In March, the United Nations General Assembly adopted a historic resolution condemning chattel enslavement and the trade in enslaved people. The legally non-binding resolution recognizes the enduring legacies of chattel enslavement and the trade on African descendent peoples. Ghana sponsored the resolution, securing 123 supportive votes. Argentina, Israel, and the United States voted against the resolution, however. Significantly, 52 countries abstained, including Canada, Australia, the United Kingdom, and all European Union member States.
The EU and others criticized the General Assembly resolution for implying “a hierarchy among atrocity crimes” because the resolution denounces chattel enslavement and the slave trade,
as the gravest crime against humanity by reason of the definitive break in world history, scale, duration, systemic nature, brutality and enduring consequences that continue to structure the lives of all people through racialized regimes of labour, property and capital.
The EU’s and others’ objections to the resolution are self-protective efforts to thwart the progressive development of international law. They are also only the latest example of countries in the Global North standing in the way of efforts to remedy the harm from chattel enslavement of Africans. It is past time to move beyond global recognition of the wrongfulness of chattel enslavement and trading in enslaved people, toward much-needed repair. The U.N. resolution is a delayed step toward this reckoning.
Early Claims for Reparations
Reparations claims for chattel enslavement and the trade in African peoples have a long and sordid history. Significantly, Haiti’s 1791-1804 revolution against France mounted an early challenge to racial subordination and colonialism in the Atlantic world. Haiti’s permanent destruction of enslavement occurred before most of its contemporaries and prior to international action on abolition. The country’s 1801 constitution asserts, “There cannot exist slaves on this territory, servitude is therein forever abolished. All men are born, live and die free.” Markedly, the 1804 Haitian Constitution did not merely abolish enslavement, it envisioned reparations, where “All property which formerly belonged to any white Frenchmen, is incontestably and of right confiscated to the use of the state.”
Instead in 1825, with the specter of a renewed war with France looming, Haiti agreed to pay reparations to France, “the sum of 150,000,000 francs, destined to indemnify the former colonists.” Haiti immediately had to borrow 30 million francs from French banks because the amount agreed to constituted more than ten times the country’s budget. It soon defaulted, saddled with odious debt for years, and never realized its reparative vision to materially remedy the harm from chattel enslavement and colonialism, nor their legacies that compound into the present. More than two centuries after imposing this “independence ransom” on the first nation to permanently free themselves from chattel enslavement, France has continued to refuse to pay Haitians the reparations they are owed.
Legality of Reparations
One of the central arguments against reparations centers on the illegality of retroactive application of laws. In international law, this operates under the intertemporal principle, which provides that international disputes should be resolved based on the international law governing at the time of the disputed events. European States expressed concern with the recent General Assembly resolution because they contend that chattel enslavement, and the trade in enslaved people, was not illegal under international law at the time it was practiced. They provided this as the rationale for abstaining from voting on the resolution. Ambassador Dan Negrea of the United States also referenced the intertemporal principle when explaining the United States’ rejection of the resolution. Such objections effectively attempt to render irremediable chattel enslavement and the transatlantic trade in enslaved African peoples by enshrining what the powerful enacted into law and leaving African descendants and other peoples at the margins, notwithstanding the fundamentally oppressive and unfair process of international law-making historically.
However, the purpose of the intertemporal principle at its core is about providing notice. If an actor has reason to know something is illegal, they can and have been held accountable for it. For instance, international actors have applied new international laws where circumstances warrant them. For example, when the Allied Powers established the Nuremberg Tribunal in the aftermath of the Second World War, they created crimes against peace and crimes against humanity, which were not previously recognized under international law. Defendants challenged their prosecutions, but the Tribunal found the non-retroactive principle of laws was inapplicable considering the obvious wrongfulness of the acts in question. The Nuremberg trials demonstrate that there are exceptions to the intertemporal principle. Procedural protections are usually heightened during criminal legal proceedings, and even still, the intertemporal principle was not dispositive. The intertemporal principle serving as a legal barrier to reparations is even less convincing in the context of determining State responsibility for chattel enslavement and the trade in African peoples. Indeed, the Institute of International Law has made clear that, States “have the power to determine by common consent the temporal sphere of application of norms,” notwithstanding the intertemporal principle. Accordingly, States pointing to the intertemporal principle as a legal barrier to reparations are disingenuous.
Illegality of Chattel Enslavement
Certainly, arguments based on chattel slavery and the trade’s purported legality at the time require discounting contrary claims, laws, and systems of governance. Crucially, the enslaved and formerly enslaved recognized the illegality of chattel enslavement and the trade in enslaved people and claimed freedom as a right. For instance, in the first issue of the Gazette Officielle de l’état d‘Hayti on May 7, 1807, then-editor Juste Chanlatte decried chattel enslavement as “ferocious” and chastised those “who dared to teach others to tolerate such a crime against humanity!” Enslaved and formerly enslaved people organized individually and collectively early and often, and resisted chattel slavery and the trade in African peoples’ legal and material racial subordination and demanded their emancipation. Such resistance occurred from the moment of Portuguese contact with Africans in the 1440s, from some African polities, and onboard enslaving ships. Additionally, maroon communities of self-emancipated people, built freedom from chattel enslavement for themselves in places like Brazil. Freedom-claiming and making against chattel enslavement and the trade in African peoples took place across the Atlantic World – in North America, the Caribbean, and South America.
Furthermore, claims about the legality of chattel enslavement and the trade in African peoples ring hollow when States in the Global North selectively recognized “territorial claims to sovereignty,” to further their imperial aims. They excluded many African State formations and polities from international law governance, which effectively formally limited African peoples from partaking in much of Western international law-making. African and African descendent peoples were denied representation in international law governance while enslaved, subordinated in colonies, and/or under racial apartheid. Moreover, even as superficially equal nations post-colonialism, geopolitical realities have meant that many States of majority African descendants and other countries in the Global South could not easily change international law to reflect their reparative priorities.
Enslaving States perpetuated chattel enslavement and trading in people for centuries with minimal legal constraints. Then, instead of prioritizing Haitians and other African descendants’ visions of reckoning and repair for chattel enslavement and the trade in enslaved people, international action consisted of legal recognition without substantive remedy. For instance, some European States belatedly moved to suppress enslavement and adopted a Declaration Relative to the Universal Abolition of the Slave Trade in 1815 at the Congress of Vienna. They proclaimed trade in enslaved people as “repugnant to the principles of humanity and universal morality,” notwithstanding many of their robust participation in it.
By 1926, more States condemned enslavement through the Slavery Convention and called for “the complete abolition of slavery in all its forms.” The Convention will mark its centennial in September but is noticeably silent on the issue of reparations. Even the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery is muted on remedy. Similar omissions are reflected in international human rights law’s foundational instruments from the 1948 Universal Declaration of Human Rights to the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights.
Notably, newly independent countries, such as Sierra Leone and Mali, championed the idea of some international norms being absolute and permitting no deviation during the Vienna Convention on the Law of Treaties in 1968. They lobbied for the adoption of peremptory international norms as a vehicle to condemn imperial practices and chattel enslavement. Yet, France and other States in the Global North objected to the introduction of hierarchy amongst erstwhile horizontal international norms. Yet, by 1962, international courts had already recognized that the prohibition against chattel enslavement, and the trade in enslaved people was one of international law’s absolute norms from which States cannot derogate. The EU member States’ and others’ current objections to the recent General Assembly resolution are reminiscent of these past debates. Surfacing how some of the same countries even opposed the development of any hierarchical norms in international law in the past helps to contextualize their current positions on reparations.
Contemporary Global Movement for Reparations
A contemporary global reparatory justice movement emerged to challenge the racially unjust status quo. By the 1990s, several international institutions began to prominently place reparative justice on their agendas. For instance, in April 1993, the Commission for Reparations of the Organization of African Unity (the predecessor organization to the African Union) held the first Pan-African conference on reparatory justice in Abuja, Nigeria. It resulted in the Abuja Declaration, which urged countries “enriched by slavery and the slave trade to give total relief from Foreign Debt, and allow the debtor countries of the Diaspora to become free for self-development and from immediate and direct economic domination.” Subsequently in 2001, States convened for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. They issued the Durban Declaration which concluded that, “slavery and the slave trade are a crime against humanity, and should have always been so,” echoing the claims of Haitians centuries earlier. Additionally, in 2013, the Caribbean Community and Common Market formed a Reparations Commission, which elaborated a 10-point plan for reparative justice. It calls for a formal apology from the governments of Europe, asserts that Europe has a responsibility to contribute to public health and education expenditures due to the harms engendered by the legacies of chattel enslavement, colonialism, and apartheid, and stresses the need for psychological rehabilitation, technology transfer, as well as debt cancellation amongst other measures.
By late 2024, the Committee on the Elimination of Racial Discrimination (CERD), which is the monitoring body for the 1965 treaty dedicated to eliminating all forms of racial discrimination, began seeking input to formulate a draft general recommendation on what States obligations were to make reparations for the historical injustices caused by the chattel enslavement of Africans and the subsequent harms inflicted upon peoples of African descent. The Committee’s work is vital in this space as the General Assembly’s 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation does not specifically reckon with chattel enslavement, the trade in enslaved persons, or their detrimental vestiges.
CERD’s first draft general recommendation on reparations emphasizes that there are ongoing harms related to chattel slavery and the trade in African peoples, and that the present manifestations of these harms must be addressed and remedied as a matter of human rights law. In addition, CERD’s draft general recommendation clarifies that:
Contrary to the claims of States engaged in those practices, sufficient evidence exists that, at the time of perpetration, the transatlantic slave trade and chattel enslavement were not considered lawful under national law in most of Europe, and religious laws for those states under papal authority. Nor could they be considered lawful under general principles of customary law recognized in the European slave trading and enslaving nations” (internal citations omitted).
Indeed, some legal scholars convincingly demonstrate using comparative analysis, that chattel slavery and the trade in enslaved people was illegal from inception due to the unfettered ownership rights granted, which profoundly differed from other practices of slavery globally, such that it violated the general principles of international law.
Conclusion
The recent U.N. General Assembly resolution fittingly recognizes chattel enslavement, the trade in enslaved Africans, and their afterlives as “world-making.” Over a span of 400 years, enslaving nations forcibly transported some 12.5 million Africans across the Atlantic, resulting in the largest involuntary migration in human history. Approximately 10.7 million survived the Middle Passage, creating sizeable communities of people of African descent across many nations. Their lives and their descendants’ lives were fundamentally altered by the ensuing and continuing harms of the trade in African peoples and chattel enslavement, which also impoverished the African continent of its most precious resource. Continuing to permit enslaving States to benefit from their unjust enrichment from trading in African peoples and chattel enslavement, further entrenches racial subordination.
Reparations are overdue. International law needs to move beyond legal recognition of the wrongfulness of chattel enslavement and the trade in enslaved people, toward repair and remedy. The General Assembly resolution represents a notable step in naming, shaming, and moving toward global racial justice, to redress the immensely inequitable material realities defined by chattel enslavement, the trade of enslaved people, and their enduring legacies on African descendants.
