COLONIALISM, SLAVERY, REPARATIONS AND TRADE: REMEDYING THE 'PAST'?
Monday 10th November 2008
Brunei Gallery, SOAS, London
09:14 Welcome by John Packer.*
09:17 Welcome by Fernne Brennan.*
09:21 Professor Dr. Rhoda Howard-Hassmann: The Social Movement for Reparations to Africa: problems and prospects, with comparisons to other reparations movements*
Questions and comments from the floor*
Rhoda Howard-Hassmann responds*
Further questions and comments from the floor*
Rhoda Howard-Hassmann responds*
10:25 Dina Shelton: Litigation And Political Action To Address Historic Injustices In The United States: Problems And Prospects*
10:57 Clemens Nathan: The Value of Experience: What Post World War 2 Settlements Teach us About Reparations*
Questions from the floor*
Clemens Nathan responds*
Dina Shelton responds*
John Packer responds*
12:14 Sheila Dziobon: English Judicial Attitudes to Slavery and the Slave Trade: 1729-1807*
12:37 Paul McHugh: Atonement as a juridical process: the jurisprudence of aboriginal rights.*
12:46 Madge Dresser: Denial, apologies and reparations.*
13:06 Marika Sherwood: The Effect of the Trade in Enslaved Africans and Colonialism on West Africa …*
Question from Rhoda Howard-Hassmann*
Marika Sherwood responds*
Comment by Rhoda Howard-Hassmann*
Question from the floor*
Marika Sherwood responds*
14:12 His Excellency Ambassador Luis Alfonso de Alba: Plenary address*
Questions from the floor*
Luis Alfonso de Alba responds*
14:55 His Excellency Kwesi Quartey: 50 years after the Independence of Ghana and 200 years after the abolition of the Trans-Atlantic Slave Trade – is there a juridical basis for the claim for reparations?*
15:22 Esther Stanford: International Law as Resistance: Lessons from the Pan-Afrikan Struggle for Reparations.*
15:34 Katherine Bracegirdle: Restitution Following Slavery*
16:02 Rohan Kariyawasam: Responding*
16:37 Professor Theo van Boven: Plenary address*
17:18 Steve Peers: Responding*
17:27 Marcus Goffe: Discussant.*
17:33 Kirsteen Shields: Discussant.*
17:35 Darren Calley: Discussant.*
17:41 Peter Muchlinski: Summing up.*
Question from the floor*
Fernne Brennan responds*
Rhoda Howard-Hassmann comments*
Peter Muchlinski comments*
Comment from the floor*
17:48 Fernne Brennan: Closing remarks.*
(In order of address to the conference)
John Packer, Professor and Director of the Human Rights Centre
Fernne Brennan, Senior Lecturer in Law, Member Human Rights Centre, University of Essex
Professor Dr. Rhoda Howard-Hassmann, Canada Research Chair in International Human Rights, Wilfred Laurier University, Ontario
Professor Dinah Shelton, Manatt/Ahn Professor of International Law, The George Washington University Law School
Clemens Nathan, Director of the Clemens Nathan Research Centre, Joint Chairman, Consultative Council of Jewish Organisations, Board Member, Conference on Jewish Material Claims
Dr. Sheila Dziobon, Senior Lecturer in Law, University of Plymouth
Dr Paul McHugh, Reader in Law, Department of Land Economy, University of Cambridge
Madge Dresser, Reader in History, University of the West of England
Marika Sherwood, Hon. Senior Research Fellow, Institute of Commonwealth Studies, University of London
His Excellency Ambassador Luis Alfonso de Alba, Permanent Representative of Mexico to the United Nations in Geneva
His Excellency Kwesi Quartey, Ghana's Ambassador to Ethiopia and Permanent Representative to the African Union (Chair and Speaker)
Esther Stanford, jurisconsult, Pan-African Reparations Coalition
Katherine Bracegirdle, solicitor, lecturer, School of Law University of Sheffield, Member of the Institute of Commercial Law Studies Research Cluster
Rohan Kariyawasam, Senior Lecturer, Solicitor, Cardiff Law School, Cardiff University
Professor Bill Bowring, Birkbeck University of London School of Law
Professor Theo van Boven, Professor of International Law, University of Maastricht
Professor Steve Peers, School of Law, University of Essex
Professor Peter Muchlinski, School of Law, SOAS, Professor of International Commercial Law
Marcus Goffe, Attorney-at-Law, Jamaica, legal advisor to the Ethio-Africa Diaspora Union Millennium Council
Kirsteen Shields, CLPE Fellow, PhD student Queen Mary University of London, Centre for Commercial Law Studies
Darren Calley, Lecturer, School of Law, University of Essex
09:14 Welcome by John Packer.
Apologies for late start due to bad weather. There has been a lot of effort putting the conference together by Fernne Brennan who has rallied students and others to help. John can’t stay until end but would like to give thanks to the students who are helping. Thanks also to the people who are here today – they are important people who are in position to do things. They have also been professional inspirations to him for some time. He hopes that as a result of today we will not only learn but reflect and consider more just outcomes. He will now defer to Fernne Brennan.
09:17 Welcome by Fernne Brennan.
Her thanks to John Packer who has supported her in bringing together speakers on incredibly controversial subject but which is still unresolved. Hopefully in the new spirit of change (post US election) it will move forward. She would like people to listen, discuss, join in and find solutions. The ‘Hub’ consists of Essex Human Rights Centre, University of Essex School of Law, Queen Mary’s University and the School of African and Oriental Studies. This conference is the beginning of something, we want to form an Experts by Experience Group. We want people from developing countries to be drivers behind this – there is no point in solutions that don’t involve them. Unfortunately we couldn’t get funding for people from developing countries to attend but we do have an Ambassador from Ghana as well as people from Ghana and Kenya. We need to talk about Human Rights and trade. Brief housekeeping rules (fire alarms and such) then time to get going with the day’s programme. Introduced Professor Dr. Rhoda Howard-Hassmann - note her book is on sale outside at 30% discount.
09:21 Professor Dr. Rhoda Howard-Hassmann: The Social Movement for Reparations to Africa: problems and prospects, with comparisons to other reparations movements
I’m not a legal scholar but a political sociologist. I want to compare social reparations for Africa with Jewish reparations. I wrote the book Reparations to Africa with Anthony Lombardo who was my assistant at the time. We interviewed 76 African ambassadors who asked "why do Jews get reparations but Africa can’t?" We use the definition by Professor Theo van Boven but I also include financial reparations. Who will pay? One needs to convince those from who you seek reparations. The Organisation for African Unity in 1972 appointed a Group of Eminent Persons who were supposed to take charge of seeking reparations for slavery and colonialism. There are also small groups in London. They are called in social theory an "un-mobilised sentiment pool".
African and Diaspora reparationists think their case is self-evident – see for example Laurence Hill’s "Book of Negroes". Many think slavery is the worst crime in history but it is not: Stalin and China were worse, slavery is just one of many horrors.
In the larger view, Africans are owed acknowledgement, apologies, symbolic measures (monuments and museums) and better education. As far as financial reparations, they should seek Economic Human Rights as there is then no need to quantify harm and so forth.
The pre-requisites for a successful reparations claim according to Social Movement Theory are: identifiable claimants; certain types of harm; a short causal chain; a condensation point; and a ‘reasonable’ claim.
Having identifiable claimants is a major problem with the African claim. Should one include descendants? All of Africa? All of the African Diaspora? The Jewish reparations claim was by the State of Israel – this issue is a problem for the African reparations claim.
Certain types of harm are especially suitable for successful claims: those that were illegal at the time; those that violated bodily integrity (causing death or physical harm); those that violated equality rights; and those that violated property rights.
A short causal chain is one with a finite number of identifiable perpetrators (respondents), human actors rather than structural causes and a discrete act over a short period of time. Although Jews were persecuted for thousands of years, the reparations claim was not paid for the whole period but solely for the twelve years of 1930s and 1940s Germany. There were two claim periods, one immediately after the war and another in 1990s.
A condensation point is a moment at which the claim peaks in the public consciousness. In the case of the Jewish reparations claim, this was Anne Frank’s diary, the television programme ‘Holocaust’ in the 1970s and the film ‘Schindler’s List’. People think in stories, they don’t react to Rwandan massacre figures but they do remember the story of the woman whose seven children were killed and the last one to be killed saying "please don’t kill me I promise not to be Tutsi any more".
A ‘reasonable’ claim is one where the financial claim is bearable for the payers. The Jewish claim contrasts favourably with African claims.
Using this framework, one can assess the prospects of success for the African claim for reparations for slavery. The issue of identifiable claimants has already been addressed. On the issue of certain types of harm one needs first to consider whether it was legal at the time to which the answer is ‘yes’. It was not until 1925 that slavery was finally abolished world-wide. Property rights and bodily integrity were violated by our standards but not by the standards at the time. Slavers did not take over African land.
On the issue of a short causal chain and with regard to identifiable perpetrators, many companies and private individuals from Europe were involved and there were also Arab slavers and African collaborators. When considering the condition of Africa today there is shared culpability of current African leaders – it is not purely a result of historic crimes. The requirement for a discrete act over a short period of time is also problematic – 440 years is very long.
The African slavery reparations claim does not have an effective condensation point. The television programme ‘Roots’ and the film ‘Amistead’ had, surprisingly, very little effect.
Finally, the measure of a ‘reasonable’ claim is problematic. The Conference in Accra asked for 770 trillion dollars – this is a figure many times US GDP. One scholar asked for 100 trillion. It has also been asked for reparations for Africans who were not born as a result of slavery. There is little realistic prospect of these claims being paid.
Reparations for colonialism is an easier claim as the perpetrators are more readily identifiable as is defining harm. Legality is a problem as colonialism was legal until 1960s. I also needs to be acknowledged that some Europeans prevented ritual murders of Africans by Africans and that some Europeans freed slaves. There is a problem of collaborators – colonialism favoured some groups over others. It is a finite problem if one looks at states but not if one looks at private individuals and corporations.
There is no particular condensation point and again there is the question of what would be a reasonable claim. There is an argument that payment of Aid by Western governments is compensation and a form of reparation.
An example of an (almost) successful claim for African reparations for colonialism is that of the Herero people of Namibia. This was the massacre of 65,000 of the 80,000 Herero by Germans between 1905 and 1908. Survivors argued that even if genocide was not illegal at the time, the laws of war prohibited their mass murder. Germany apologised in 2004. The Herero would like reparations but the Namibian government (which is of a different ethnic group) opposes this as they don’t want German Aid money diverted from the wider Namibian population.
Another case is that of Congo. The case should fit – the book ‘King Leopold’s Ghost’ claims that ten million people were killed by Belgian colonists who were after rubber and who killed and tortured Africans in the pursuit of this. Belgians have apologised for their participation in the murder of Patrice Lumamba and for their part in Rwanda but not for the rubber period. There are identifiable claimants, the harm was illegal at the time, it violated bodily integrity, there was a short causal chain and identifiable perpetrators. Belgians argue that it was the King who was responsible but they supported the King. The claim is analogous to the holocaust claim – especially as it transpired over several decades not several centuries. We have a condensation point of the book but no movie – maybe that is what we need!
The claim for reparations from Britain to the Mau Mau of Kenya in the 1950s is a case according to social movement theory that has a chance of success. The British rounded up suspected Mau Mau, their families, entire villages, hanged them, tortured them and castrated some men. On the question of whether it was illegal at time, early on the UK hadn’t signed up to Human Rights but later on they had. There is a short causal train; identifiable perpetrators (colonialists, British and Kenyan collaborators); a discrete act over a short period of time. There is a condensation point of Caroline Elkins’ book "Imperial reckoning". A reasonable claim is being made – they are not asking for 100 trillion dollars or $2m per survivor. If the analysis is correct, the claim has good prospects. However, according to Britain, the current Kenyan administration is responsible for claim. There is also the issue that if one compensates the Mau Mau then what about the Home Guard against whom Mau Mau committed atrocities?
In summary, I wanted to talk about social movement theory as I didn’t think anyone else would.
Questions and comments from the floor
Interested about the point of finite perpetrators. In the Holocaust was there any claim against the whole German people – there were responsibilities of individual Germans?
Any comments on the claim by Libya against Italy recently
Legal rights – property rights fine at time e.g. of Mau Mau
Worried about the concept of condensation points. As a side issue Elkins’ book has been discredited but generally idea of "Condensation Points" makes her uneasy.
How does the US reparations movement fit in with this? Basing it on 2nd wave of Jewish reparations movement.
Rhoda Howard-Hassmann responds
It was necessary to negotiate with people who have legal responsibility. The claim would have got bogged down otherwise.
No response recorded.
Should have said violation of property not ‘property rights’ – will amend her speech for future occasions.
It doesn’t matter if we find it palatable or not. Need to have things that make people angry enough to take action. Elkin got a lot of press which was more influential than her critics. She wasn’t universally attacked – she had support. She brought issue to attention of educated public.
For US African-Americans the policy venue is US government. The Japanese- American claim is analogous to the Jewish claim. Whom do you compensate for the African-American claim? Is Barack Obama African-American? There should be museums etc funded. Give them one years military expenditure in Iraq for example to be administered for education and housing! Next article will be about an apology to African-Canadians who were also treated badly.
Further questions and comments from the floor
Have heard from a Canadian friend about the case of First People in Canada – reparations led to a disinclination to work.
Hierarchy of reparations claims. There seems to be a difference between US and Canada. Reparations for who? The slavery issue is very different to colonialism in terms of who gets compensated.
There is a conflict between justice and law which is always faced when dealing with historical issues. What was lawful at the time doesn’t seem just to us. Surprised that Social Movement Theory replicates that conflict – that is a lawyer’s problem. Plea that SMT moves past that and leans on justice rather than law.
Rhoda Howard-Hassmann responds
Doesn’t feel qualified to comment on native Canadians.
Hierarchy is a problem. Have different issues. Fair trade should not be considered reparations – equal rights. Regardless of who is responsible for Africa’s current suffering, (bear in mind African collaborators) need to focus on economic rights and disentangle that from reparations claims which can and would get bogged down.
Regarding SMT looking at legality – the theory just says that it is easier to get a claim if it was illegal at time under your own law. In Holocaust Germany it was not illegal to kill your own people.
10:04 Applause. John Packer thanks Rhoda Howard-Hassmann. Break for tea and refreshments.
10:23 Resumption. John Packer introduces Dina Shelton.
10:25 Dina Shelton: Litigation And Political Action To Address Historic Injustices In The United States: Problems And Prospects
I hope that many of my comments address the legal aspect. The US has just elected the son of a Kenyan goat herd who is married to the grand-daughter of a slave. Black people made the US possible, they worked and fought in wars. They don’t have to ask for anything. Something changed when the US elected Obama. There were comments from the public saying that America has finally crossed a bridge. Another woman thinks we are at the place Martin Luther King spoke of where people are judged by the content of their character and not by the colour of their skin. One comedy show said "we are all square now". How much do US blacks see Obama’s election as a form of reparation?
I will give the conclusion of my paper due to the brief time allowed. Very few successful reparation claims get through the courts. It is important to get reparation claims through the political process and through getting apologies. Lawyers work with historians and economists and provide a vital function. One is marshalling evidence – for example; the Herero case where a claim was brought in the US against companies involved. The German Chancellor in 1908 referred to "Crimes against Humanity" in reference to Namibia. The "Comfort Women" case against Japan for treatment against women during occupied territories saw the complaint won at ILO. The more these claims succeed, the stronger other claims become.
Legal claims strengthen a case. New legal thinking is going into how to solve this problem. Laws are given retroactive effect in the US on the grounds that it was not a legitimate expectation at the time for example the Altern case where Austria did not have a legitimate expectation of avoiding a claim. Even at the time there was debate over legality.
Thomas Paine said that when slavery ended a great amount would be owed to slaves. In 1799 one insurance company would not insure slavers. We need to uncover this type of evidence to strengthen the case to show that there was legitimate expectation at the time.
Litigation itself can be the ‘Condensation Point’ – it can bring attention to the claim. The last twenty years has seen a rise in litigation. In the last couple of weeks there has been a restitution case from WW2 by Mexican agricultural workers. They were brought in for the war effort, paid but 10% was withheld and held on account. The case is now settled and will be paid.
I agree that if one limits defendants and claimants then one’s claim is more likely to succeed.
There are different types of claims: slavery and taking of native lands for example. Litigation set the stage for a congressional investigation which resulted in the Japanese-American claim succeeding.
The Alien Tort Act stimulated claims. It was dormant until the late 1980s and then used by Nicaraguans and then the Ferdinand Marcus case. Aliens were coming to US courts for reparations in their own country. It is ironic that one can’t get reparations for domestic claims.
I won’t talk about the holocaust claim.
Most claims in the US involved Native-Americans. About 400 treaties between the Native-Americans and the US government. Treaties are considered domestic law and the US decides who is Native-American for example. There were large compensations paid for land taken. There was also the return of Native-American remains. There are still problems with the misuse of Native-American names – for example the Washington Redskins football team. Efforts so far in this area have been unsuccessful.
On the subject of slave reparations, the first case was Cato v United States. The claimants were seeking reparations from the US government itself but the case was dismissed before process was even served on the grounds that the court could not find a legal basis for a claim against the US. It said that the legislature was the place for action as the US hadn’t waived sovereign immunity.
African-American slave litigation has not been successful. One case that did succeed was based on unfair practices in Californian business codes namely the failure to disclose involvement in the slave trade. Most cases are dismissed due to lack of standing. There were not good records during slavery which is a problem regarding identifying slave ancestry and proving a causal link. There are four main problems: a causal link; measuring harm; identifying present claimants; and identifying present defendants.
Many have turned to the legislative process unless linked to recent events. See for example the case of Rosewood, an African-American township which was burned down.
A direct consequence of recent legislation has been a series of apologies. The first was the most far reaching. US congress in 1993 on 100th anniversary of Hawaii recognised the illegality of the annexation of Hawaii. The President acknowledged that reparations were due to Hawaii and expressed a commitment to look into ramifications of the overthrow of the Hawaiian monarchy. This recognised in effect the right of the Hawaiian people to self-determination.
JP Morgan apologised in 1995 for their corporate ancestors and pledged 500 million dollars to black students. Litigation gave rise to corporations being required to publish slavery links. This led to the discovery of the 1799 insurance memo.
There was also an apology for not passing anti-lynching legislation despite over 400 bills being introduced during the period. Senator Andrew began the discussion of anti-lynching legislation by naming each lynching victim.
In 2008 there was an apology for the enslavement and segregation of African-Americans. This began at the local level and moved up. Bills were introduced by the descendants of slaves. The first occurred in Virginia and was the only one to include Native-Americans.
Recent bills have shown the limitation to how far this will go. There is recognition that it is an alternative to other measures rather than the start of other action.
Representative John Conyers has proposed a similar national truth commission to that for the Rosewood Massacre in order to investigate wrongs inflicted by slavery, but thus far without success.
Many in US reparations have turned to legislation to enact measures beyond 1960s civil rights, taking action on behalf of inner cities and reservations.
Even where claims are dismissed by the courts, they start a process leading to reparations taking place in the political arena.
Repetition of the problems with reparations claims particularly with regard to slavery descendants owing themselves reparations in the case of mixed race people! Because of the reservation system there has been an isolation of Native-American people making identification easier than with African-Americans.
Litigation should not end but we should be realistic – it is usually lengthy, expensive and with no guarantee of success. It is important to get reparations as it leads to reconciliation. The recognition of the equal worth of African-Americans cannot be underestimated.
10:55 Applause. John Packer introduces Clemens Nathan.
10:57 Clemens Nathan: The Value of Experience: What Post World War 2 Settlements Teach us About Reparations
Lord Mackay was once asked if there was any justice in law. I am not a researcher or academic. My function is to see what can be done to implement the work of reparations activists and academics. I want to start by distilling eight controversial points arising from the experiences of the remnants of the Holocaust.
Can compensation really be meaningful?
Is it not extremely dangerous to raise high hopes that can never be filled?
Should we consider reparations for descendants?
Where to draw line between relief, welfare and compensation?
How can political priority be given to fund reparations between states? It is a low priority compared to climate change and armaments. All NGOs need to promote this.
What is the impact of an invasion for liberalising a genocidal regime?
Who should responsible for transferring victims to other countries?
Legal agreements can only function if they are implemented. Economic sanctions don’t work nor does war.
The right to a remedy for victims of gross violations of human rights and for violation of humanitarian law was only established in 2005. It is a scandal that it has taken so long. The Declaration before the UN is slightly ambiguous and reflects the need to reach consensus between many states. Rene Cassin – the drafter of the UDHR – would have been horrified to know how long it has taken to implement it.
How did the Holocaust claim succeed without the help of the UN? There were four major international Jewish organisations based in the US. In 1949 there was a vacuum after the fall of the Third Reich. The four Allies supported the claim by the Jews. There was recognition that other nations would not accept the Germans unless they dealt with the wrongdoing of the Holocaust. All of this persuaded the newly formed German Federation to allow the claim. Israel, the German Federal Government and the Claims Conference agreed the reparations claim – it is notable that none of the three entities existed at the time of the crimes.
Agreements on the State of Israel were more complex – a 1951 plea by Israel was ignored by the Soviets. There were claims for a variety of compensations (for example slave work and stolen artwork).
There were four main types of claim and classes of agreements reached:
International bilateral treaties and agreements. Germany funded programmes for people living in the West. Pacts with the American government.
Multilateral agreements with government and industry.
1998 collective bank settlements with Switzerland
other specialist parties (insurance and similar matters) Insurance companies needed to honour policies for victims and their descendants.
Over many years 60 billion dollars has been paid out until 1969 when claims were closed by the Federal government.
Many descendants were found in nearly 40 countries. In the 1970s, after the Helsinki agreement, the USSR finally allowed emigrants – some of whom had been interred in Russia. Nazis persecuted people everywhere including in north Africa.
Amounts under category two were small but extremely important. Slave labour meant to be worked to death within six months whereas forced labourers were defined differently by the Nazi government.
As an outline of how complex the Claims Conference work is: Many young people are working for it in US, Europe and elsewhere. There is a problem with interviewing victims – for example, Auschwitz has been spelt in 700 different ways. The Claims Conference has 500 archives world-wide which needed to be examined to make claims.
In some case Germans have changed agreements to make them fairer. For example, one fund was originally for those who survived for longer than six months in a concentration camp which was harsh given that many did not live that long.
There is a major media advertising campaign world-wide whenever a new fund becomes available and there is support for prospective claimants to help with often complex application forms. There is an electronic database of all claims – the sophisticated computer system helped with restitution of money for claimants as well as 195 procedures in 32 different camps on women which was only known through examination of the database.
Many other claims still need sorting out throughout Europe especially in Bulgaria, Romania and Poland. In March last year we held a Conference at the International Criminal Court in the Peace Palace in The Hague, with over 80 genocide victim organisations from different countries participating. It was deeply moving and many were encouraged to know that experiences were shared.
There is an urgent need to create a database to assist in claims. It is essential to avoid any form of corruption.
A Conference in Chester last week involved the executive director of ICC victim support and work is now in progress to assist the International Red Cross who promised to supply new limbs for victims. It is important to train families to support people who have lost limbs.
It is a tragedy that the 60th anniversary of the UDHR sees many deprived of Human Rights – it is better not to celebrate it. The world has failed to implement it in a way to reduce horrors, leaders flagrantly disregard it. All nations are responsible.
Questions from the floor
To Dina Shelton: I enjoyed your presentation. If you were part of Obama’s team how would you advise him on tackling reparations? What is white America’s current attitude to reparations? What role would referenda play? What do you understand by the term ‘continuing harm’?
To Clemens Nathan: Is litigation the best way forward? Isn’t it a tool that works primarily for educated and privileged people? Is there any other option? Is it not problematic to require powerful friends in order for a claim to succeed?
Clemens Nathan responds
Everything was done with the agreement of both parties. Litigation was only over the terms of the agreement. There was success because there was another party who could put pressure on the payer of reparations. You need to find powerful partners who can be induced to do something otherwise you are lost. If you have powerful partners you can sometimes succeed. In the case of Congo, you could try and induce some of the beneficiaries to support action to cleanse their names. The UN is an umbrella of nations not all of whom are united in disapproval of matters. The Claims Conference worked as it had the support of the USA which was the most powerful state at the time. You also need strong voices elsewhere such as in the State Department to remind parties of their obligations.
Dina Shelton responds
I hope that rumours of Colin Powell as Secretary of State for Education is true as education is very important. We need a comprehensive health bill as there is a problem with under-insurance in the African-American community. Affirmative action is good and should continue. We need government funding for an African-American museum. We need legislation to abolish predatory lending as it leads to an enduring cycle of poverty. On foreign policy we need to abolish agricultural subsidies to help developing nations.
What do whites think of reparations? It varies throughout the USA and according to educational level. Many Americans (of all ethnicities) do not complete high school and this leads to ignorant attitudes. 70% of African-Americans voted to repeal gay marriage laws which led to resentment in the gay community.
Continuing harm could include reduced life expectancy, infant mortality and maternal mortality. It could be a measure of further reparations.
John Packer responds
I am involved in Iraq and concerned with the issue of the need for powerful friends. It worries me as people without powerful friends are the ones who need the most help – for example the Marsh Arabs have no friends and have suffered genocide and (probably unrecoverable) environmental damage.
11:37 Break for refreshments.
12:13 Fernne Brennan welcomes Conference back.
We will now hear four speakers on the history of colonialism and some about trade. Mark’s book is outside on sale for the bargain price of £5 but there are only five copies. First to speak will be Sheila Dziobon.
12:14 Sheila Dziobon: English Judicial Attitudes to Slavery and the Slave Trade: 1729-1807
Fifteen minutes is not long enough for my paper so there will just be highlights.
What were the English courts doing in the years leading up to the Abolition of Slavery Act? This is the subject of my paper. I was looking for a Human Rights perspective – a phrase not current at the time but it was a known idea. The people in power at that time were (among others) the judiciary.
The York/Talbot Opinion in 1729 followed a series of cases regarding the property rights of a master over his slaves. There was some disquiet at the time – people wanted to make sure their investments would be sound and not scuppered by court decisions. Phillip Yorke, the Attorney General, and Charles Talbot, the Solicitor-General, were approached for an opinion. There had been a question as to whether the baptism of a slave made a change in his status to freedom. The Yorke/Talbot Opinion reassured slavers and this caused trade to flourish. The opinion was outside court but was repeated 20 years later in court by Phillip Yorke (now Lord Hardwicke). This seems to have dampened any inclination by the courts to question these issues.
Next in the series of events were cases before Lord Mansfield. His strongest benefactor was Lord Hardwicke – Mansfield was not of the right social level to get there alone. There were three slavery cases before him: in 1767 Jonathon Strong; Thomas Lewis in 1771 and James Somerset in 1772 (therefore fifty years after the Yorke/Talbot Opinion). Mansfield was reluctant to go against the Yorke/Talbot Opinion and thereby his benefactor.
Next was the notorious case of the Slave Ship Zong – Gregson v Gilbert 1783 – where a shortage of water led to the decision by the ship’s captain to throw some slaves overboard. The legal issue was whether the loss should lie with the insurance company or the ship owner. The case was heard before a jury. Mansfield spoke in summing up to say that slaves were the same as horses. Compensation was paid of £30 per slave thrown overboard. Lobbying for Captain Luke Collingwood to be tried for murder failed.
Another insurance legislation case – Tatham v Hogson 1796 – was heard after Mansfield retired and was succeeded by Sir Lloyd Kenyon (although Mansfield had preferred Justice Buller to be his successor). Do we credit to Lloyd Kenyon for his doubts about the slave trade or was this motivated by public opinion which had been upset by Zong case? Amended insurance legislation was passed in 1788, which said that ship owners could not pass their responsibility onto insurance companies. Lord Kenyon applied this legislation and said it was founded in ‘humanity’ – thus he exercised some discretion. It appears either to be a change in the attitude of the judiciary or else a recognition that they were behind public opinion and needed to catch up.
In Williams v Brown of 1802 was there a more enlightened approach? Williams was a former slave seeking compensation for being reclaimed by his former master. Justice Chambre treated Williams as a free man and enforced upholding the manumission agreement – referred again to ‘dictates of humanity’.
In the last two cases, the judges considered the notion of humanity.
12:37 Paul McHugh: Atonement as a juridical process: the jurisprudence of aboriginal rights.
I give the New Zealand Maori greeting and want to talk about the First People of America and Australasia.
Rights of aboriginal people at the start (early 1980s) was exhortative by legal scholars – at that stage the term ‘un-mobilised sentiment pool’ was apt. Government was insulated from litigation as tribal people were not recognised. The kick start of jurisprudence began in the late 1970s when the land issue became recognised.
There were two types of claims at that time by tribal people (a) native title (b) claims for losses that occurred in the past. There was also a ‘condensation point’ with a wave of film and literature concerning aboriginal rights. Politicians were good at rhetoric but didn’t do much. Trudeau at the last moment brought in section 35. Australia at the last minute introduced legislation. In both cases, the courts applied the legislation widely which was not expected by the politicians. Just as Washington was closing the door, other areas were opening to aboriginal peoples. Many claims in the US are outstanding. In New Zealand and Canada there are historical tribunals which lead into litigation.
There have been many historical settlement cases. For many tribes it was just the beginning. First the native people and white settler states are rewriting the history. Secondly, there has been reinvigoration of the territorially defined tribe – an inherently conservative body. This has had ramifications in the political arena. Thirdly, the rhetoric of settlements tends to be contradictory – whites say it is full and final settlement but native people see it as the beginning of a partnership. Whites have to do it this way to sell it to their own population.
For tribes who have moved into settlement, outcomes have often been fraught. Instead of customary political forms the tribes have been corporatised. There has been creeping white legalism with textualising of customary processes. For some tribes this has been energising but for others it has been very divisive.
The most important outcomes are symbolic ones – apologies and the recognition of First People.
But for many, living with rights is just a problematic as it was before.
12:46 Madge Dresser: Denial, apologies and reparations.
I am a cultural historian with twelve years of experience working as an adviser to a slavery museum.
Early in 2007 I passed statue of Bristol’s most renowned benefactor Edward Colston which had been ‘done’ by (presumably) Banksy, the guerrilla artist. There is an urgent need for an impartial historical examination especially with regards to white resentment and black collaboration. Colston’s participation in the slave trade has become a lightning rod for the issue.
Bristol was the second largest player in slavery (after London) until overtaken by Liverpool. There was widespread participation in the trade. The past decade has seen a storm of debate over Colston’s statue, the Civic centre named after him and having his birthday as a civic holiday. There is a question of whether current residents bear any guilt for the trade of 200 years ago. Bristol followed Tony Blair’s statement of ‘regret’ with their own but avoided use of the word ‘apology’ in order to (hopefully) head off any reparation claim.
Two thirds of Bristol’s population supported a call for an apology in one poll but only 9% in a BBC poll. Disparity in support is not just explicable on race lines.
There is a view that descendants of historical ‘wage slaves’ should not have to pay reparations to descendants of historical ‘slaves’. Slavery is also seen as an hermetically sealed event not to be re-opened. The view that there was African collaboration is also problematic. Less explicit was the widely held opinion that Afro-Caribbeans in Bristol were using slavery as an excuse for their own underachievement.
There was resentment that money was spent on slavery projects when whites needed funding – for example for housing projects. There was also resentment of ‘harping on’ and mentions of ‘slavery fatigue’. The psychological harm of slavery was simply not grasped. It was felt that a focus on past slavery distracted attention from current slavery.
A recent meeting in the St Pauls area of Bristol raised interesting issues. Both in Banjul and Bristol there was complete support for reparations – not just financial reparations but a much more nuanced approach than white people had envisaged. There was also real passion for an acknowledgement of the destructive impact of slavery to be taught in schools. Additionally, there was a desire that education should not focus purely on slavery as being all that is taught about black history.
Colston’s statue still stands. Two roads in Bristol are called White Ladies Road and Black Boy Hill which is seen as offensive with reference to the historical parade of black slave boys before white ladies.
Interesting is the question of African complicity in slavery – it may have existed but it was something forced on Africans. It empowered some which should be acknowledged. The romanticisation and idealisation of indigenous slavery is dangerous, particularly as regards to the mistreatment of women.
There was a subtext at the St Pauls meeting of Jewish versus black, especially with regards to reparations, which had the flavour of anti-Semitism – it could be useful to have some outreach work by the Jewish reparation movement.
Research is not enough – there must be a willingness of historians to confront difficult historical issues.
All people are equal but not all versions of stories should be treated equally.
13:06 Marika Sherwood: The Effect of the Trade in Enslaved Africans and Colonialism on West Africa
We need to start with African enslavement by Muslims. The numbers enslaved by Muslims was the same as that by Europeans but over a much longer period (from the 9th to 16th century).
The difference between European slavery and Muslim slavery was marked in the treatment of slaves. For the Muslims, women were used as concubines and often became wives, men were used for military purposes. The big issue of European slavery was the denial of the humanity of the African.
Confounding domestic and transatlantic slavery is misleading.
At the start of European slavery, Africa and Europe were geopolitically similar with kingdoms, cities, villages and so forth. It was quite democratic in Africa and not so hierarchical.
At the start of European slavery, they started by capturing people in coastal areas. This is what started the plantations.
It is misleading to state that the passing of the Abolition of Slavery Act in 1833 ended slavery – we continued to participate in the trade. The Africa Squad sent to patrol the slave coast was completely ineffective for at least 35 years. Court cases continued until at least the 1940s. Most people don’t realise that the Abolition of Slavery Act 1833 did not include everywhere, only specific places – most of the Empire was in fact ignored by that Act.
What did the slave trade mean to Africa? From Basil Davison: people in the interior of Africa were isolated from contact with Europe except through collaborators. If we have problems dealing with slavery, then we should realise that it is just as problematic in Africa.
One example is of the Ashanti who were powerful traders and needed to have slaves to trade with Europe. How did they obtain these slaves?
Nunn has written about the problem whereby at the onset of colonialism, formerly conflicted peoples were grouped within arbitrarily drawn borders. Peace existed at the point of a European gun during colonialism but what about post-independence?
The slave trade prevented the consolidation of African peoples and left a legacy of fragmentation which gives rise to modern day problems and conflicts.
There was little difference in development between Europe and Africa in the 15th century but the slave trade halted African development.
It is estimated that 20% of Africans died in transit but how many died in the process of capturing them?
Question from Rhoda Howard-Hassmann
Comment on last speaker. Regarding the abolition of slavery in Ghana in 1928. There was a case in 1933 where one mother was a slave so her children couldn’t inherit. Did Marika mean that the Atlantic slave trade continued after 1833 act?
Marika Sherwood responds
It continued until the 1870s.
Comment by Rhoda Howard-Hassmann
Muslim trade continued with the last case in the 1970s.
Question from the floor
Was there any resistance?
Marika Sherwood responds
There was practical resistance (walls around settlements) and religious resistance (appeals to gods, shrines etc). There was also a lot of sabotage damage to ships prior to leaving Africa caused by African people as well as revolts on board ship.
When I have visited northern Ghana, the elders have been reluctant to discuss the subject, only the younger people will talk about the continuing problems of slave descendants in Ghana who face problems.
13:28 Break for lunch.
14:10 John Packer: welcome back after lunch break.
I apologise for the truncated lunch break but we have lots to get through. Introduces His Excellency Ambassador Luis Alfonso de Alba. First president of Human Rights Council. Addressed University of Essex earlier this year at the Human Rights Centre anniversary celebrations.
14:12 His Excellency Ambassador Luis Alfonso de Alba: Plenary address
I felt like a student this morning! <laughs> I am not going to try to rise to the level of discussion of this morning. I would prefer to give some thoughts that I think need to be associated with this discussion.
Priority 1 is to prevent violations. We need an approach that covers the past, present and hopefully the future. If one reads the recent report of the Special Rapporteur on contemporary slavery, there is a widespread problem of slavery.
What is the role of developing countries? What is the responsibility of their governments? For example, in my country of Mexico, they talk about their own country and not about Spain. The main focus is on the relationship with the indigenous population.
A much more nuanced situation is dealing with the mixed population, for example in Mexico the population is 10% indigenous and 80% mixed. How to address affirmative action is very difficult. Who is indigenous and who is not? Some indigenous people don’t want to identify as such for fear of further discrimination.
There is a huge problem of poverty – we can’t just address poverty in the indigenous community and not in the rest of the poverty-stricken population.
Since independence and up to 2000 it was considered that all Mexicans should be treated equally and one should not make distinctions. In 2000 a constitutional change introduced a difference – it was wonderful but it was a recognition of the causes of the failure to treat all Mexicans as the same.
We have developed initiatives in the UN to deal with the issue. Declaration itself addresses the issue of reparations. We need to deal with issues of land and of religious sites. At the current time there is no way of an indigenous person bringing a case which is disturbing. Legislation is dealing with this though.
Land restitution is a problem – we can’t necessarily return the land but we can try to give another piece of land of a comparable type.
Returning to the United Nations, I wants to defend the system. It is thought that it is impossible to get a timely, satisfactory agreement. However, they are building block by block something which can be referred to years later. Two new developments worthy of note are:
The transformation of the mandate of the Special Working Group Rapporteur. It took some time to develop the mandate for the programme. A copy of the first report of the Special Rapporteur is available online.
The Universal Periodical Review. All 192 countries will be reviewed by the OHCHR itself. The review will rely on three documents: a report produced by the country itself; a report produced by the OHCHR to a standard format to make it readily comparable; a report resulting from a compilation of information from civil society (NGOs and others). This will give official status to NGOs for first time. These reports are to be presented every four years and each report should show an evolution.
During the preparation of the OHCHR report, the working group will specify recommendations to be sent to the government and the report will also contain commitments volunteered by the government. This last point is important as it puts the onus on the government to comply with their own commitments.
The UK has already gone through this process but I am not sure that the issue of slavery was raised. The Swiss and French also have been through the process. Mexico is soon to be reviewed at the same time as other countries of big interest such as China and Cuba.
As well as allowing a country to make additional commitments, the UPR also allows a review of matters beyond the Human Rights situation in that country and can then refer to universal standards.
If a country doesn’t ratify, it will not exempt them from this process. This goes with the original slogan of Human Rights: "all rights for all people in all places".
Why a four year cycle? It is a question of resources – we can’t review any faster.
The Review process is open – any country that enters the process can report back annually if they choose to do so. Civil society is a very active participant in the process. We could then have NGOs validating and questioning government reports.
With regards to migrant workers – the success of 10% is welcome but there is also the problem of killings and so on.
Questions from the floor
1. Was the Mexican government involved in the Braseros issue?
2. How does CERD (Commitment to the Elimination of Racial Discrimination) fit in with the UPR?
3. The UPR means that states will have commitments. If a state is in breach of their commitments, then what?
4. What happens in Geneva under Council is transparent but how transparent is the interaction to the domestic level? How can the Council encourage national involvement?
Luis Alfonso de Alba responds
1. Yes, it was involved in the identification of affected parties.
2. The UPR is dealing with all forms of discrimination (disability for example). Madame Chamé wrote her report giving her vision of how the two areas should support each other. We have to avoid repeating recommendations that have been put forward by a treaty party and thereby giving an excuse for rejection. It is interesting that a lot of countries are accepting recommendations from developing nations that they would never accept from European nations.
3. If it is a serious violation then it will be dealt with through the usual channels. If it is not so serious, then the UPR will receive reasons as to why and will then make recommendations. To use the example of Columbia, even before the UPR there is material available to put pressure on states.
4. I think they have done quite a lot already. They already webcast a lot of discussions. It is important in terms of follow-up. We have been encouraging people to come to Geneva at a high level – for example the UK sent their Minister of Justice. We would like to have a schedule to implement recommendations with a timetable. Public transparency is possible but not guaranteed constitutionally and we also have the practical issue of needing to get people from Berne to televise proceedings. Independent experts would be desirable to ask questions in Council – for example Mexico reviewed Tonga but didn’t have a lot of information on Tonga.
14:54 Fernne Brennan introduces a number of short presentations.
14:55 His Excellency Kwesi Quartey: 50 years after the Independence of Ghana and 200 years after the abolition of the Trans-Atlantic Slave Trade – is there a juridical basis for the claim for reparations?
I am a civil servant not an intellectual. I am interested in the subject and would like to share some of my research.
In 2000 when I was serving in New York, I was astonished to learn that an African-American woman got an apology for slavery from some companies and an award of $20m payable to the NAACP. My surprise, however, was increased when I saw the response that said "why rake up the past?"
In 2007 Tony Blair spoke of Britain’s role in the slave trade. It was one of the most inhuman actions in human history which had a profound impact on Africa and the Caribbean but industry and courts were united in their support of the slave trade. Tony Blair said "… it is hard to believe what would now be a crime against humanity, was legal at the time." This was as close to an apology as Britain has ever been.
Was this a matter of private or public law? Tony Blair says however unfortunate, it was legal. But was it? Was it made legal simply because it had the authority of a sovereign parliament? In 1807 the UK Solicitor-General, Sir Samuel Romilly, remarked that the 1789 parliamentary Committee set up to investigate the slave trade had produced a wealth of evidence regarding the inhumanity of the trade and that there is an "accumulation of guilt that hangs on the English Nation".
How was the trade organised and what was role did Africans play in it?
We should compare the British and Dutch involvement in the slave trade. In the case of the Dutch, supreme authority was vested in the Dutch parliament. On 20th September 1672 King Charles issued the charter of the British African Company. The Charter listed ‘Negroes’ among a list of tradable goods. It also granted to the Company mining rights with the proviso that the King, his heirs and successors, would be entitled to two thirds of all gold mined. It could easily be interpreted as an invitation to plunder. A contract between Britain and Spain in 1701 allowed the Spanish to import African slaves into the West Indies – 48,000 slaves in ten years. How were these slaves to be supplied? A Select Committee of the House of Commons in 1791 stated that kidnapping was prevalent. Asked if there was resistance, they were told that Africans gleefully sold their kith and kin.
A Dutch report of the 1600s says Africans had torn up the flag planted on coast to show Dutch jurisdiction. A letter written in September 1730 from the Cape coast to Amsterdam speaks of heavy fire which had exploded the gunpowder shed. The company man had loaded 90 slaves by the previous day but others had escaped.
It has been written of the awful conditions in the Middle Passage. Was there resistance? One ship’s captain said that to guard against resistance one had to identify and execute the leaders. Thus, resistance was known to lead to death as a warning to prevent it spreading.
At the time there was talk of how the slave trade would add to power to the British nation that would last until the end of time. This was a trade underpinned by violence, rape and murder.
There was legal and judicial backing for these practices. Take the example of the infamous Zong case which involved throwing slaves overboard to deal with an insufficient water supply. Nobody would have heard of this affair if it hadn’t been for the insurance claim. The legal system hinged on the concept of the slave as a thing not a person. See for example, Lord Mansfield treating slaves as if they were horses.
Once the British public’s conscience was stirred, they organised and lobbied
and brought about legislation to end slavery. In spite of all the profit that
was made, their decency won out and the trade was ended.
(The address was cut short for reasons of time).
15:22 Esther Stanford: International Law as Resistance: Lessons from the Pan-Afrikan Struggle for Reparations.
I will share learning from the field, not theories.
The reparations movement is not homogenous but there is a lot of expertise that should be drawn on.
In reference to the 27th November 2006 and Tony Blair’s infamous statement of regret, it has to be said that as a lawyer he knew how to draft a statement.
The Pan-African Reparations movement is in pursuit of an internationalist approach. Even a national approach is inappropriate when even our individual identity is hard to define. We need to encompass a mixture of identities. The term "Afro-descendants" has been coined to include slave descendants from around the globe who were forcibly removed from Africa, raped and enslaved and who lost their language and their culture.
It is important to treat this as a global issue. PARCOE aims to raise legal consciousness, engaging with the educational establishment and looking at a multi-faceted approach to reparations.
Concretely, what will reparations look like? PARCOE have created structures looking at addressing this. PARCOE have consistently challenged the view that reparations is just about a financial issue. Fiona Tagart sat with people from PARCOE to link reparations with policies for social cohesion and inclusion.
Reparations is about making repairs. It is impossible to fit the cause within the existing international law structure. We need to start from the damage caused. One cannot understand unless you are within. To use the definition from 1st pan African conference, reparations are repairs of every type we need to recreate and sustain societies. Kwame Nkruma called for "every inch of our lands and every one of our minds and industries".
Asking Africans what they want starts with the genuine independence of Africa. Borders in the continent today were imposed and are part of the problem. As with Jews having the state of Israel, we need a super-state of Africa to incorporate a place for the lost sons and daughters of the Diaspora.
It should be said that it is unacceptable to hold a conference without having a majority presence of the stakeholders.
15:34 Katherine Bracegirdle: Restitution Following Slavery
I got into the subject having heard of US slave litigation and holocaust litigation. In both cases there were claims for restitution and engorgement – tort claims is where my interest lies.
What does restitution mean? It is a specific legal response which is different from the legal concept of compensation. Legally, one would get an order for restitution if the principle cause of action is unjust enrichment.
A restitution claim may succeed if it can show that the defendant made a gain at their expense. There are opponents the to development of a doctrine of unjust enrichment but it is well established.
Need to show defendant was enriched
At expense of claimant
There are no bars
US litigation was dismissed due to a lack of standing of the claimants, being time barred as well as the political considerations. The courts never got to look at the components of a claim with regard to unjust enrichment or another tort. I want to look at a potential English legal claim from that point of view.
The main problem is a limitation period but the Limitation Act 1980 does not specify a set period for unjust enrichment claims. Is there no limit then? In Nelson v Rye the judge said that if no period is specified in the Limitation Act 1980 then none applies. In the case of Westdeutsche Landesbank Girozentrale v Islington LBC, the judge did some Pepper v Hart research and determined that a six year period as per contract should apply. This followed an earlier case that imposed a six year limitation. This assumption has been challenged by academics – McClean has said there should be a general postponement of time where it may result in unjust benefit to defendant. There would therefore be room for argument on this point in an English case.
Is the defendant enriched? This is usually a simple question but in this kind of case when claiming for historical restitution it is not. Who were the defendants? A case in the US that succeeded included Lehman Bros. – there wouldn’t be much point in going after them now. Companies that have been subsumed into others is another complication – in strictly legal terms one couldn’t pierce the ‘corporate veil’ but one might be able to put pressure. The issue of private individuals benefiting from family wealth originating from the slave trade is also problematic as families are not a legal entity which can be held responsible. The UK government is a possibility as the nation as a whole benefited from slavery. Under the Crown Proceedings Act 1947 it is possible to sue the government and the Queen which is a hurdle overcome that blocked the US case. There may be difficulties with public opinion (with taxpayers unwilling to pay) which, although it wouldn’t have a direct impact on the court case, would be important to have the support of the public – especially if asking the court to exercise discretion.
In identifying and valuing the enrichment, one would require historical evidence – maybe forensic accounting – to provide evidence for the courts.
When considering the issue of ‘at the expense of the claimant’ one encounters further problems. The slaves are no longer alive to sue, so the simple option is ruled out. Even if they were, if there is an operative contract then it bars a claim for unjust enrichment. As regards descendants there are difficulties – it would not be straightforward. In the UK we don’t have the same type of class action as they have in US.
As regards ‘unjust enrichment’, duress is the best avenue but one would still encounter problems as it requires ‘illegitimate pressure’ but the slave trade was legal at the time.
One of the interesting points of the US claim was that it was in part conversion – quite incongruous to say people are not property but to claim ownership of oneself as property. If something is ‘property’ then it doesn’t have standing to sue.
In conclusion, I don’t think that restitution would act as the white knight in English courts but it could perhaps (as with US holocaust litigation) exert some moral and commercial pressure. One must be wary as a drawback would be that a negative legal outcome could set back the general reparations claim.
Restitution is only applicable for financial loss but, bearing in mind Esther’s remark about money only being 1% of the issue, then it is perhaps not that helpful.
16:02 Rohan Kariyawasam: Responding
Thinking of the Zong case highlights that the legal issue is an aspect of something important to keep in mind – the inhumanity of the slave trade.
Kate’s exposition of the difficulties in a legal case is something to bear in mind. There are difficulties with the central issues of a potential limitation period; with identifying the class of defendants and therefore identifying the claimants. The point was made that if you can limit the class of defendants very narrowly then you can also limit the class of claimants. The question is: is this just and equitable to all those who have suffered at the hands of slavery?. Also there is the question of identifying the illegal acts.
Another point is the issue of trade—which has not really been discussed here. To what extent could we have reparations through trade institutions, for example the IMF? Some people in the audience were very much against the idea of mixing human rights with trade. However, the point was made by ambassador de Alba on the universal periodic review, and the idea of an additional commitment. The UK and the USA seem the greatest nation states behind the slavery; both are Christian nations; the General Synod has formally apologised for its role in the slavery; The House of Representatives as well; we have for the first time in history an American president who has African roots. So the political argument for bringing a moral case for a change in trade rules seems quite strong. If we think what happened with the TRIPS agreement, an amendment to the TRIPS under paragraph 6 of the Doha Declaration was brought about through grassroots litigation to allow generic drugs to be made available in developing countries at much cheaper rates.
Remedies of trade is perhaps a more achievable target. There is a moral case that can be brought to bear on the political structures – the amendment to the TRIPS agreement was brought about by grass roots lobbying (civil society action).
There are two argument here perhaps for a double pincer movement. Political argument to be made perhaps for a trade remedy. That would be to coerce nation states, UK and US, to propose an additional commitment through the universal periodic review, to allow for instance for tariffs on goods that are exported from African states that have suffered slavery to generally enjoy preferential treatment. There you then have a combination of trade and human rights. The European Commission is at the moment debating the whole issue of Economic Partnership Agreements. In this context the French have looked at what we mean by development and we may need a new definition of development. What are the processes that contribute to development?
Finally, how can development take place if a legacy of the slave trade is that the people don’t exist to bring it about?
16:08 Applause. Fernne Brennan calls for a ten minute refreshment break.
16:35 Bill Bowring introduces Professor Theo van Boven.
16:37 Professor Theo van Boven: Plenary address
This morning there was reference to this year marking the 60th anniversary of the UDHR – it is not a celebration but we should make note. Referring to Article 1, it is an echo of earlier declarations such as the US Declaration of Independence and that of the French Declaration of the Rights of Man.
The US declaration was drafted by slave holders – a contradiction with "all men are created equal". There followed the infamous US Supreme Court Dred Scott decision which held that African slaves were not intended to be included. It is worth noting that when the French drew up their declaration, Olympe de Gouges drew up her Declaration of the Rights of Women and ended up on the guillotine – I am unsure if that was linked!
Both declarations were for a limited number of people – they excluded blacks and women. The UDHR was intended to be an inclusive document. Were the framers of the UDHR aware of the indigenous people of the Americas and Australasia, African slave descendants, Dhalits, Roma, the mentally handicapped and others who at various times have been treated as non-persons? Progressively, the Human Rights movement has become inclusive rather than exclusive.
The historical causes of these problems are lust for power, hegemony and greed under the pretext of bringing civilisation.
New debate in recent decades concerns demands for remedies and restoring historical wrongs. This morning we spoke of the Holocaust and the agreements they reached and the forces behind that. The Holocaust remains the frame of reference in Europe but it is not applicable globally.
The Durban 2001 conference was significant as a location given its past as the home of staunch institutionalised racism.
During the time of transition to democratic rule in Latin America, there was a desire by people for facing what had happened. This gave rise to concepts that gave rise to reparations movement and issues that have arisen across the globe.
Debate intensified and culminated with the Durban 2001 Conference. Why the silence on this conference? Days later, 9/11 overshadowed the Conference and buried the outcome. Also allegations of anti-Semitism arose in parallel meetings of NGOs which led to the US disassociating itself from the gathering.
I was involved in preparations for Durban and was working on it from the early 1990s. The UN process is a slow one, it takes lots of negotiations. There were many regional meetings. Europe made a lot of proposals and wanted settlement on a national basis. Africa proposed an international compensation scheme and a reparations fund. This was unresolved by the start of the conference. Europe was reluctant to make concessions that could be expensive for them.
At the conference, there was a change in attitude to a more positive one. German Chancellor Oscar Fischer spoke of the persisting legacy of colonialism and the need to admit the historical legacy. Outcome of this issue had some interesting and some controversial paragraphs.
Were they crimes against humanity? It was said that they are a crime against humanity and should always have been so. This was a skilful diplomatic compromise that avoided statement of whether they were so at the time.
There was a development based vision of reparations as response to historical injustice. There was no mention of compensation in the Durban declaration although it did talk about affirmative action.
There is both a legal and moral obligation question – is there any justice in law? A moral obligation may count heavier than a legal one. Durban said it was aware of the moral obligation and called on states to take proper action. My paper addressed whether there was a legal obligation and came to conclusion that it is more of a moral obligation.
The Durban conference text was adopted by consensus. Mary Robinson said that Durban should be a beginning not an end. A review conference is due to be held in Geneva but papers for it contain very little about reparations.
2006 marked the 200th anniversary of abolition but there was very little at the UN about the issue of reparations. 25th March has been designated as a special day in commemoration of slavery victims. We see a lot of commemoration but very little declaration on action.
The UK spoke of commemoration – a service in Westminster Abbey, coin minted and such – but it struck me that the UK praised itself on what it had done for debt and poverty relief such as the G8 conference agreements where £1bn was pledged for poverty relief in Africa. There is still a lot to do and poverty relief and development assistance cannot be labelled reparations.
UN work on reparations started in 1989. I want to praise the work of Latin American countries who said we need to work with both the historical and events of the recent past. On issues of colonialism and slavery, historical wrongs were skilfully avoided otherwise it would never have been adopted. Is the UN document relevant to today’s debate? It is important that the document (adopted in 2005) focuses on gross violations which largely correspond to international crimes.
Killing and torture are irreparable. To what extent are these documents useful in litigation? They have been referred to in legal proceedings and legislation in the Americas. More important is to draw up legislation and schemes of reparation programmes. Litigation is time consuming, expensive and only applies to limited number of people. However, it can raise public consciousness.
What is sought is satisfaction. Public acknowledgement and apology is sometimes more important than money.
17:16 Applause. Bill hands back to Fernne Brennan for final session.
17:17 Fernne Brennan introduces Steve Peers.
17:18 Steve Peers: Responding
What struck me as a central point is the question of the criminality of the slave trade. We need to distinguish between calling something criminal as a form of moral condemnation and that of a legal issue. Was it a crime at the time? The fact that it needed legislation to abolish it and the existence of the Royal Charter implies that it wasn’t a crime.
However, that is not the end of the issue. We need to consider whether international treaties (Human Rights and people trafficking) can be applied retroactively. This seems to be the way forward as a technical legal argument.
Once criminal liability is applied – who bears the liability? All the historical parties have died and criminal liability can’t be passed on to descendants. What about corporations and states? If so, then we have to deal with the statute of limitations and so forth.
Trade policies are a problem as the UK is subject to EU trading rules so the EU would have to implement a policy. The EU has had preferential trade agreements with Africa and Caribbean since 1974. The WTO forced abandonment of one way preferential trade so EU have offered an alternative that ACP states have largely rejected in favour of EPAs.
How do you get around problems of EPA? One can’t ask the EU to rescind EPAs as ACP states want them. The whole system within the WTO needs changing. There is a limit to what can be achieved through trade alone.
What was missing today was a model of what the status of Africa would have been if there hadn’t been a transatlantic slave trade. It would be nice to have that worked on.
A central point is the need for a Truth Commission for the collection and publication of the facts of the history of slavery.
17:27 Applause. Professor Peter Muchlinski apologises for his absence today as it has been his busiest day for teaching. Introduces Marcus Goffe.
17:27 Marcus Goffe: Discussant.
The Durban WCAR in 2001 was made possible largely by the vigilant, Herculean efforts of the Group of Eminent Persons empanelled by the OAU and in collaboration with the UN. It was to study the legal issues on Reparations as pronounced at the Abuja Declarations in April, 1993. From the African perspective, this historic Conference took a major step forward when 168 Nations of the world adopted a declaration and programme of action which recognised that "slavery and the slave trade are crimes against humanity and should always have been so". The Durban document explicitly recognises the relationship between this legacy and the current unequal condition of African people world-wide. It was telling for me regarding the processes that the Jewish community used to seek resolution.
I am of the Rastafarian Jamaican community who have participated in many fact-finding missions, conferences, discussions and reports on the subject of reparations.
How can pressure be mounted? Clemens Nathan spoke of powerful partners as being helpful. We need to bring together the skills of all involved. Should this be a legal or diplomatic process?
We need a quorum made of a group to politically pressurise the nations to come to a solution. We can’t break down the barriers of racism until we address historical problems.
The African Union is the way forward and it has already started the process. Europeans, Americans and Jewish people can then be asked for help to take it forward.
17:33 Kirsteen Shields: Discussant.
The Fair Trade movement as a form of reparation is problematic. The impetus needs to come from civil society rather than from the governmental level.
Fair trade offers a model for compliance with international labour standards. It does not offer a remedy for entrenched injustices or structural inequalities.
On a more optimistic note: although fair trade can’t offer a model for reparation, nevertheless it may represent a form of protest against modern forms of slavery, because though slavery has been abolished as an illegal institution, it continues to exist.
17:35 Darren Calley: Discussant.
I would like to express a distillation of the principles I have heard today.
We have heard about ‘wrongful act’, ‘perpetrator’, ‘victim’ and some result or form of redress. There has been a lot of focus today on the wrongful act aspect: was slavery a wrongful act at the time it was committed? These seem to have been the issues affecting the mnds of the Nuremberg judges. Mention was made of the retrospective nature of the Nuremberg trials. The fact that justice allows for a sympathetic reading of legal principles is demonstrated by Nuremberg. There is no need to obsess over whether it was a crime at the time – it was obviously a wrong.
More troubling is who can now bring the claims against whom, and what for? Simplistically, it could be descendants of those who suffered slavery against those who are now profiting. The problem is that so much has happened in the meantime, we don’t have chain of causation but we do have hundreds of years of novus actus interveniens That has to be borne in mind, even if a genealogical link could be established.
Sadly, we have to see slavery in the larger ill of colonialism. The evil of colonialism itself would perhaps be more amenable to arguing for a chain of causation. Perhaps we should, therefore, consider colonialism as a whole rather than separating out slavery.
Noone has mentioned this yet but we cannot be blind to the fact that the international law which allowed the trade in slaves, the carrying slaves across the Atlantic Ocean, are still applicable today. We still have Rules of the Sea which can be interpreted in a way which subjugates many people, in bonded labour, almost slave conditions. Until we look ate that issue I don’t think we can call ourselves particularly evolved.
17:41 Peter Muchlinski: Summing up.
A summary of the issues raised today is:
Is litigation the best strategy?
What justifications do we have for that strategy?
Is trade a better strategy?
How do we ensure that former colonies don’t suffer from continuing unfair trade practices?
Question from the floor
There is a tendency to cop out on what the substantive issues are. Steve
Peer’s suggestion of a Truth Commission is very important – we need to know as
fact who did what to whom. Do we know it? If not, we should. The most important
outcome of this conference should be an inquiry.
Fernne Brennan responds
One objective is precisely that. This Conference is the beginning of a process.
Rhoda Howard-Hassmann comments
In my book I called for a Truth Commission. In response to Esther’s point about inclusion of African voices, I and my researchers spoke to 74 Africans.
Peter Muchlinski comments
I agree that a Truth Commission is the way forward.
Comment from the floor
We need to acknowledge that international law can be seen as part of the problem.
17:48 Fernne Brennan: Closing remarks.
I would like to thank the Student Ambassadors. The rapporteurs will put their documents on our website. Thanks to the Hub bodies. Thanks also to my husband for taking photos. Thanks also to Lewis Footring and Gail Chapman. Special thanks to Marika Footring without whom I could not have got the work done.
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