand, Norway, the United Kingdom, and the United States. [9] Africa Should Not Pay Its Debt, BBC News (July 6, 2004), http://news.bbc.co.uk/2/hi/business/3869081.stm. [10] UNCTAD is a permanent intergovernmental body established by the United Nations General Assembly in 1964. UNCTAD is part of the UN Secretariat and reports to the UN General Assembly and the Economic and Social Council but has its own membership, leadership, and budget. It is also part of the United Nations Development Group. [11] About UNCTAD, https://unctad.org/en/Pages/aboutus.aspx (last visited Nov. 18, 2018). [12] World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, ¶ 14, A/CONF.189/12 (2001). The views expressed in this post represent the views of the post’s author only.