Historical Reparations: In international Legal Fantasy?

By Ana Margarita González*

 

Last week, the countries that make up the Caribbean Community, or Caricom, made a formal request for an official meeting with the governments of England, France, and Holland, in order to discuss an agreement regarding historical reparations and compensation for countries involved in colonial domination and the slave trade in Caribbean islands. The governments involved stated that if this meeting was not held, they would file a complaint before the International Court of Justice, and would bring the case before the United Nations General Assembly during its meeting in September.

The proposal began toward the end of 2013 when the governments of fifteen Caribbean countries formed a Reparations Commission that began preparing a case regarding the crimes against humanity committed against Africans and their descendants during the colonial dominion: genocide, slavery, racial segregation and their lingering effects. The reparation plan proposes assistance programs for development of education and health, as well as formal apologies from the European countries involved in the trans-Atlantic slave trade. Although there seem to be few possibilities that such a case would be successful before the International Court of Justice, the claim could create a public debate if the petition is brought before the United Nations.

The topic of historical reparations is not new in Latin America and the Caribbean; some supporters of affirmative action policies as a measure of reparation have approached the discussion regarding the duty, both legal as well as moral and political, of States to repair historical injustices. In the case of countries such as Brazil and Colombia, social movements have defended the argument that the duty to repair extends to acts recognized as crimes against humanity, such as slavery and the subjugation and extermination of indigenous peoples, among others.

Interest in reparations grew after the World Conference against Racism, held in Durban in 2001, explicitly recognized the correlation between nations that were victims of slavery and those that are currently affected by poverty, economic inequality, and social exclusion of of African ancestry, and called for States to “develop policies of reparation to overcome current situations of inequality of racial and ethnic groups that have been historically discriminated against.”

In spite of the arguments of many critics who consider that the Durban Declaration was nothing more than an opportunity for States to adopt moral stances and that the claims of Caribbbean States are a mere “international legal fantasy,” recently the international community has demonstrated interest in the legal and political debate regarding the viability of historical reparations and their implementation. Therefore, it is necessary to answer two questions: could such a claim be successful at a political, if not a legal, level? If historical reparations are approved or discussed, how would they be implemented?

In international law there is a consensus regarding the duty to repair relatively recent atrocious human rights violations, where there are still victims, their direct family members, or victimizers alive. Nonetheless, the passage of time complicates the duty to repair in the case of historical injustices, as it is necessary to determine the legal reach and dimension of reparations. Documenting historical acts, identifying victims, demonstrating that these victims still suffer the consequences of the long-past injustice, and establishing a reasonable causal relationship between the crime or historical injustice and the current situation of the victim are all difficult, but necessary, tasks. These are also the tasks that the Reparation Commissions of countries such as Jamaica and Antigua and Barbuda have begun.

On the other hand, in cases such as reparations for Caribbean countries, it is important to distinguish forms of individual and historical and collective reparations. Harms of such an extent and magnitude have been caused that it is difficult to estimate the value of an eventual pecuniary compensation, and the measures that should be taken to situate victims in a state of equality cannot be replaced with a specific monetary compensation. As the Caricom reparations plan proposes, the measures should be structural in nature in order to overcome situations of marginalization of Afro-descendants, such as plans to eradicate illiteracy or massive plans to improve health and education services.

Finally, there is also a moral duty of symbolic recognition that goes beyond material damage that this type of claim involves. In the Caribbean region this issue has sparked an academic debate with political implications regarding reparations with the power to alter the historical narrative of the region and reformulate the economic analysis tied to future socioeconomic development challenges with the importance of restorative justice. Demands for reparations possess an enormous moral authority, as the responsibility of European states in the creation and maintenance of the institution of slavery is undeniable. Thus, perhaps putting the discussion of historical debts of European countries, beyond profound remorse and an apology, is not so unrealistic or unattainable.

 

* Ana Margarita González is a researcher at the Center for the Study of Law, Justice, and Society (Dejusticia)

Photo credit: Tyler Merbler