Caribbean countries unlikely to see slave-trade reparations from Europe

A coalition of Caribbean nations is threatening to sue 11 European countries over the lingering effects of the Atlantic slave trade. But while they have a slim chance of seeing reparations granted in court, they could gain political leverage by elevating the issue at the United Nations. The controversial move could have widespread repercussions for countries that facilitated the slave trade — and benefits for those who suffered from it.

The 15 countries bringing the lawsuit are pressuring governments that participated in the slave trade, including those of the United Kingdom, the Netherlands and France, to come to the negotiating table with the aim of agreeing on what they believe to be fair restitution. But the nations say they are not looking to be compensated for slavery itself — rather, they are contending that the present-day underdevelopment of the Caribbean islands is a result of the lasting legacy of the slavery trade, and they are attempting to claim benefits for present-day injustice, rather than historical suffering.

By making the lawsuit about current conditions that result from a past grievance, the members of The Caribbean Community (Caricom), which includes St. Vincent and the Grenadines, Barbados, Suriname and Grenada, are attempting to skirt the issue that treaties and conventions are not intended to be applied retroactively. If they were, it would prevent any country with an even slightly seedy past from signing on to human rights statutes — and have a chilling effect on diplomacy in general.

David Standard, the head of media relations at Leigh Day, the law firm representing Caricom, said the reparations the countries demand will likely include assistance with the development of better educational and health programs — two underdeveloped spheres in many Caribbean nations — and a slavery museum.

“This was one of the most heinous periods of mankind. France, the Netherlands, Britain all massively benefited through the course of this time. It was built on the backs of the slavery trade. While one fully understands that these countries are not doing as well as they once were, at the same time, in the end if you have a debt due, you have a debt due,” he said.

Prime Minister of Saint Vincent and the Grenadines Ralph Gonsalves, who is the current head of Caricom and leading the push for reparations, said in the speech to the U.N. General Assembly in September that the European nations must pay for their dark past in the region.

“The awful legacy of these crimes against humanity — a legacy which exists today in our Caribbean — ought to be repaired for the developmental benefits of our Caribbean societies and all our people,” he said. “The European nations must partner in a focused, especial way with us to execute this repairing.”

A representative of Britain’s Foreign and Commonwealth Office said, “Slavery was and is abhorrent. ... The U.K. unreservedly condemns slavery and is committed to eliminating it. We do not see reparations as the answer. Instead, we should concentrate on identifying ways forward with a focus on the shared global challenges that face our countries in the twenty-first century.”

Requests for comment from the French and Netherlands missions to the U.N., as well as Caricom, were not returned by time of publication.

If the European nations won’t negotiate with Caricom, the coalition and its lawyers say they will take the U.K., France, the Netherlands, Spain, Portugal, Denmark, Norway and Sweden to the U.N. International Court of Justice (ICJ).

A positive outcome for the Caribbean states isn't likely, however. Persuading the European nations to pay reparations won’t be easy, as none of the financially strapped countries will want to see a precedent set under which they could be expected to compensate all of the nations they exploited in colonial times. And if the case goes to the ICJ, it would be surprising to see the court back the Caribbean states for several reasons. 

The ICJ’s jurisdiction only goes as far as countries have permitted. Seventy countries have made declarations recognizing the jurisdiction for the ICJ as “compulsory.” France is not one of them. Many of the other European nations have signed on with caveats — The Netherlands, for instance, although it signed on to the ICJ in 1956, does not recognize court judgments on disputes dating prior to 1921. The U.K., for its part, does not recognize the ICJ’s jurisdiction in disputes before 1974. Both dates are well after the early 19th-century end of slavery in the Caribbean.

Even if the nations that may be sued hadn’t imposed start dates on their allegiance to the ICJ’s decisions, the court does not normally try historical cases, and treaties such as the discrimination and slavery conventions were also not intended to be retroactive, according to Ingrid Wuerth, an international law professor at Vanderbilt University.

"This case, re-litigating something from the 19th or 18th century, would be entirely new for the court," she said.

Wuerth said that the 15-judge court, which is not required to take up cases, is unlikely to change how it deals with historical injustices.

“There's a wide variety of views among the judges on the ICJ, so I couldn't speak for all of them. As a group, I think it's very unlikely that they will want to take this up,” she said.

That leaves it up to Caricom’s law firm Leigh Day to prove that the underdevelopment of the Caribbean nations today is a direct result of the slave trade. Robert Westley, a professor at Tulane University and an expert on the issue of reparations, thinks that the argument holds water.

Speaking about the impact of the slave trade in all of the New World, Westley said, “If you look just at measures of just well-being in racial comparison, not just the racial wealth gap, but if you look at employment, if you look at access to things like medical care, or if you look at rates of imprisonment, if you look at poverty rates — almost every measure of well-being in society — there is a racial disparity. And those disparities are clearly an outcome of historical forces. They didn't just happen that way.”

Westley, who supports reparations, said that time has only widened the disparity in quality of life between those whose ancestors benefited from slavery and those who were victims of the practice.

“These claims have been denied for so long that some people have the perspective that time has essentially eliminated the validity of the claims — and of course, on the other side, reparations activists have the perspective that time has only compounded the damage that’s been done by ignoring the claims,” he said. 

Wuerth and Westley agreed that although the odds seem slim that the ICJ will take up the case — or find in favor of Caricom and set a precedent that could result in dozens of countries suing the already squeezed European nations — it could create political leverage that could ultimately benefit Caricom outside of the courtroom.

Westley said that he doubts such reparations will happen anytime soon — but that an attempt like this, to force the hand of former colonizers, may be a way for the Caribbean nations to get those that historically exploited them to the negotiating table.

The ICJ requires that parties first attempt to negotiate a settlement out of court before it will agree to hear a case.

“If reparations are actually to happen I don't believe it’s going to be the outcome of a judicial process. It’s going to be perhaps the outcome of using a judicial process as leverage in a political process,” Westley said. “Ultimately, the only thing a judicial process can do is give one or the other side leverage in a discussion that they have to have outside of the courts.”

In addition to the ICJ deciding to hear a case based on the merit of an application from the allegedly wronged party, the court can be pressured by the U.N. General Assembly to make “advisory” opinions, which are not legally binding but carry heavy political influence.

Richard Gowan, a U.N. expert at New York University's Center on International Cooperation, said that advisory opinions can also be used to “bury an issue” with a vague decision that leaves all satisfied and puts off the real decision to be brought up at a later date.

It’s difficult to say if the U.N. General Assembly would vote to issue an advisory position. States would be weighing their desire to see political pressure placed on former colonizers to pay for their deeds against their general interest in treaties not being applied retroactively so that governments will actually sign onto them.

A third way political pressure could be applied is that even if the court decides not to hear the case, judges sympathetic to the Caribbean nations’ cause could write dissenting opinions, publicly shaming the European nations for not taking responsibility for their history in the Caribbean.

This is not the first time the Caribbean states have challenged European nations at the U.N. In 2010, Caricom states led the campaign against the European Union attempting to gain a special "enhanced observer" status in the General Assembly, which would have given the body the right to take the floor.

The Caricom-authored resolution (PDF) to postpone the vote indefinitely passed in the General Assembly with hefty support from African and Latin American states.