Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery MaxDu Plessis Human Rights Quarterly - Volume 25, Number 3, August 2003, pp. 624-659 Abstract This article considers the issue of reparation for slavery and the claim for reparation advanced by African states against the West. The paper begins by briefly outlining the principles relating to State responsibility and reparation in international law, and gives an overview of the recognised forms of legal reparation that exist. The paper then provides some exploratory discussion on the issue of reparation for slavery. It is exploratory in the sense that this is a matter which has received scant attention in recent international law literature. As regards the current call for reparation, the author identifies the weaknesses of legal claims within the existing international law paradigm of State responsibility. As an alternative, the paper considers ways in which political strategies might be employed to achieve reparation. In particular, the author aims to align calls for reparation for slavery with existing claims to development by African states, as a means by which a moral global economy can be achieved. In this regard, the author considers the feasibility of the different forms of reparation, insofar as they are able to underpin and advance the idea of a moral global economy. The paper also briefly examines the issue of reparation for colonialism and considers how the insights as regards reparation for slavery might be useful in relation to reparation claims for colonialism. I. Introduction Perhaps the most important forerunner of today's human rights system was the anti-slavery movement of the nineteenth century and its crusaders' attempts to abolish the slave trade that had become a part of "civilized" European and American life. 1 Nearly two centuries later reparationists of today pick up where the anti-slavery movement left off and campaign tirelessly for compensatory justice for the acts of slavery committed in previous centuries. 2 That their crusade is gaining momentum and influence is evidenced by the recent events in Durban at the United Nations World Conference against Racism, Discrimination, Xenophobia and Related Intolerance, to which South Africa played host in 2001. 3 One of the most divisive issues at the Durban Conference, an issue that threatened at first to prevent the Conference from taking place, 4 and then nearly derailed the Conference once it got underway, 5 was that of reparation for slavery. My task in this paper is to consider the international law implications of this claim for reparation and to explore the feasibility of claims made by Africa against the West for restitution, compensation, and/or satisfaction in relation to the practice of slavery. I will explain what my focus is, lest there be charges down the line that I have missed any number of myriad points that arise out of this difficult topic. The issue of reparation for slavery 6 is at once [End Page 625] overwhelming and complex. It is overwhelming because of the scale on which slavery was practiced, 7 and it is complex because of the number of different scenarios in which claims could ostensibly arise in the African context. 8 As a result, rather than attempting a comprehensive trawl of all the historical scenarios that might found reparation claims, my aim is somewhat more modest. My focus is limited to those claims for reparation which arise out of the Atlantic slave trade, a historical period which spans some four centuries from 1440-1870. And, as I have said, my concern is the call for reparation made by Africa against those Western states that historically perpetrated acts of slavery. 9 Furthermore, there is a measure of definitional generalization in the article. Reparationists loosely use the term "the West" to denote a collective of largely developed entities that as colonial powers involved themselves in slavery. But it should be immediately apparent that not all "Western" entities were guilty of slavery. Some powers in the West did not partake in the activity and the measure of guilt between those that did is by no means [End Page 626] uniform; likewise, not all African regions were subjected to slavery, and some lost more than others to the trade. 10 The practice of slavery, which stretches back so far into the past, implicates so many groups of people, and touched the lives of so many millions, defies neat definitions and descriptions for those interested in pursuing reparation. My ultimate concern is to investigate the feasibility of claims for reparation made by one group (African) against another (the West). To do so in a workable fashion, I have, along with reparationists, been forced to resort to labels. Given that I am primarily concerned with the international law aspects of claims for slavery reparation, I begin by briefly outlining the principles relating to state responsibility and reparation in international law, and by providing an overview of the recognized forms of legal reparation that exist. 11 The paper then provides some exploratory discussion on the issue of reparation for slavery. It is exploratory in the sense that this is a matter which has received scant attention in recent literature. As regards the current call for reparation, I have identified the weaknesses of legal claims within the existing international law paradigm of state responsibility. As an alternative, I have considered ways in which political strategies might be employed to achieve reparation. In particular, my aim has been to align calls for reparation for slavery with existing claims to development by African states as a means by which a moral global economy can be achieved. Reparationists argue that the West cannot proselytize in relation to human rights while simultaneously skirting the question of reparation for injustices committed by its governments in the past. In this regard, I have considered the feasibility of the different forms of reparation insofar as they are able to underpin and advance the idea of a moral global economy. Before concluding, I briefly examine the issue of reparation for colonialism and consider how the insights as regards reparation for slavery might be useful in relation to reparation claims for colonialism. [End Page 627] II. Reparation for Slavery A. Calls for Reparation for Slavery and International Law The strength of the moral argument for reparation for slavery appears to be unassailable. Historical evidence confirms—as delegates at the Durban Conference stated that: lavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims, and. . . that slavery and the slave trade are a crime against humanity and should always have been so, especially the transatlantic slave trade. . . 12 The history of the human rights movement is a history of political strategizing and moral argument in the pursuit of justice, and the current call for reparation for slavery follows the same route. What remains to be worked out is the best way forward for vindication of the moral claims to reparation. In this section I wish to focus on the argument by those reparationists who suggest that there is a legal channel which ought to be pursued in this regard. At present, various legal routes to reparation are envisaged by reparationists. In the domestic context, for instance, African Americans have brought actions against surviving businesses within the United States that profited from slavery. 13 At the international level, claims are envisaged by states (or international organizations on their behalf) against other states for their practice or endorsement of slavery during the Atlantic slave trade. 14 [End Page 628] The latter is of primary interest to me in this paper, given that the call by Africa for reparation from the West is situated at the international level. This context, involving claims of guilt being leveled at states, ostensibly triggers issues of state responsibility in international law. International responsibility is commonly considered in relation to states which are viewed as the normal subjects of international law. 15 Moreover, in all inter-state disputes the right sought to be vindicated is that of the state and not that of the individual or direct victim. The Permanent Court of International Justice (PCIJ) noted in the Mavrommatis Palestine Case that "y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law." 16 Responsibility is today regarded as a general principle of international law and has formed the basis of an extensive study, lasting nearly 40 years, by the International Law Commission (ILC). Under the guidance of Professor James Crawford, the project has come to a close in the recent adoption by the ILC of its Articles on State Responsibility (2001). 17 Generally speaking, the principle of responsibility is a natural concomitant of the substantive rules of international law, and the law of responsibility is concerned with the happenings and consequences of illegal acts and the reparation which such illegal acts entail. As the PCIJ famously noted in the Chorzow Factory (Jurisdiction) Case: "It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form." 18 Reparationists worldwide intuitively cleave towards this idea of responsibility in their drive for slavery reparation and many of the forms of reparation they argue for mirror those which are found in the international area of state-state responsibility. 19 The ILC Articles on State Responsibility provide in Article 34, under the heading "Forms of reparation," that "[f]ull [End Page 629] reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination. . . ." 20 Restitution in kind ("to re-establish the situation which existed before the wrongful act was committed" 21) is the first form of reparation available to a state injured by an internationally wrongful act. It was granted for instance in the Temple case 22 where Thailand was ordered to return to Cambodia religious objects which it had taken illegally from a temple in Cambodia. It is clear that the obligation to make restitution is not unlimited, and the ILC Articles provide the following qualifications with respect to the grant of restitution. Restitution will not be granted where it is "materially impossible," 23 and it may not be granted where it would "involve a burden out of all proportion to the benefit deriving from restitution instead of compensation." 24 Restitution is granted only in exceptional cases and monetary compensation is far more commonly used as a means of "wiping out the consequences of the illegal act." 25 In this regard the ILC Articles provide that the State responsible for an internationally wrongful act is "under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution." 26 Compensation in this context is granted for any "financially assessable damage including loss of profits insofar as it is established." 27 For instance, in the Chorzow Factory Case compensation was awarded to Germany for the wrongful dispossession by Poland of the Chorzow Factory—then owned by German companies—in breach of a treaty concluded between the two states. The PCIJ held that where restitution in kind was not possible, payment must be made of a "sum corresponding to the value which restitution in kind would bear." 28 The third form of reparation to be found in the ILC Articles on State Responsibility and which bears relevance for reparationists, is that of satisfaction. "The state responsible for an internationally wrongful act is . . . oblig[ed] to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation." 29 Such measures may take the form of an "acknowledgment of the breach, an expression of [End Page 630] regret, a formal apology or another appropriate modality." 30 Satisfaction provides reparation in particular for moral damage such as emotional injury, mental suffering, injury to reputation and similar damage suffered by nationals of the injured state. 31 It is not a standard form of reparation, in the sense that the injury to a state may be fully repaired by restitution and/or compensation, but its place is well-established in international law and it serves a useful role in providing reparation for those injuries, not financially assessable, which amount to an affront to the state. 32 These three forms of reparation are called into service singly or in combination by reparationists in their arguments against the West. The ILC Articles themselves treat these forms of reparation as part of a coherent package aimed at providing "full reparation" for international wrongs. Article 31 reads that "[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act." Accordingly, the pursuit of "full reparation" involves the flexible use of each of the types of reparation mentioned, and to the extent that one form of reparation is dispensed with or is unavailable in the circumstances, others become correspondingly more important. 33 B. Too Long Ago—The Problem of the Inter-Temporal Principle The present African call for reparation is made by the Organization of African Unity (OAU) on behalf of African states. This strategy reflects a suggestion, made by Lord Anthony Gifford at the First Pan African Conference on Reparations, that "ome form of appropriate, representative and trustworthy body" be identified that can process the claim on behalf of "all Africans, on the continent of Africa . . . who suffer the consequences of the crime of mass kidnap and enslavement. . . ." 34 As regards the [End Page 631] defendants, Gifford suggests that the claim should be brought against the governments of those countries that promoted and were enriched by the African slave trade and the institution of slavery. 35 Leaving aside for the moment the problems associated with the immensity of such a claim, 36 the most striking hurdle facing reparationists is one that prefigures any practical difficulties associated with its enforcement. In the language of state responsibility, reparationists face the task of proving that present-day Western states are "responsible" for the slavery practice during the Atlantic slave trade. Any attempt to pin responsibility on today's governments for the slavery committed by their predecessors runs into obvious difficulties involving complex questions of state succession, continuity and identity. 37 Perhaps more fundamentally, reparationists face the hurdle of showing that the conduct complained of was unlawful at the time it was committed. In this context the ILC Articles on State Responsibility (2001) must be considered. The Articles deal with responsibility in a logical sequence, starting with a definition in Chapter I of the basic principles of responsibility, and moving on in Chapter II to define the conditions under which conduct is attributable to the state. Chapter III spells out in general terms the conditions under which such conduct amounts to a breach of an international obligation of the state concerned. Chapter II stipulates that one of the essential conditions for the international responsibility of a state is that the conduct in question is attributable to the state under international law. The general rule is that the only conduct attributable to the state at an international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs. Without more, this general rule would serve to catch the conduct of all nations who through their agencies involved themselves in the slave trade, making such conduct attributable to the nation in question. However, such attribution is only the first step in the process of imputing international responsibility. As a normative question, attribution must be clearly distinguished from the characterization of conduct as internationally wrongful. 38 The rules described in Chapter II of [End Page 632] the ILC Articles are concerned with establishing that there is an act of the state for the purposes of responsibility, yet to show that the conduct is attributable to the state says nothing, as such, about the international legality or otherwise of that conduct. In order to establish whether such conduct amounts to a breach of an international obligation of the state concerned, one is obliged to consider the general conditions of state responsibility set out in Chapter III of the Articles. And it is at this point that reparationists have to confront the sobering doctrine of inter-temporal law. Article 13 of Chapter III provides as follows: "An act of a state does not constitute a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs." 39 Article 13 states the basic principle that, for international responsibility to exist, the breach must take place at a time when the state is bound by the obligation, and is a guarantee for states against the retrospective application of international law in matters of state responsibility. 40 International human rights law adopts the same view in Article 11(2) of the Universal Declaration of Human Rights (1948); 41 in Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); 42 and in Article 15(1) of the International Covenant on Civil and Political Rights (1966). 43 Moreover, an examination of international practice and jurisprudence shows that this principle has hitherto been constantly applied, being either explicitly mentioned or implicitly followed. 44 [End Page 633] It is therefore clear that the lawfulness or wrongfulness of an act in international law must be established on the basis of obligations in force at the time when the act was performed. What then of slavery and slave-trading? 45 It is obvious that those who argue for reparation will be met with the refrain that these practices were not outlawed in international law during the period of the Atlantic slave trade. Principles of morality are not by themselves a sufficient condition for the emergence of an international law rule—there must be evidence of a wide state practice before a rule crystallizes—and as late as 1825 therefore, the US Chief Justice was able to show in the Antelope Case that slave [End Page 634] trading was lawful, notwithstanding international condemnation of its immorality, since it was then "sanctioned by the laws of all nations who possess distant colonies." 46 The general conclusion in the Antelope Case is echoed by Sirs Robert Jennings and Arthur Watts who, in one of the leading English works on public international law, indicate that in the early years of the nineteenth century customary international law did not condemn the institution of slavery and the traffic in slaves. 47 The United Kingdom abolished slave trafficking throughout its colonies in 1807, signed the Treaty of Paris in 1814 with France which led to cooperation in the drive towards the abolition of slavery, and in Vienna in 1815 succeeded in obtaining from the Powers a solemn condemnation of the slave trade in principal. 48 However, Jennings and Watts state that this was not enough to make the traffic in slaves a crime jure gentium at the time, and accordingly a number of treaties were entered into, beginning with the Treaty of London in 1841 (between the UK, Austria, France, Prussia and Russia), which aimed at ensuring international cooperation in the suppression of the trade. 49 So while it is undoubtedly clear that slavery and traffic in slaves are today prohibited in customary and conventional international law, the precise point at which these policies and practices became outlawed in international law is impossible to fix. In the words of Geoffrey Robertson, [T]here was no defining moment like the Nuremberg judgment, but rather an accumulation of treaties throughout the nineteenth century and a gradual abandonment by the Great Powers of their toleration of the practice, marked in turn by military offensives against traders . . . and by domestic court declarations that freed any slave brought within the jurisdiction. The point came somewhere between 1885 (the Treaty of Berlin forbidding slave-trading) and 1926, when the Slavery Convention confirmed that states had jurisdiction to punish slavers wherever they were apprehended. 50 Any claims in international law for reparation for the Atlantic slave trade, be they from states against other states or citizens against their own states, will therefore have to overcome the doctrine of inter-temporal law. 51 [End Page 635] One argument put forward by reparationists in an attempt to overcome the problem of the inter-temporal law principle is that the acts of slavery committed then amount to a violation of fundamental norms of international law now. Put differently, reparationists point out that the prohibition against slavery has attained the force of a jus cogens norm in contemporary international law with the result that there is some form of retrospective responsibility for the states that perpetrated slavery in yesteryear. It is likely that this argument will remain attractive to reparationists in light of the decision of the delegates at the Durban Conference to define the slavery committed during the Atlantic slave trade as a "crime against humanity." 52 However, the ILC Articles on State Responsibility make it clear that such retrospective blaming is not possible. The Commentary to Article 13 provides as follows: (5) State responsibility can extend to acts of the utmost seriousness, and the regime of responsibility in such cases will be correspondingly stringent. But even when a new peremptory norm of general international law comes into existence . . . this does not entail any retrospective assumption of responsibility. . . . (6) Accordingly it is appropriate to apply the intertemporal principle to all international obligations, and article 13 is general in its application. 53 It should be mentioned that Article 13 does not rule out the possibility of a state agreeing to make reparation for damage caused as a result of [End Page 636] conduct that was not, at the time committed, a breach of any international obligation in force for that state. 54 However, retrospective assumption of responsibility is rare in international law, 55 and is unimaginable in the context of reparation for slavery. The position of Western states was made clear at the Durban Conference, and their delegates ensured that the wording of the final Declaration would form no basis for legal claims by African states for reparation from the West. 56 In conclusion then, while human rights lawyers and reparationists may be eager to cast claims in legal language because of the currency of "rights talk," the legal path, at least insofar as international law is concerned, does not present itself as an attractive option to reparationists and is likely to continue to attract significant opposition from states. C. Political Strategies and Arguments from Morality and Consciousness Political strategies for the pursuit of domestic and international justice are, of course, familiar tools in the hands of human rights lawyers. Given the strictures of the legal paradigm, it appears that any feasible strategy for reparation for slavery must draw on moral arguments to secure political settlement of reparation claims. 57 This strategy is discernible, for instance, in [End Page 637] the OAU's decision to pursue a political, as opposed to purely legal, course to obtain reparation. In 1992, under the leadership of Chief Moshood Abiola, the OAU instigated the creation of the OAU Group of Eminent Persons for Reparations. The Group was charged with pressing the political agenda for reparation for the African slave trade and in 1993 convened the First Pan-African Conference on Reparations in Abuja, Nigeria, where it adopted the Abuja Declaration that officially committed the OAU to obtain reparation for slavery from the West. 58 Because existing legal mechanisms for the achievement of reparation do not exhaust the means by which reparationists can pursue their claims, I turn now to consider arguments for reparation which work outside of the legal context. D. A Moral Global Economy as Incentive for Reparation The historical fact of slavery presents the West with a dilemma. As a loose confederation of states emphasizing the need for international relations grounded upon democracy and human rights, 59 the West has to face the problem of how to deal with its own past and the historical injustices of the slavery and colonialism it practiced. 60 This dilemma has allowed reparationists their first opening to argue that reparation for slavery is a prerequisite of a moral global economy, and they have done so by pointing to a growing trend in the international community for governments to provide reparation to victims of historical human rights abuses. 61 The examples are well known [End Page 638] and include, for instance, Germany's enactment since World War II of several measures to pay victims more than US $50 billion in post-war reparation. 62 More recently, the Japanese government announced a US $1 billion program to undertake cultural and vocational projects as a token of apology for wrongs committed against former "comfort women." 63 In 1990 Austria made payments to the total of US $25 million to Jewish survivors of the Holocaust. 64 And it is not only the original Axis powers that have begun to provide reparation. Within the United States itself, the Civil Liberties Act of 1988 65 provides reparation for the World War II internment of Japanese Americans. 66 The Act provides for an acknowledgment and apology for the grave injustices done, and grants: (1) compensation in the amount of $20,000 to individuals of Japanese ancestry who were interned and who were living on the date of the enactment of the Act (or to their living heirs); and (2) a public education fund to facilitate public awareness of the internment and to prevent a recurrence. 67 According to reparationists, in a moral economy of nations, reparation achieves two goals. First, and most obviously, it provides a means to rectify historical injustices. 68 Secondly, it serves to facilitate higher awareness of [End Page 639] public morality through the use of market mechanisms, and in the process both parties' histories are given recognition, ultimately leading to a transfer of economic resources. 69 Such a transfer occurs through the conclusion of agreements that are entered into voluntarily between the parties, although this willingness to enter into such agreements often results from political pressure which draws on moral argument. 70 While this political approach is [End Page 640] not without its criticisms, 71 reparationists draw inspiration from the examples mentioned above and others to argue that there is a moral obligation to provide reparation for slavery. To them such reparation is an integral part of any moral global economy, for without it, the injustices of slavery are not dealt with and the history of Africa not legitimized. 72 But the political arm-twist comes from the argument that the West cannot endorse the notion of a just world order while simultaneously avoiding the issue of reparation for past injustices. For if it does not commit to reparation for slavery with the same zeal it has demonstrated in advancing human rights abroad, it runs the risk of being labeled hypocritical. 73 E. The Consciousness of the African Group One of the central obstacles to establishing a right (be it legal or moral) to reparation is that of causation. In order to prove liability for past wrongs in relation to slavery, reparationists need to show that current Western states bear responsibility for the actions of their predecessors during the period of the Atlantic slave trade. It is one thing to be able to show that the acts of [End Page 641] Western powers at a certain point in history caused injury to the innocent victims of the slave-trade; it is quite another to insist that the breach perpetrated then carries through to found responsibility for Western states now. In the national context this issue of "historical" causation has proven insurmountable to African American legal attempts to claim compensation from the present-day US government for the acts of slavery perpetrated in the early years of the nation's existence. As yet, they have not successfully been able to sue for reparation in domestic US courts. For instance, in the first federal appellate court case to hear a claim for African American reparations, Cato v. United States, the plaintiffs sued the United States for damages for past and present injustices related to ancestral slavery. The court dismissed their claim for lack of an arguable basis in law, in particular, lack of causation and standing. 74 In this regard Tuneen Chisolm, a US academic, writes that the standing doctrine and causation doctrine are barriers to African American reparation suits in tort, largely because of a dominant theory of rights. 75 Within this paradigm, each individual is responsible for his or her behavior only. Thus vicarious liability for the actions of others is only applicable where the defendant has control over the offender; if no such control relationship exists, then there is no legal (or moral) responsibility for the actions of others. "In keeping with the dominant perspective that the individual wrongdoer must pay for the wrong, the law [accepts] the corollary principle that a non-wrongdoer should not be required to pay for the wrong." 76 The death of the last slave and slaveholder therefore obviates the need for reparations for slavery through judicial relief. As Chisolm concedes, "cases based in tort necessarily fail for lack of standing and/or causation. Therefore, the tort suit as a vehicle for African American reparations is not a viable option." 77 There is no reason to believe that the position is different at the international level. The international law rules on state responsibility (both in the inter-state context and the international human rights context) presuppose that there is a connection between a past wrong and a present claim. 78 Similarly, any legal claim for reparation for slavery at the international level faces the seemingly insurmountable hurdle of proving that the present day Western states caused the injury. The dominant theory of rights presents an obstacle not only to legal [End Page 642] attempts to claim reparation, but also to political claims, and opponents of reparation to Africans (and African Americans) analyze the merits of the remedy from this dominant perspective. With their insistence that an actor should pay only for harm that is actually caused by that actor, and that only those victims that actually suffered should receive justice, such opponents conclude that the idea of reparation for slavery is "absurd, frivolous, or unworthy of serious consideration." 79 Is there any way around this problem in the political pursuit of reparation for slavery? To reparationists, the answer lies in the idea of solidarity. In stark contrast with the dominant perspective, African Americans, for instance, frame their claims for reparation in terms of group identity. 80 This community is constituted through the experience of common struggle. Mari Matsuda describes the kinship wrought of common struggles in the following terms: Victims necessarily think of themselves as a group, because they are treated and survive as a group. The wealthy black person still comes up against the color line. The educated Japanese still comes up against the assumption of Asian inferiority. The wrongs of the past cut into the heart of the privileged as well as the suffering. 81 A similar strategy is evident in the political agenda of the OAU and its commitment to seeking reparation through some form of "appropriate, representative and trustworthy body" that represents the claims of all Africans. 82 At the level of community of African states, the OAU is able to advance what might be termed an "African consciousness." This African consciousness is reflected in the Preamble to the Draft Declaration of the African Preparatory Regional Meeting for the World Conference Against Racism: "the great importance African peoples attach to the values of solidarity, tolerance and multiculturalism . . . constitute the moral ground and the inspiration for our struggle." 83 From this perspective group identity allows all Africans to perceive the [End Page 643] call for reparation through the lens of communalism and collectivism, and to identify a continuing and uncompensated wrong to a corpus of Africans throughout the world. The result is that the same factor that would inhibit a claim for reparation from the dominant perspective becomes an empowering means for achieving reparation when viewed from the perspective of an African consciousness. What about the perpetrators of slavery? From the standpoint of the African consciousness, the wrongdoer is similarly not limited to some prescribed set of individuals such as slave owners, or one guilty state in particular. 84 Rather, the more appropriate description of the wrongdoer is also to be drawn from an understanding of the collective: the West, through governments, laws, courts, consumers, producers, economic ideology and institutions, perpetrated and perpetuated the institution of slavery. According to this logic, the West as a collective must be held responsible for reparation. Furthermore, the West, unlike individuals, does not have a natural life. As a result, the African consciousness perspective is a vehicle for arguing against the dominant perspective of rights which seals off claims for reparation along with the death of the last slave-holder. To do so, argue reparationists, is to ignore the fact that the countries that practice slavery are doing well and still reaping the benefits of slave labor. 85 Having identified a collective victim and wrongdoer as part of an overall political strategy, reparationists are still faced with the question: what is the uncompensated wrong? Various wrongs might be identified as being unrepaired, but broadly they can be classed under three heads. First: the mass kidnap and enslavement of Africans. Second: the contribution made by slaves to the prosperity of the slave-owning nations. Third: the consequences of slavery which manifest themselves in continuing systemic discrimination. The first injury is readily apparent from the historical evidence that documents the Atlantic slave trade. The injury is easily identified by [End Page 644] historians and other experts who can reliably prove "the invasion of African territories, the mass capture of Africans, the horrors of the middle passage, the chattelization of Africans in the Americas, the extermination of the language and culture of the transported Africans." 86 The second injury would require historical, sociological, and economic evidence. Some experts argue, for example, that the slave trade was a principal factor contributing to the generation of wealth by Western nations. For instance, Marketti, who developed a mathematical formula to determine the value of slave labor exploited from African Americans, writes: I am convinced that [the United States'] present day wealth, rather than a result of how economic activity was organized or of access to natural resources, is more attributable to the fact that at a crucial point in the development of the industrial United States, large amounts of free labor were deployed, from which surplus was extracted and filtered through various exchange mechanisms to nearly every budding industrial enterprise in the nation. 87 While there is obvious disagreement about the extent to which slavery boosted economic development in the West, it is equally clear that an argument can be made that the use of slave labor was a significant contributing factor. 88 The third injury is perhaps the most contentious. 89 Essentially, the argument runs that slavery has a continuing effect which is manifested in racial inequalities which exist not only as between individuals, but also as between nation blocs. 90 For instance, in the African American context Oliver and Shapiro argue as follows: [End Page 645] Disparities in wealth between blacks and whites are not the product of haphazard events, inborn traits, isolated incidents or solely contemporary individual accomplishments. Rather, wealth inequality has been structured over many generations through the same systemic barriers that have hampered blacks throughout their history in American society: slavery, Jim Crow, so-called de jure discrimination, and institutionalized racism. 91 Lord Gifford makes the same argument more generally: [T]here is a further element in the legacy of the slave trade which is the damage done within Britain, within the United States and other Western societies. The inhuman philosophy of white supremacy and black inferiority was inculcated into European peoples to justify the atrocities which were being committed by a Christian people upon fellow human beings. That philosophy continues to poison our society today. 92 Such racism, practiced between people, is also perceived to be at work between nations. The following plea by Mazrui is indicative of a belief that Africa as a whole is being sidelined in global affairs: And why should all the permanent seats of the United Nations Security Council be given to countries which are already powerful outside the UN? Is there not a case for giving Africa a permanent seat with a veto—not because Africa is powerful but because it has been rendered powerless across generations? . . . There is a primordial debt to be paid to black peoples for hundreds of years of enslavement and degradation. Some of the causes of global apartheid lie deep in that history. 93 [End Page 646] While the connection between slavery and continuing patterns of racism needs to be examined in more detail, one cannot discount the fact that current social and economic inequalities between whites and blacks, and between the West and Africa, have some relation to past patterns of discrimination, foremost of which must be slavery. 94 Slavery, an institution supported by the belief that people were inferior and appropriately subordinated because of their race, is a practice that is inexorably linked with the ideology of racism. 95 To assume that the statistics reflecting inequities between the West and Africa have no relation to such past patterns of discrimination is to accept the argument that these statistics correctly reflect the inherent abilities or disabilities of Africa and its people. While it is plainly obvious that there are innumerable social and political factors which contributed towards these inequities, it is equally as clear that the practice of slavery deserves inclusion high up on that list. 1. The Reparation Envisaged But even if the political strategies for slavery reparation were to prove morally compelling, the real difficulty lies in determining the exact nature of reparation which ought to be claimed and the mechanics of how such reparation is to be provided. As stated earlier, reparationists appear to have taken their cue from the current paradigm of state responsibility and consider that there are three forms of reparation to be entertained in the [End Page 647] context of slavery—restitution, compensation, and satisfaction—either singly or in combination. 96 While the claim for reparation will not be brought within the state responsibility paradigm of international law, the paradigm provides a common frame of reference for the parties involved and is useful nonetheless in the political context in which the claims are advanced by Africa as against the West. 2. Restitution Starting with restitution, it is enough to note that as a form of reparation it will have limited application, given the scale of slavery and the extent of time over which it took place. At best then, restitution might be possible in relation to acts which were committed generally as part of the policy of slavery perpetrated by the West. For instance, it is not inconceivable that various treasures and works of art that were taken by colonial powers in the process of enslaving African people might be capable of being restored to African states. Gifford mentions as an example the Benin Bronzes, currently in the British museum. 97 This form of reparation was recognized by the delegates at Durban who, in the final Declaration, recorded "the need to develop programmes for the social and economic development of [developing countries]" in various areas, one of which is the "[r]estitution of art objects, historical artefacts and documents to their countries of origin." 98 Another example of restitution as a relevant form of reparation in this context is the granting of assistance to persons who wish to return to Africa, even though their numbers may be small. In this regard the Durban Declaration calls for programs aimed at the "facilitation of welcomed return and resettlement of the descendants of enslaved Africans." 99 3. Compensation Compensation for slavery presents arguably the most difficulties as a form of reparation, and is politically the most controversial. What appears to drive reparationists in their claim for monetary payment is the belief, as Martha Minow puts it, that the core idea behind reparation stems from the [End Page 648] compensatory theory of justice: "njuries can and must be compensated. Wrongdoers should pay victims for losses. Afterwards, the slate can be wiped clean." 100 "This . . . notion of justice is commonplace in the context of bankruptcy, contracts, and even personal injury law." 101 International law governing state responsibility endorses the same notion of justice and provides that compensation is available as legal recompense for "any financially assessable damage." 102 The problem, as Minow points out, is that there is a sense of "inappropriateness of putting a value on losses from mass atrocity." 103 This is particularly true in seeking reparation for slavery where one is confronted with a variety of problems, the first of which is how to assess the damage. Gifford argues that the damage might be classified and researched under different headings: economic damage, cultural damage, social damage and psychological damage. However, to put monetary figures on any of the elements raises questions to which Gifford himself has no answers: [H]ow do you assess the value of the loss to an African people of a young person, kidnaped and transported over 200 years ago? What figure can be placed on the psychological damage inflicted by a system which is still deeply racist? 104 Can it be proved that the slave system destroyed old and flourishing African civilisations, and if so, how is their value to be measured? What level of restitution is appropriate for the African peoples of the Diaspora? 105 Gifford's rhetorical questions do not pose the only problems besetting compensation awards. Even if a meaningful assessment of damage can be performed, how, for instance, will justice be done as between the claimants? Not all Africans (individuals or states) suffered equally, and some may not have suffered at all. 106 Opponents of reparation for slavery therefore insist that any meaningful compensation requires that the various classes of [End Page 649] injured victims be segregated to avoid some being over-compensated and others under-compensated. 107 The most plausible solution to this problem appears to lie in the idea of the African consciousness. Reparationists, perceiving issues from a communitarian point of view, would find a uniform award consistent with group injury. 108 Such uniform awards of compensation have already been made in other contexts. For instance, reparation paid to Japanese Americans for their internment during the Second World War was uniform and did not conform to the dominant view that damages should be consistent with the relative injuries of the parties. 109 Through a reliance on the African consciousness, the idea of collective justice would be one way to overcome problems of distributive justice on an individual level. Such a collective perspective would in any event need to be adopted to overcome problems of distributing blame as between wrongdoers. Opponents of reparation insist that only those who were to blame for slavery ought to pay compensation, and then only such an amount as is commensurate with their blame. Those advocating reparation have examined the possibility of forcing payments from companies and individuals that benefitted from slavery, but Gifford concedes that uch an approach would create more problems than it solved. Enormous research would be needed to identify the companies and the families, to determine how much money was made by their ancestors, and to calculate how much should be forfeited by the present shareholders or family members. The process would inevitably be somewhat arbitrary, and potentially oppressive, and it would be rejected both by the targets themselves and their governments. 110 A collective approach again presents itself as the only viable alternative. Gifford suggests that it is more appropriate to concentrate on the governments of the countries which fostered and supported the slave trade, which legitimized the institution of slavery, and which profited as a result. However, even if the African consciousness method makes uniform compensation by a collective of states a viable option, there are more significant problems to be faced. One of the most difficult to deal with is this: in assessing compensation claims, how far back should one go? As Human Rights Watch points out, "ecause human history is filled with wrongs, many of which amount to severe human rights abuse, significant [End Page 650] practical problems arise once a certain time has elapsed in building a theory of reparations on claims of descendancy alone." 111 By going back too far, "most everyone could make a case of some sort for reparations, trivializing the concept," and of course, "the older a wrong, the less the residents of countries called on to provide reparations will feel an obligation to make amends." 112 At the risk of sounding cynical, a focus on past wrongs and attempts to make amends by payments to living victims means that the total amount of any monetary award (be it to specific states or groups or individuals within those states) would quickly approach excessive sums which would serve only to scare Western governments away from the bargaining table. 113 The number of claimants it is meant to serve (states directly and their citizens indirectly) renders compensation, already riddled with the internal difficulties I have identified, unworkable. Is compensation therefore to be cast aside as a form of reparation for slavery? I believe not. As long as calls by reparationists for compensation for slavery are pragmatic there is no reason why they cannot be aligned with existing calls by developing states for assistance under the rubric of the emerging right to development in international law. 114 The call for compensation ought to shift away from attempts to compensate for racial injustices [End Page 651] against victims of the past (whereby states and their descendants hope to benefit in some way or another), and focus instead on correcting contemporary effects of past wrongs as they continue to present themselves in the here and now. Put differently, reparationists should focus less on demands for money to redress the historical injustice of slavery and concentrate instead on demands for compensation to address the legacy of slavery which manifests itself in the continuing racial inequality that pervades our world in the form of social and economic discrimination. 115 The drive for compensation for slavery therefore needs to be more carefully focused and more purposively applied for it to draw any support from the developed world. In this regard the call for compensation should be informed by the eventual goals for which reparationists strive. To my mind such goals would best be achieved not through an impossible attempt to compensate the descendants of the victims of slavery in the past—which Western states will consistently balk at—but by empowering the people and states of Africa in relation to their situation in the present. This empowerment ought surely to be the purpose behind Africa's call for reparation? As Mazrui points out, "[e]mpowering the African people in relation to [their] . . . states is the challenge of democratization. Empowering the . . . African states in relation to the world system is the challenge of international centering." 116 The details of how compensation can be used to democratize and internationally center need to be worked out, but some tentative suggestions are advanced here. 117 As regards democratization, the West can continue to increase material support to democratic trends in Africa. International lawyers have since the [End Page 652] early 1990s been arguing that the empowerment of the people within states is best advanced through the creation of democratic governments that represent them. 118 As President Thabo Mbeki has said, "[t]he new wave of democracy sweeping the African continent is a . . . sign that the conditions are emerging for the African people to realise a life of prosperity and to achieve the rebirth of our continent." 119 As regards international centering, programs of development are essential for the reconstruction of Africa and many such programs are already underway, giving credence to the idea of a right to development in international law. 120 The advantage of such development programs would be a discussion of reparation claims in terms of the impact of past slavery practices on contemporary respect for economic and social rights in the world order. 121 This focus would make it more likely for a Western public to accept the need to end a contemporary wrong connected to a historical injustice than to provide compensation for past wrongs per se. An approach thus based on economic and social rights would allow for an alignment of compensation schemes with the world's most acute development challenges—instead of doling out money on the principle that past victims deserve justice, the compensation becomes a vehicle for rectifying the social and economic problems that underpin today's victims' continuing marginalization. 122 Accordingly, compensation payments would be used for investment in education, housing, health care, job training, and skills transfer—portfolios which would assist African states to center themselves internationally through an improvement of the infrastructure of Africa as a whole. International scholarships and exchange programs for Africans would be a small part of this effort. 123 As a last point, it is trite that another development initiative by the West would be a continuation of measures to cancel the intolerable burden of debt which has become an impediment to sustainable development in many African countries. 124 To conclude, it is fitting to observe the eventual agreement of the delegates at the Durban Conference on this controversial form of reparation. The Durban Declaration shows an abandonment, no doubt due to sustained [End Page 653] pressure from Western governments that remained at the Conference, of the original position put forward by African ministers in their preparatory meeting in Dakar in January 2001. There the ministers had committed themselves to a position in anticipation of the Durban Conference which would focus on the provision of compensation to a group unsatisfactorily described as the "victims of the slave trade." 125 Besides the difficulty of identification of such victims, it is clear that the inclination of African states was to focus on righting the historical injustices of the past. In happy contradistinction to that position, the Durban Declaration has adopted a development-based vision of compensatory justice, a vision that while not providing a guaranteed buy-in from Western states, will at least avoid their overt opposition. Article 158 of the Declaration provides: [T]hat these historical injustices have undeniably contributed to the poverty, underdevelopment, marginalization, social exclusion, economic disparities, instability and insecurity that affect many people in different parts of the world, in particular in developing countries. The Conference recognizes the need to develop programs for the social and economic development of these societies and the Diaspora, within the framework of a new partnership based on the spirit of solidarity and mutual respect, in the . . . areas [of, inter alia] debt relief; poverty eradication; building or strengthening democratic institutions; transfer of technology; infrastructure development; education. 126 4. Satisfaction I come now to a consideration of satisfaction as a form of reparation for slavery. There is little doubt that the logical starting point for repair by the West would be a formal apology for the acts of slavery perpetrated in the past. Bill Clinton and the Pope have set an example in this regard by apologizing informally to distinct African communities for slavery. On a visit to various sub-Saharan nations, Clinton made an informal apology in Uganda for America's part in the slave trade. 127 The Pope set a similar example on a visit to the slave dungeons of Goree in Senegal in February 1992, asking forgiveness for slavery. 128 [End Page 654] A formal apology would be a measure of satisfaction, a recognized form of reparation in international law. In anticipation of the Durban Conference, African ministers called for such an apology in their Draft Declaration in the following terms: [T]he first logical and credible step to be taken at this juncture of our collective struggle is for the World Conference [against racism] to declare solemnly that the international community as a whole fully recognises the historical injustices of the slave trade and that colonialism . . . are . . . the most massive . . . human rights violations in. . . . [T]his recognition would be meaningless without an explicit apology by the former colonial powers or their successors for those . . . violations, and . . . this apology should be duly reflected in the final outcome of the World conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. 129 This stance was echoed, albeit in weakened form, by the South African Foreign Minister, Nkosozana Dlamini Zuma who opined that one of the methods of dealing with slavery "would be to acknowledge and recognize there was a historic injustice." 130 Martha Minow considers that official apologies can correct a public record, afford public acknowledgment of a violation, assign responsibility, but that they "are less good at warranting any promise about the future, given the shifts in officeholders." 131 As a result, unless the apology is "accompanied by direct and immediate actions . . . that manifest responsibility for the violation, the official apology may seem superficial, insincere, or meaningless." 132 It is with this point in mind that other measures of satisfaction become increasingly important—for instance, measures aimed at raising public awareness of slavery. These measures would focus on "legitimizing" the victims' side of history, and would be consistent with providing the moral global economy that reparationists seek. The Durban Declaration reflects such thinking in urging the United Nations, other appropriate international and regional organizations, and states to "redress the marginalization of Africa's contribution to world history and civilization by developing and implementing a specific and comprehensive programme of research, education and mass communication to disseminate widely a balanced and objective presentation of [End Page 655] Africa's seminal and valuable contribution to humanity." 133 One thinks of public education funds to facilitate public awareness of slavery and systemic discrimination. Chinweizu speaks, for instance, of the creation of a "Black Heritage Education Curriculum," to teach Africans their true history and to restore their sense of self-worth. 134 Similar measures include the institution of monuments and memorial days. In so doing, Africans as a group will eventually benefit as fallacies of inferiority are replaced by a true understanding of how integral the African presence has been to the success of Western economies. 135 III. Reparation for Colonialism The call for reparation for colonialism is closely aligned with the call for reparation for slavery. In the case of Africa, the period of slavery and the slave trade was followed by the period of colonialism. This period of colonialism continued the exploitation of Africa, and prevented African states from bringing any independent claims for reparation for slavery. Gifford points out that until recently African peoples had no independent voice in the world community: How could the people of, say, Ghana . . . make a claim for reparations when their country was considered to be an overseas possession of the very country whose people had kidnaped and enslaved their ancestors? . . . Even after the independence of African nations from colonialism, the shackles of neo-colonialism have fettered the power of African governments to speak with any real independence against their former conquerors. 136 As a result, the call for reparation for slavery is usually accompanied by a call for reparation for the colonization of Africa. For instance, delegates record in the Durban Declaration their acknowledgment of "the suffering [End Page 656] caused by colonialism and affirm that, wherever and whenever it occurred, it must be condemned and its reoccurrence prevented." 137 After affirming that colonialism is an evil never to be repeated, the delegates continue that "[w]e further regret that the effects and persistence of these structures and practices have been among the factors contributing to lasting social and economic inequalities in many parts of the world today." 138 I suggest that the political strategies in relation to slavery appear to be the most appropriate method through which to pursue reparation for the policy of colonialism and its lasting effects. As with slavery, so too with colonialism, the call for reparation does not fit easily within the current paradigm of state responsibility. For instance, if one focuses on the concept of inter-temporal law, it bears repeating that an act of state will not be considered a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs. 139 From the seventeenth to the early twentieth centuries, Western powers established colonies in many areas previously occupied by traditional societies. 140 Almost the entire African continent fell under Western rule. 141 However, up until at least 1945, colonialism was not a violation of international law. The Charter of the United Nations, framed in 1945, implicitly affirmed the legitimacy of colonialism while at the same time planting the seeds for its demise in recognising the principle of "self-determination of peoples." 142 By 1960 colonialism had probably become outlawed in international law by way of a gradual process—spurred on by the notion that colonial peoples had a right to "self-determine" their economic, culture and social futures—that culminated in the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples by the General Assembly in 1960. 143 The principle of self-determination received judicial approval by the International Court of Justice in the Namibia, 144 Western Sahara, 145 and East Timor cases. 146 In the East Timor case the erga omnes character of self-determination was proclaimed and it was stated that self-determination was "one of the essential principles of contemporary international law." 147 Notwithstanding its elevated status in contemporary international law, [End Page 657] the right to self-determination (and the corollary duty on states not to practice colonialism) was not legally recognized before the adoption of the UN Charter. 148 Any legal claims for reparation for colonialism will thus be opposed by the former colonial powers through a reliance on the doctrine of inter-temporal law. The only plausible approach then to reparation for colonialism is a political one built on moral argument. The same arguments that have been advanced in the context of reparation for slavery would be used in the colonial reparation context: the incentive of a global moral economy and the imperative of an African consciousness in the reparation struggle. The problems created by colonialism need to be addressed, and a call for reparation, in some form, surely has a legitimate moral grounding. Professor Anthony Giddens, in attempting to account for the huge differences in wealth and power between the West and the Third World, considers the leading theories that propose an answer: How valid are these theories? They all agree that the imbalance in wealth and resources between the First and Third Worlds has its origins in colonialism. In this they are surely correct, and without doubt it is also right to claim that the dependency relationships established during the colonial period have been maintained, and even accentuated, since then. Most Third World countries find themselves enmeshed in economic relations which hamper their economic development, but from which it is very difficult for them to break free. The result is that the industrialized areas of the world become increasingly prosperous, while many Third World countries stagnate. 149 As with slavery, the strength of claims for reparation would depend on the feasibility of the forms and degrees of reparation called for. The problems identified with regard to the different forms of reparation in the slavery context will be equally applicable to reparation in the colonial [End Page 658] context. In particular, calls for compensatory reparation that focus on empowerment of African studies today ought to be preferred over loose claims for compensation on account of historical victims of colonialism. Thus the need for democratic empowerment and international cantering should inform any call for compensation, and the strategies to achieve such empowerment that were proposed in the slavery context ought to prove useful. IV. Conclusion Reparation for slavery (and colonialism) is a multifaceted issue that requires realistic political debate. Given the inherent difficulties associated with such reparation claims, any strategy adopted by African reparationists will need to deal with the seemingly intractable legal problems associated with a claim for reparation, and focus instead on political strategies for success. However, within the political realm the success of any strategy will be weakened by unrealistic demands for unworkable forms of reparation. Return of stolen artefacts, expressions of regret for the slave trade, and programs to raise public awareness of slavery are examples of legitimate and feasible forms of reparation which African states, either corporately or singly, are entitled to on any moral account. But if Africans are to secure a moral global economy through the device of an African consciousness, African states have to adopt a purposive approach to their calls for compensatory justice which will draw the support of Western states. An approach which focuses on contemporary development problems has the advantage of being aligned with existing international human rights struggles under the banner of socio-economic advancement and the right to development. By translating the duty to make compensatory reparation for past racist practices into a duty to speed up development of third world states, reparationists "provide another reason for doing the right thing." 150 As a whole, each of the forms of reparation discussed in this article present their own promises and problems as responses to the history of slavery. While Western states such as the United Kingdom and the United States are understandably concerned about the implications of reparation claims, it is only through reasoned and appropriately goal-directed argument that African states will be able to convince them of an alternative that is worse. That alternative, in the words of Geraldine Van Bueren, is "that the passage of time has made Western states cosy with injustice." 151 -------------------------------------------------------------------------------- Max du Plessis graduated with an LL.M from the University of Cambridge and is an Advocate of the High Court of South Africa. He is a Senior Lecturer at the Howard College School of Law, University of Natal. Research for this article was conducted while the author was Occasional Lecturer at the London School of Economics and Political Science and Visiting Scholar, Faculty of Law, University of Cambridge. Notes Thanks to Priya Singh for research assistance and Steve Pete for moral assistance. Thanks too to Gerry Simpson at the LSE for helpful comments. The research for this paper was made possible by a grant from the University of Natal's Research Fund. 1. See generally Louis Henkin, International Law: Politics, Values and Functions, 13 COLLECTED COURSES OF HAGUE ACADEMY OF INTERNATIONAL LAW 208 (Vol. IV 1989), cited inHENRY STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 127 (2d ed. 2000). 2. As an example of the campaigning, see the website of the Africa Reparations Movement, at http://www.arm.arc.co.uk. (visited 12 Apr. 2003). For an example of collected material and relevant web links see the Social Science Information Gateway hosted by the British Library of Political and Economic Science, London School of Economics, at http://www.sosig.ac.uk/roads/subject-listing/World/slavery.html (visited 12 Apr. 2003). 3. Declaration, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 31 Aug.-8 Sept. 2001 (Durban, South Africa), available at http://www.un.org/WCAR/ (visited 12 Apr. 2003) [hereinafter Durban Declaration]. World Conference on Racism un.org 4. The United States, for instance, insisted that it would not attend the Conference if the agenda included the item of reparation for slavery. See Duncan Campbell, America May Boycott Racism Summit, GUARDIAN, 28 July 2001, available at http://www.guardian.co.uk/unracism/story/0,1099,541530,00.html (visited 13 Apr. 2003). America may boycott racism summit UN initiative threatened by row over Zionism and slavery debts theguardian.com 5. After the United States and Israel walked out of the Conference over the issue of Israel's treatment of the Palestinians, talks between African and European Union countries on the subject of slavery and reparations moved higher up on the Conference agenda. However, these talks soon ran into deep difficulties after African nations hardened their position with the result that European diplomats at the Conference expressed doubts about whether an agreement could be reached on the topic. See BBC News, Conference Split on Slavery Issue, 5 Sept. 2001, available at http://news.bbc.co.uk/1/hi/world/africa/1526511.stm (visited 13 Apr. 2003). BBC News | AFRICA | Conference split on slavery issue news.bbc.co.uk 6. Claims made by reparationists are loosely referred to as claims for reparation for "slavery" but it is clear that reparationists are using that expression to refer to an umbrella concept which encompasses the policy of slave-trading, acts committed during the execution of that policy (such as the horrors of the Middle Passage), the continuing deprivation of liberty and treatment of slaves after arrival in the West, and the effects of slavery on succeeding generations in the form of social and economic inequality. For ease of reference I will be referring to reparation for "slavery" and the "slave trade" interchangeably and these terms should be understood in the broader sense explained above. 7. HUGH THOMAS, THE SLAVE TRADE: THE HISTORY OF THE ATLANTIC SLAVE TRADE: 1440-1870, 805-06 (1997). During the Atlantic slave trade period alone (1440-1870), it is estimated that at least 13 million Africans were illegally transported from the shores of West Africa to the Western Hemisphere. Of those thirteen million, only an approximate number of 11,328,000 were delivered to the New World, with the result that around 1,672,000 persons died en route. 8. See Ali Mazrui Global Africa: From Abolitionists to Reparationists, 37 AFR. STUD. REV. 3 (1994). Africa, for instance, has experienced a triple heritage of slavery—indigenous, Islamic, and Western, giving rise to the possibility of multifarious inter-state claims. 9. This is one of the main contexts in which the issue of reparation for slavery was debated at the UN World Conference in Durban. Aside from the international context, various domestic claims by nationals of states against their governments for participation in slavery can likewise be envisaged. A good example of such a claim is that of the African Americans who claim reparation for slavery from the United States government. Similar claims can be envisaged by Africans against their governments/rulers for slavery perpetrated against them by predecessor governments/rulers. As a South African, for instance, I am aware that calls for reparation for slavery might be made by South African slave descendants against the South African government for the slavery that was practiced there during the early years of the nation's existence (for an historical account of slavery practice within South Africa, seeREADER'S DIGEST, ILLUSTRATED HISTORY OF SOUTH AFRICA 48-53 (3d ed. 1994); PAUL LOVEJOY, TRANSFORMATIONS IN SLAVERY: A HISTORY OF SLAVERY IN AFRICA 232-34(1983); FRANK WELSH, A HISTORY OF SOUTH AFRICA 59-61(rev. ed. 2000). However, I am not concerned here with such domestic claims directly except in so far as they provide examples and guidance for a discussion of international claims for reparation on behalf of Africa as against the West. 10. For a detailed work setting out facts and figures as regards participation in the slave trade and data as to slave exports per African region, seeLOVEJOY, supra note 9, ch. 3. Some African groups during the Atlantic slave trade period assisted the Westerners in procuring fellow Africans for slavery, seeid. at 66-87. 11. Although I express my doubts about the viability of a claim for reparation for slavery from within the current legal 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. 12. See Durban Declaration, supra note 3, art. 13. See also Tuneen Chisolm, Sweep Around Your Own Front Door: Examining the Argument for Legislative African American Reparations, 147 U. PA. L. REV. 677, 678 (1999) (describing, in the African American context, the Atlantic slave trade: "The enslavement of Africans in America from 1619 to 1865 is one of the most callous, vexatious, near-genocidal violations of human rights in world history."). 13. See, e.g., the recent class-action lawsuits filed against US companies that benefitted from the slave trade. In March 2002 Aetna Inc., CSX Corp. and FleetBoston Financial Corp. were named in a lawsuit filed in federal court in New York on behalf of a black activist. In May a second lawsuit was filed in federal court in Newark, N.J., on behalf of a former director of the National Association for the Advancement of Colored People, against New York Life Insurance Co., Wall Street investment firm Brown Brothers Harriman & Co. and Norfolk Southern Corp. See Deborah Kong, Second Lawsuit Filed Asking Reparations, WASH. TIMES, 2 May 2002, availableat http://www.washingtontimes. com/national/20020502-91603120.htm. 14. Lord Anthony Gifford, a leading advocate of reparation for slavery, writes that the enslavement of Africans was a crime against humanity such that reparation, a concept that "is firmly established and actively pursued by states, on behalf of their injured nationals, against other wrongdoing states," is due under international law principles. See Lord Anthony Gifford, The Legal Basis of the Claim for Reparations (1993) [hereinafter Legal Basis] available at http://www.arm.arc.co.uk/legalBasis.html (visited 13 Apr. 2003). 15. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 431 (3d ed. 1982). 16. Mavrommatis Palestine Concessions Case (Greece v. UK),1924 P.C.I.J. Reports (ser. A) No. 2, at 12. See also LaGrand (F.R.G. v. U.S.) I.C.J. (27 June 2001) at fl 65-74, available at http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm. 17. JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES(2002). 18. Case concerning the Factory at Chorzow, 1927 P.C.I.J. (Ser. A) No. 9, at 29. 19. See Gifford, Legal Basis, supra note 14, where he cites the Chorzow Factory Case and employs its description of reparation (as encompassing restitution and compensation) as relevant to his argument for slavery reparation. 20. I.L.C. Articles on State Responsibility, art. 34, inCRAWFORD, supra note 17. 21. Id., art. 35, at 213. 22. 1962 I.C.J. 6. 23. CRAWFORD, supra note 17, art. 35(a). 24. Id. art. 35(b). 25. D.J. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 518 (1998). 26. CRAWFORD, supra note 17, art. 36(1). 27. Id. art. 36(2). 28. Chorzow Factory Case, supra note 18, at 47. 29. CRAWFORD, supra note 17, art. 37(1). 30. Id. art. 37(2). 31. See Commentary to Article 37, I.L.C. Articles on State Responsibility inCRAWFORD, supra note 17, at 231. An illustration of satisfaction as a form of reparation is provided in Borchgrave P.C.I.J. (Ser. A/B) No. 72 (1937). In that case a Belgian national working at the Belgian Embassy in Madrid was found dead on the roadside in Spain in 1936. The court listed the reparation sought by Belgium in diplomatic proceedings with Spain as follows: In consequence, proceeding on the principles of international law relating to the responsibility of States, the Belgian Government demanded as reparation: (1) an expression of the Spanish Government's excuses and regrets; (2) transfer of the corpse to the port of embarcation with military honours; . . . (4) just punishment of the guilty. Id. at 165. 32. Id. at 231. 33. See Articles 31 and 34 and Commentary to Article 34, id. at 212. 34. Gifford, Legal Basis, supra note 14. 35. Id. 36. Lord Gifford concedes that "[h]undreds of millions of people, in different continents of the world, have an interest in this claim. Their losses may seem almost impossible to quantify." Id. 37. Many of the Western states singled out for reparation claims are a mere shadow of their former colonial selves. In any event, the dominant theory of rights would frustrate claims being brought against existing states for conduct committed by predecessor governments and over which they had no control. Seesupra, notes 17-19. 38. See Commentary to I.L.C. Articles (2001), ch. II, Attribution of Conduct to a State, in CRAWFORD, supra note 17, at 92. 39. Id., art. 13, ch. III. 40. The most common use of this doctrine is in relation to the question of title to territory. Many states acquired title to territory through conquest which was an accepted method of acquiring territory until after World War I. The inter-temporal law doctrine insists that these titles are to be judged by the law in force at the time the title was first asserted and not by the law of today. As stated by Judge Huber in the Island of Palmas case: "A juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled." U.N., R.I.A.A., Vol. II, at 829, 845 (1949). See generally, Rosalyn Higgins, Time and the Law: International Perspectives on an Old Problem, 46 INT'L & COMP. L.Q. 501 (1997). 41. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3rd Sess. (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in AM. J. INT'L L. SUPP. 127 (1949). 42. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force 3 Sept. 1953). 43. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976). All three Conventions, notes 41-43, provide that "No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed." 44. The EUR. COMM'N H.R. provides a clear statement on the subject in its decision on application 1151/61. A Belgian national, relying on article 5(5) of the EUR. COMM'N H.R., claimed compensation from the German Government for the damage caused him by the detention and death of his father in a German concentration camp in 1945. The Commission rejected his claim, pointing out that: While it is true that article 5, paragraph 5, of the Convention, relied on by the applicant, provides that "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation," the Commission has nevertheless found, on a number of occasions, that only a deprivation of liberty subsequent to the entry into force of the Convention for the respondent State can be effected "in contravention of" the aforesaid article 5 . . . ; and that the arrest and detention of the applicant's father, however blameworthy they may have been from the standpoint of morality and fairness, took place at a time when the Convention did not yet exist and to which the Contracting States have not made it retroactively applicable. COUNCIL OF EUROPE, 7 EUR. COMM'N H.R., RECUEIL DES DÉCISIONS DE LA COMMISSION EUROPÉENE DES DROITS DE L'HOMME (Strasbourg) 119 (Mar. 1962) (translation by the United Nations Secretariat). 45. The focus here is on claims for the acts associated with slavery and slave trading. However, some reparationists argue that the reparation should be sought for the crime of genocide committed against the African people by way of slavery and the slave trade, on the grounds that "the numbers involved, their inhumane handling during transhipment, and their resultant deaths . . . establish a prima facie case of genocide." Ricardo Laremont, Political Versus Legal Strategies for the African Slaverly [sic] Reparations Movement, 2 AFR. STUD. Q. 2-3 (1999), available at http://www.africa.ufl.edu/asq/v2/v2i4.htm (visited 13 Apr. 2003); see also Gifford, Legal Basis, supra note 14. Besides the fact that the crime of genocide which has developed in international criminal law would in all likelihood not be proved (genocide requires special intent to physically destroy a group in whole or in part and it seems clear that, while treatment of slaves was callous in the extreme, this special intent would be difficult to establish, not least of all because slaves were of economic value to slave traders and owners), these reparationists miss the point that genocide itself only became outlawed in international law after the Second World War. SeeNINA JORGENSEN, THE RESPONSIBILITY OF STATES FOR INTERNATIONAL CRIMES 32-35 (2000). A more powerful argument which deserves consideration by reparationists is that presented by Geraldine Van Bueren. She argues that in 1823 Britain and the United States agreed to classify the slave trade as a form of piracy. Van Bueren suggests that because piracy had been illegal under international law well before the 17th century, the agreement by the United States and Britain to regard the slave trade as a form of piracy at least from the early 19th century amounts to an expression of legal guilt. See Geraldine Van Bueren, It's Britain's Guilty Secret, GUARDIAN, 25 May 2001. This argument needs to be explored more fully by reparationists as it ostensibly allows reparation claims to be brought in international law for acts of slavery committed after 1823 by association with the crime of piracy. 46. (1825) 23 US (10 Wheat) 64, citedin Geoffrey Robertson, CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE 209(2000). 47. OPPENHEIM'S INTERNATIONAL LAW, Vol. 1, 979 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1996). 48. Id. 49. Id. 50. Robertson, supra note 46, at 209. 51. Of course, it is at least possible to argue that the doctrine of inter-temporal law fails to register the fact that international law has traditionally served the interests of the powerful. Thus, while Western states would be eager to rely on the fact that slavery was lawful in international law at the time it was practiced, it is clear that the lawfulness of that practice was determined by Western states themselves. As the critical legal studies movement has shown, law has an obfuscatory quality, always hiding the power that animates any legal rule. In the international law context, this obfuscatory quality is identified by Röling, who says that: In all positive law is hidden the element of power and the element of interest. Law is not the same as power, nor is it the same as interest, but it gives expression to the former power-relation. Law has the inclination to serve primarily the interests of the powerful. "European" international law, the traditional law of nations, makes no exception to this rule. It served the interest of prosperous nations. BERNARD VICTOR ALOYSIUS RÖLING, INTERNATIONAL LAW IN AN EXPANDED WORLD 15 (1960). It thus becomes plain that the notion of European international law provided legal concepts and systemic arguments justifying the interests of the emerging Western powers, one such interest being the procurement of slaves. Nonetheless, while one strategy of slavery reparationists might aim at subverting the doctrine of inter-temporal law along these lines, the radical nature of this strategy will meet with fierce opposition. A more plausible strategy therefore appears to be an argument based on justice and morality which seeks to achieve reparations by working outside of the existing legal framework. 52. Lord Gifford's paper preempts the Conference in its insistence that historians can show "without difficulty how the invasion of African territories, the mass capture of Africans, the horrors of the middle passage, the chattelisation of Africans in the Americas, the extermination of the language and culture of the transported Africans, constituted violations of [the international laws prohibiting crimes against humanity and genocide]." See Gifford, Legal Basis, supra note 14. 53. See I.L.C. Articles on State Responsibility, art. 13, inCRAWFORD, supra note 17. 54. SeeId., Commentary to Article 13, fl 6, at 132-33. 55. Id. 56. At best the Declaration declares a "moral" obligation on Western states to respond to the practice of slavery. In Article 102 of the Declaration the delegates affirm that "[w]e are aware of the moral obligation on the part of all concerned States and call upon these States to take appropriate and effective measures to halt and reverse the lasting consequences of those practices." See Anthony Sebok, The Hidden Legal Issues Behind the U.N. Racism Conference, FINDLAW FORUM: CNN.com, available at http://writ.news. findlaw.com/sebok/20010910.html (visited 13 Apr. 2003). Sebok argues that due to the specter of current and future reparation demands, the nations of the European Union and the United States were very concerned, going into the Conference, about the tenor and content of any discussion of the legacy of the trans-Atlantic slave trade. "They wanted to avoid a scenario where such discussion could be used to fuel more Holocaust-style litigation, leading to more multibillion dollar settlements." After the United States walked out, the European Union was left to protect its interests alone, but, Sebok points out, the eventual draft offers no apology at all. "It acknowledges" that slavery, "including the trans-Atlantic slave trade" were "appalling tragedies." Yet it does not say who was responsible for these tragedies—thus refraining from offering any confession of responsibility or blame that future plaintiffs seeking reparations could use in negotiation, court proceedings, or public statements." Id. 57. As Graham Hughes concludes (using the language of the day) in the context of the African American claims, "t is not possible to set up a viable argument for compensation payments to Negroes within the confines of existing legal theory, but there remains the question of the strength of the moral case for instituting both political and private schemes of compensatory nature." Graham Hughes, Reparations for Blacks, 43 N.Y.U. L. REV. 1063, 1064 (1968), cited in Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597, 629 n.96 (1993). 58. See Laremont, supra note 45. 59. There is a wide literature on the emerging right to democracy in international law. In particular see Thomas Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46 (1992); James Crawford, Democracy in International Law, 64 BRIT. Y.B. INT'L L. 539 (1992). SeealsoSUSAN MARKS, THE RIDDLE OF ALL CONSTITUTIONS: INTERNATIONAL LAW, DEMOCRACY AND THE CRITIQUE OF IDEOLOGY (2000). 60. See regard Elazar Barkan, Payback Time: Restitution and the Moral Economy of Nations, TIKKUN, Sept.-Oct. 1996, at 52, 58. Barkan writes about the moral economy incentive in the context of African American calls for reparation for slavery but this idea is reflected in much of the thinking of African reparationists in their struggle for reparation from the West. 61. See David Love, US Needs to Pay Reparations for Slavery, PROGRESSIVE MEDIA PROJECT, 26 Jan. 2000, available at http://www.progressive.org/mpbvlo00.htm (visited 13 Apr. 2003). This argument is most evident in the claims made by African Americans against the US government. See also the websites of the African American Reparation Action Network, available at http://www.angelfire.com/super/freedom (visited 13 Apr. 2003); the National Coalition of Blacks for Reparations in America, available at http://www.ncobra.com (visited 13 Apr. 2003), both of which list all the past claims for reparation which have been settled as an attempt to exert moral pressure for reparation for slavery. Of course, this strategy of the African Americans in their pursuit of reparation from the US government is equally appropriate to the claims made by African states as against the West. 62. Tong Yu, Reparations for Former Comfort Women of World War II, 36 HARV. INT'L L.J.528, 537 (1995). 63. Id. at 529. Beginning in 1932 and continuing through World War II, Japan established a system of military brothels called "comfort stations" throughout Asia. These comfort stations were staffed by comfort women—taken from Korea, China, the Philippines, and other Asian countries by force or deceit—who provided sexual services to Japanese soldiers. 64. Gifford, Legal Basis, supra note 14. 65. 50 U.S.C. app. § 1989-1989d (1994). 66. During World War II, all individuals of Japanese ancestry living in the United States were excluded from military zones and subject to forced relocation to detention centers pursuant to Executive Order 9066. In the 1980s a Commission was established to study the effects of Executive Order 9066 on Japanese American citizens. As a result of the Commission's finding that there were "fundamental violations of the basic civil liberties and constitutional rights" of the internees, Congress passed the Civil Liberties Act, id. The Act also provided reparation to the Aleuts, a group of civilian residents of the Pribilof and Aleutian Islands who were relocated to temporary camps in isolated regions of Alaska. 67. See Chisolm, supra note 12, at 713-15. African Americans who call for reparations for slavery draw heavily on the Civil Liberties Act in support of their claim, arguing that the Act "established a precedent for legislative compensation to a particular racial group that suffered unique injuries due to racially motivated law enforcement." Id. at 716. 68. Another way of putting the moral global economy argument is in terms of justice principles. It is clear that the moral global economy is premised on the idea of righting past injustices. For reparationists to point out the hypocrisy of Western efforts to promote human rights and democracy without contemporaneous Western acknowledgment of past injustices, is to force the West into the justice cul-de-sac, be it the libertarian theory of Robert Nozick, or the liberal theory of John Rawls. As is well known, in terms of Robert Nozick's libertarian "entitlement theory of justice" the justice of any distribution of goods depends on the history of the transaction. In other words, the justice of distributing goods is assessed not by where they end up but by how the distribution itself came about. We are to therefore look at the history of the acquisition and transfer of the goods in question: if the transactions of acquisition and transfer were freely entered into without force or fraud, then a just distribution of goods has taken place. Nozick's entitlement theory of justice thus works from a hypothetical assumption that everyone in a given society at point T is entitled to the goods they currently possess. However, writes Nozick, "[n]ot all actual situations are generated in accordance with the two principles of justice in holdings: the principle of justice in acquisition and the principle of justice in transfer. Some people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose . . ." ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 152(1974). When this occurs, Nozick accepts that the state may intervene in the rights of others to provide distributive justice. This is done in accordance with Nozick's principle of "justice in rectification." He does not elaborate on this principle, but accepts that "past injustices might be so great as to make necessary in the short run a more extensive state in order to rectify them." Id. at 231. The liberal theory of justice advanced by John Rawls would arguably also support a claim for reparation. Unlike Nozick's theory which suggests a focus on correctingthe injustices of the past, Rawls' theory is concerned with correcting existing inequalities in pursuit of what Rawls calls "justice as fairness." The inequality between the West and Africa, a legacy (whatever the measure) of slavery, places Africa and Africans in the position of "disadvantaged" members of global society. In accordance with Rawls' difference principle, such disadvantage needs to be redressed: [W]e may observe that the difference principle gives some weight to the . . . principle of redress. That is the principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for. Thus the principle holds that in order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into the less favorable social positions. . . . Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. JOHN RAWLS, A THEORY OF JUSTICE 100-01 (1971). The existing Western states that deny responsibility for the slavery committed by their predecessors find themselves nonetheless favoured by the inheritance of enviably stable and prosperous economies. These states are thus held to Rawls' principle of redress: having been so favoured, they may only continue to gain from their good fortune on terms that improve the situation of those who have lost out. Such terms must include reparation for the Africans who have been born into the less favourable positions in the world, and who have, moreover, contributed historically to the prosperity of the Western economies through the institution of slavery. See alsoDAVID JOHNSON ET AL., JURISPRUDENCE—A SOUTH AFRICAN PERSPECTIVE 187 (2001). 69. Barkan argues that if the success of the moral economy of restitution is measured "by the degree to which it enables the victims to claim a share of the economic pie, and . . . legitimize their side of history," then America cannot hope to achieve an equal society without granting reparations to African Americans. See Barkan, supra note 60, at 54. 70. Id. at 55. 71. For example, some argue that it is facile to lump claims for reparation for slavery together with claims for compensation for the Holocaust. It is true that in the 1990s the issue of historical reparation gained momentum with a series of lawsuits related to the Holocaust, but among the reasons for settlement of these claims is that Swiss banks and German businesses wanted to prevent themselves from being frozen out of the most lucrative markets in the world (notably that of the US) if they didn't settle. See Jon Silverman, Compensation for Slavery, BBC NEWS: WORLD: AMERICAS, 4 Sept. 2001, available at http://news.bbc.co.uk/2/hi/americas/1523669.stm (visited 13 Apr. 2003). While one could speculate that the financial muscle of the black community in the United States might provide similar leverage in relation to the slave trade, it is not obvious that African states have similar clout vis-à-vis the West when it comes to the issue of slavery reparations. This much is apparent from the outcome of the Durban Conference. BBC News | AMERICAS | Compensation for slavery news.bbc.co.uk 72. The idea of legitimizing a party's history—of breaking the history of silence—is a powerful theme in human rights initiatives. This theme is apparent, for instance, in the creation of The Women's International War Crimes Tribunal 2000 for the trial of Japanese Military Sexual Slavery, established in response to Japan's continuing failure to prosecute, apologize, and provide reparation for Japan's military institutionalization of rape, sexual slavery, trafficking, torture, and other forms of sexual violence against Asian "comfort women." One of the reasons for constituting the Tribunal was "out of the conviction that these failures must not be allowed to silence the voices of the survivors," its power, "like so many human rights initiatives, [lying] in its capacity to examine the evidence and develop an enduring historical record." See the summary of findings of the Tribunal in the matter of The Prosecutors and the Peoples of the Asia-Pacific Region v. Emperor Hirohito et al. and the Government of Japan, fl 5, 12 Dec. 2000, available at www.jca.apc.org/vaww-net-japan/e_new/judgement.html. 73. It is significant that the Durban Declaration, supra note 3, art. 102, registers, albeit obliquely, the "moral" obligation on Western states to respond to the practices of the past. 74. 70 F.3d 1103, 1110-11 (9th Cir. 1995), cited in Chisolm, supra note 12, at 709. 75. Chisolm, supra note 12, at 710, drawing on the work of Verdun, supra note 52, at 597. 76. Verdun, supra note 57, at 622. 77. Chisolm, supra note 12, at 712. 78. SeeBROWNLIE, supra note 15, 436. 79. Verdun, supra note 57, at 625. 80. Id. at 631. 81. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV.323, 376 (1987). 82. For instance, Lord Gifford argues that "[t]he details of reparations settlement would have to be negotiated with an appropriate body of representatives of African people around the world." Lord Gifford, House of Lords debate on reparations for slavery, 14 Mar. 1996 (Hansard) [hereinafter House of Lords] available at http://www.arm.arc.co.uk./LordsHansard.html (visited 13 Apr. 2003). 83. See Reports of Preparatory Meetings and Activities at the International, Regional and National Levels, Report of the Regional Conference for Africa (Dakar, 22-24 Jan. 2001), available at http://www.un.org/WCAR (visited 13 Apr. 2003) [hereinafter Reports of Preparatory Meetings]. World Conference on Racism un.org 84. Verdun, supra note 57, at 636. 85. Id. 638-39. Similar thinking is evidenced in a Human Rights Watch Report, prepared in anticipation of the Durban Conference and in connection with African American claims for reparation. The relevant passage reads: [W]e recognize that to hold [governments] responsible for past crimes is, as a practical matter, to hold today's citizens or taxpayers responsible. We believe this attribution of responsibility can be justified by reference to the economic benefits that these countries derived from, say, slavery or abusive colonialism—benefits that presumably helped to jumpstart their industrialization and thus continue to the present. We note that this rationale would apply even to immigrants who arrived in a beneficiary country after these abusive practices ended, since they, too, presumably have benefited from the advanced economy they joined. SeeHUMAN RIGHTS WATCH, AN APPROACH TO REPARATIONS 19 July 2001, available at http://www.hrwatch.org (visited 13 Apr. 2003). 86. Gifford, Legal Basis, supra note 14. 87. Jim Marketti, Black Equity in the Slave Industry, 2 REV. BLACK POL. ECON. 43, 43-44 (1972)and the other sources quoted in Verdun, supra note 57, at 631-32 & n.99. 88. Note the comments of Gifford, Legal Basis, supra note 14, where he takes for granted that Historians will advise as to which countries have profited most from slavery and the slave trade. The major European maritime trading nations and colonisers can be easily identified. So can the United States, as a country which grew rich on slave labour and the exploitation of African Americans. In the African American context, seeRANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES BLACKS(2000), and the other sources referred to in Tara Mack, Payback Time, GUARDIAN, 11 Aug. 2001. 89. As is conceded by Chisolm, "[t]he inequalities between blacks and whites . . . often manifest themselves, and are therefore expressed, in terms that do not clearly relate back to slavery and the ensuing discrimination." Chisolm, supra note 12, at 687. 90. See Durban Declaration, supra note 3, art. 13. After acknowledging that slavery and the slave trade "were appalling tragedies" the article states that these acts "are among the major sources and manifestations of [existing] racism . . . and that Africans and people of African descent, Asians and people of Asian descent and indigenous peoples were victims of these acts and continue to be victims of their consequences." 91. MELVIN OLIVER & THOMAS SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 12-13 (1995), quoted in Chisolm, supra note 12, at 687. See also the charged assertion by Mazrui that "[t]he consequences of slavery in the United States did not end with the Emancipation Proclamation of 1863, but continue today in the disproportionate black presence in American jails, the disproportionate black infant mortality rates, the disproportionate self-destructive juvenile black violence. The damage of the past is in the present. The black community is chained to the bondage of its own tragic history." Mazrui, supra note 8, at 9. The same premise is evident in the report by Human Rights Watch, supra note 85, prepared in anticipation of the Durban Conference in connection with African American claims for reparation. The report states that "we would accept that most African-Americans continue to suffer the effects of slavery in the United States," and accordingly proposes that studies be undertaken to "reveal the extent to which a government's past practices contribute to contemporary economic and social deprivation, educate the public about this continuing effect, acknowledge responsibility for it, and propose methods for rectifying these effects and making amends." Id. at 2. 92. Gifford, House of Lords, supra note 82. In different words, Verdun writes that the injury amounts to a "presumption of inferiority, devaluation of self-esteem, and other emotional injuries, pain, and suffering, that resulted from the institution of slavery." See Verdun, supra note 52, at 631-32. 93. See Mazrui, supra note 8, at 8. How the permanent African seat would be occupied on the Security Council is something that Mazrui suggests will have to be worked out between the UN and the OAU. For instance, the seat could rotate between East, West, Southern, Northern and Central Africa over a period to be agreed upon. Id. at 16. 94. In the African American context, see Chisolm, supra note 12, at 689-702, for an analysis of the link between slavery in the United States and existing manifestations of racial discrimination. In the international context, the delegates at the Durban Conference have acknowledged this link obliquely. The Durban Declaration, supra note 3, art. 158 provides that states recognize "that these historical injustices [slavery, colonialism, genocide, apartheid] have undeniably contributed to the poverty, underdevelopment, marginalization, social exclusion, economic disparities, instability and insecurity that affect many people in different parts of the world, in particular in developing countries." 95. See Verdun, supra note 57, at 633-34, who draws on the work of Charles Lawrence to argue that the origins of racism were in rational and premeditated acts such as slavery. Lawrence writes that: Racism is in large part a product of the unconscious. It is a set of beliefs whereby we irrationally attach significance to something called race. I do not mean to imply that racism does not have its origins in the rational and premeditated acts of those who sought and seek property and power. . . . It is a part of our common historical experience and, therefore, part of our culture. It arises from the assumptions we have learned to make about the world, ourselves, and others as well as from the patterns of our fundamental social activities. . . . It is a malady that we all share, because we have all been scarred by a common history. Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330 (1987). 96. While the assertion of these reparation claims would take place outside of the legal context of the I.L.C. Articles, reparationists can nonetheless profit from the articles' suggestion that the different forms of reparation are to be pursued with the goal of achieving "full reparation" for the wrong committed. Seesupra text accompanying note 9. 97. Gifford, House of Lords, supra note 82. 98. Durban Declaration, supra note 3, art. 158. 99. Id. 100. MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS 104 (1998). 101. Id. 102. I.L.C. Articles on State Responsibility inCRAWFORD, supra note 17, art. 36(2). 103. Id. 104. As Chisolm notes: "It is simply unrealistic to think that relief from the effects of deep-rooted iniquities and discrimination can be resolved by a lump sum payment." Chisolm, supra note 12, at 723. Jay Parker, Founder and President of the Lincoln Institute for Research and Education expresses similar sentiments, arguing that "[n]o amount of restitution can make up for slavery or somehow cure imperfect race relations in America." See Julie Foster, Slavery Reparations Lawsuit Brewing, WORLDNETDAILY, 23 Jan. 2001. 105. Gifford, Legal Basis, supra note 14. 106. South Africa is a prime example. While South Africa may feasiblely have a legitimate call for reparation for colonization, it is difficult to see how it could make a similar claim in respect of slavery. Few, if any, of its people were exploited during the Atlantic slave trade. 107. Verdun, supra note 57, at 658. 108. Id. 109. A uniform amount of $20,000 was paid to individuals of Japanese ancestry who were interned. 110. Gifford, Legal Basis, supra note 14. 111. HUMAN RIGHTS WATCH, supra note 85, at 1. 112. Id. 113. See, e.g., BBC News, World: Africa, Trillions Demanded in Slavery Reparations, 20 Aug. 1999 (reporting the excessive and arbitrary amount called for by a group describing themselves as "The African World Reparations and Repatriation Truth Commission." They recently demanded $777 thousand billion to be paid within five years by Western governments as compensation for slavery. The figure was reportedly arrived at on the basis of the number of lives lost to Africa during the slave-trade, as well as an assessment of the worth of the gold, diamonds and other minerals taken from the continent during colonial rule.) available at http://news.bbc.co.uk/2/hi/africa/424984.stm (visited 13 Apr. 2003). BBC News | Africa | Trillions demanded in slavery reparations news.bbc.co.uk It is quite clear that such risible claims do the reparation movement far more damage than good, and simply fuel an unfortunate but understandable reticence on the part of governments to address the issue of compensatory reparation. 114. A right to development has been identified in international law as a controversial, but important example of a claimed "solidarity" human right. Crawford suggests that the following assessment of the right to development by Umozurike appears to be the most balanced: The right to development . . . appears not to have attained the definitive status of rule of law despite its powerful advocates. Its inclusion in the African Charter will be as effective as the Charter itself. The negative duty not to impede the development of States may go down well; the positive duty to aid such development, in the absence of specific accords, is a higher level of commitment that still rests on nonlegal considerations. U.O. Umozurike, 77 AM. J. INT'L L. 902, 907 (1983) quoted inTHE RIGHTS OF PEOPLES 66 (Crawford ed., 1988). See also Bedjaoui, Some Unorthodox Reflections on the Right to Development, inINTERNATIONAL LAW OF DEVELOPMENT: COMPARATIVE PERSPECTIVES (Snyder & Slinn eds., 1987). 115. It is of course not impossible to imagine that compensation which is paid with the aim of correcting a past injustice committed against someone's ancestor, at the same time achieves economic justice for that person because she continues to suffer the effects of the slavery perpetrated against her ancestor, perhaps through lack of means or poor schooling, etc. However, this overlap of achievements is not guaranteed. A focus exclusively on righting past wrongs could all too easily "deliver what might look like windfalls to people who assert vicarious claims to reparations but have suffered no harm themselves." SeeHUMAN RIGHTS WATCH REPORT, supra note 80, at 2. It is for this reason that I propose an approach that focuses on contemporary effects of slavery as manifested in inequality between states. 116. Mazrui, supra note 8, at 5. 117. The Senegalese President Abdoulaye Wade has articulated the ideas I mention here by reference to what he considers to be a "Marshall Plan" for Africa, or what President Mbeki sees as "The New African Initiative." Such a plan is intended to mitigate the scourge of slavery and its devastating and lingering effect on the continent. See Ofeibea Quist-Arcton, Slavery Issue Struggles to Get a Hearing in Durban, ALLAFRICA.COM, 4 Sept. 2001, available at http://allafrica.com/stories/200109040564.html; seealso the views of Abe Ajayi, Unfinished Business: Confronting the Legacies of Slavery and Colonialism in Africa, available at http://www.african-century.com/acphp/ac_show_article.php?path=ajayi_reparations (visited 13 Apr. 2003). 118. See Barkan, supra note 60 and accompanying text. 119. President Thabo Mbeki, Address at the National Summit of Unity and Reconciliation, Rwanda, 18 Oct. 2000, available at http://www.polity.org.za/html/govdocs/speeches/2000/sp1018a.html (visited 13 Apr. 2003). 120. See supra note 117. 121. SeeHUMAN RIGHTS WATCH, supra note 85, at 4. As the report points out, a focus on economic and social rights provides greater urgency than traditional reparation claims because it asks us to "rectify today's injustices rather than yesterday's." 122. Id. 123. Mazrui, supra note 8, at 7. 124. Id. 125. See Reports of Preparatory Meetings and Activities, supra note 83. The Durban Declaration, supra note 3, art. 2 provides that: An International Compensation Scheme should be set up for victims of the slave trade, as well as victims of any other transnational racist policies and acts, in addition to the national funds or any equivalent national mechanisms aimed at fulfilling the right to compensation. 126. Durban Declaration, supra note 3, art. 158. 127. Nancy Mathis, President Acknowledges U.S. "Sins" Against Africa, HOUSTON CHRON., 25 Mar. 1998, cited in Chisolm, supra note 12, at 704 n.160. 128. Gifford, House of Lords, supra note 82. 129. Draft Declaration of the African Preparatory Meeting for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, arts. 17-18, as adopted by the Ambassadorial meeting on 8 Dec. 2000. 130. Countries should be Ready to Discuss Compensation for Slavery—Dlamini-Zuma, REUTERS, 23 Mar. 2001. The Durban Declaration, however, equivocates on the "apology" which the states delegates offer, see supra note 51. 131. MINOW, supra note 95, at 116. 132. Id. 133. Durban Declaration, supra note 3, art. 118; seealso art. 119 which Invites States and relevant international organizations and non-governmental organizations to build upon the efforts of the Slave Route Project of the United Nations Educational Scientific and Cultural Organization and its theme of "Breaking the silence" by developing texts and testimony, slavery multi-media centres and/or programs that will collect, record, organize, exhibit and publish the existing data relevant to the history of slavery and the trans-Atlantic, Mediterranean and Indian Ocean slave trades, paying particular attention to the thoughts and actions of the victims of slavery and the slave trade, in their quest for freedom and justice. 134. Chinweizu, Reparations and A New Global Order: A Comparative Overview, Paper Read at the second Plenary Session of the First Pan-African Conference on Reparations, Abuja, Nigeria (27 Apr. 1993), available at http://www.arm.arc.co.uk/NewGlobalOrder.html (visited 13 Apr. 2003). 135. Chisolm, supra note 12, at 723, makes a similar point with regard to the African Americans and their presence as a driving force behind the success of the capitalist foundation of the United States. 136. Gifford, Legal Basis, supra note 14. 137. Durban Declaration, supra note 3, art. 14. 138. Id. 139. See I.L.C. Articles on State Responsibility, art. 13 (2001), in CRAWFORD, supra note 17. See also arts. 9-13. 140. ANTHONY GIDDENS, SOCIOLOGY 54 (2d ed. 1993). 141. Mazrui, supra note 8, at 9. 142. JOHN DUGARD, INTERNATIONAL LAW—A SOUTH AFRICAN PERSPECTIVE 85(2d ed. 2000). 143. Id. at 86. Resolution 1514(XV), by ninety votes to none with nine abstentions. 144. See1971 I.C.J. 16, at 31. 145. See 1975 I.C.J. 12, at 31. 146. See 1995 I.C.J. 90, at 102. 147. Id. at 105-6. Seegenerally Malcolm Shaw, Peoples, Territorialism and Boundaries, 3 EUR. J. INT'L L. 478, 480 (1997). 148. SeeHARRIS, supra note24, at113. 149. Giddens, supra note 140, at 542. The argument is sometimes made, however, that colonialism, while bringing material and psychological suffering for the subject people, also resulted in material gains, direct and indirect, intended or not, for the colonized people. See, e.g., DAVID LANDES, THE WEALTH AND POVERTY OF NATIONS(1999). Nonetheless, whatever material gain may have accrued for the victims of colonization, there are at least two immediately obvious bases on which reparations could be founded. First is that the colonial states left many of their former colonies ill-prepared for self-governance. From a moral or political perspective, the colonial states might well be said to have incurred an obligation to do more than just stop exercising that power, but to proactively make suitable provision for the foreseeable consequences of their past acts. Secondly, even if the colonial powers provided a net economic benefit to some colonies, they did so against the colonized peoples' will. This is a consequence of the recognition that colonialism breached the right of self-determination in that the colonizers over-rode the rights of the colonized to self-determine their own economic, social and cultural futures. (I am grateful to Michael Osborne of the Cape Bar and Steve Ellmann at New York Law School for raising these points with me.) 150. SeeHUMAN RIGHTS WATCH, supra note 85, at 5. 151. Van Bueren, supra note 45.