unearthing the legitimacy of caricom's reparations bid by antonius r. hippolyte university of...
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Unearthing the Legitimacy of CARICOM's Reparations Bid by Antonius R. Hippolyte University of Hull March 2014TRANSCRIPT
Electronic copy available at: http://ssrn.com/abstract=2416790
1
UNEARTHING THE LEGITIMACY OF CARICOM’S
REPARATIONS BID
Antonius R. Hippolyte*
DRAFT Comments Welcomed! I. INTRODUCTION ..................................................................................................................................................................................... 1
II. THE DARKSIDES OF EUROPEAN COLONIZATION OF THE CARIBBEAN ................................ 2
A. A HISTORY OF THE GENOCIDE OF THE CARIBBEAN’S NATIVE PEOPLES .................................... 2
B. THE TRANSATLANTIC SLAVE TRADE AND CARIBBEAN SLAVERY ...................................................... 4
III. THE IMPACT OF NATIVE GENOCIDE AND SLAVERY ON THE CARIBBEAN REGION
TODAY .......................................................................................................................................................................................... 6
IV. CARICOM: THE MAIN PROTAGONIST IN THE REPARATIONS BID .......................................... 10
A. WHAT IS CARICOM? ..................................................................................................................................................................... 10
B. INSTITUTIONAL MAKEUP OF CARICOM .................................................................................................................. 12
V. LOOKING INTO CARICOM’S REPARATIONS CLAIM ............................................................................. 14
VI. REPARATIONS FOR INTERNATIONAL WRONGS: THE CASE OF NATIVE GENOCIDE
AND SLAVERY IN THE CARIBBEAN ...................................................................................................................... 18
A. THE EUROPEAN POSITION ................................................................................................................................................... 18
B. A LEGAL CASE FOR REPARATIONS ................................................................................................................................ 20
VII. CONCLUDING REMARKS ..................................................................................................................................... 26
I. INTRODUCTION
Fourteen Caribbean countries,1 coalescing under the CARICOM banner, are
preparing to bring a class action suit for reparations for native genocide and slavery
against the United Kingdom, France and the Netherlands in the International Court
of Justice (ICJ).2 CARICOM, an international organization, with a common market
at its core, at its 34th regular meeting of the Heads of Government created the
CARICOM Reparations Committee,3 presided over by the prime minister of St.
Vincent and the Grenadines, Ralph Gonsalves, with Barbados, Haiti, Guyana,
Suriname, and Trinidad and Tobago providing political oversight.4 This claim arises
from the reparation desires of Member States for the legacies of native genocide and
slavery, in which almost an entire population of the regions natives peoples was
wiped out by these European settlers and whereby millions of slaves were
* A.A. (H. Lavity Stoutt Community College) British Virgin Islands, LL.B. (Hull), LL.M. (Hull), Ph.D.
Candidate (Hull), Law School, University of Hull, United Kingdom. All errors and views expressed within are
the Author’s own.
1 Antigua and Barbuda, Bahamas, Barbados, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, and Trinidad and Tobago.
2 The Voice: UK Government Blocks Caribbean Reparations Bid [Internet] Available from: <
http://www.voice-online.co.uk/article/uk-government-blocks-caribbean-reparations-bid> Accessed on Friday
October 18th 2013.
3 North American Congress on Latin America: CARICOM Moves Forward with the Reparations Committee.
[Internet] Available from: <http://nacla.org/blog/2013/8/8/CARICOM-moves-forward-reparations-
committee>Accessed on Friday October 18th, 2013
4 Caribbean Community Secretariat, Heads agree on reparations follow up action. [Internet] Accessed from:
<http://www.CARICOM.org/jsp/pressreleases/press_releases_2013/pres147_13.jsp> Accessed on Friday
October 18th 2013.
Electronic copy available at: http://ssrn.com/abstract=2416790
2
transported from Africa to work on plantations in the West Indies for the economic
benefit of these Europeans. These dark sides of the European colonization of the
West Indies may be classified as crimes against humanity, and international law
provides from reparations for such atrocities, given the myriad historical examples
of such reparations.5 However, in the 1830s when Britain ended slavery, the
enslaved people freed, received nothing from the government in compensation for
generations of forced labor, though there was money for slave-owners.6 These vile
crimes continue to have lingering effects in the Caribbean today. CARICOM Heads-
of-States are unanimous in their opinion that these two tragedies have contributed
significantly to underdevelopment of the region. As such it is hoped that reparations
will begin to right the wrongs of the past, namely some measure of economic
compensation to supplement the economies of these countries and acknowledgement
by these countries of the legacies of slavery. The general view is that reparations are
valuable and there needs to be some European recognition of the legacies of slavery.
As such, this article provides, first, a brief history of native genocide and
slavery in the West Indies, otherwise referred to in this article as the dark-sides of
European colonization of the West Indies. Second, it will consider evidence of the
impact of slavery and native genocide on Caribbean countries today, which has
prompted the reparations desires of these countries. Third, it continues by
considering CARICOM’s organizational structure, in an effort to set out its ability as
an international organization (IO) to raise issues on behalf of its Member States.
Fourth, it focuses on the history of the reparations bid and the creation of the
National Reparations Committee, leading up to the actual reparations claim. Fifth,
this article will delve into the issue of reparations in international law. The legal
validity of CARICOM’s reparations claim will be analyzed, considering its strengths
and weaknesses in an effort to provide some preliminary insight into the success of
this reparations bid in international law. It concludes on the basis that that
CARICOM’s claims are valid, as native genocide and slavery were both crimes
against humanity, based on international jurisprudence,7 and reparations should be
made to CARICOM on behalf of the regions peoples consistently with the myriad
examples of reparations that have been made in international law for crimes against
humanity.
II. THE DARKSIDES OF EUROPEAN COLONIZATION OF THE
CARIBBEAN
A. A HISTORY OF THE GENOCIDE OF THE CARIBBEAN’S NATIVE PEOPLES
Notwithstanding the dominance of black people of African ancestry as the
Caribbean’s largest ethnic group today; as will soon be revealed, they are not
indigenous to the Caribbean region. However, prior to CARICOM’s reparations bid,
5 Daily News: Sri Lanka National Newspaper. [Internet] Available from:<
http://www.dailynews.lk/features/make-reparations-slavery-africa> Accessed on December 20, 2013.
6 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 159
7 See the definition of genocide in the Charter establishing the Nuremberg War Crimes Tribunal.
Electronic copy available at: http://ssrn.com/abstract=2416790
3
little attention was actually paid to the genocide of region’s native peoples or
Amerindians as they are commonly referred to today. The regions native peoples,
Arawaks (Tainos) and Caribs (Kalinagos) originated from South America along the
banks of the Orinoco River in modern day Venezuela.8 About 500 BC these peoples
set out in their canoes from the mouth of the Orinoco towards the islands of the
Caribbean.9 Over a period of just over a thousand years, being constantly pursued
by the warlike Kalinagos,10 the peaceful Tainos came to settle in the Greater
Antilles11 while the their pursuers settled the smaller islands of the Lesser Antilles.
By the time Christopher Columbus landed on the small Bahamian island of San
Salvador in 1492, these peoples had successfully settled the Caribbean, and met a
thriving community of Tainos on Hispaniola. In 1493 Columbus returned with an
invasion force of seventeen ships, appointed at his own request by the Spanish
Crown to install himself as "viceroy and governor of [the Caribbean islands] and the
mainland" of America, a position he held until 1500.12 Setting up shop on the large
island he called Española (today Haiti and the Dominican Republic), he promptly
instituted policies of slavery (encomiendo) and systematic extermination against the
native Taino population. Columbus's programs reduced Taino numbers from as
many as eight million at the outset of his regime to about three million in 1496.13
Perhaps 100,000 were left by the time of the governor's departure. His policies,
however, remained, with the result that by 1514 the Spanish census of the island
showed barely 22,000 Indians remaining alive. In 1542, only two hundred were
recorded. Thereafter, they were considered extinct, as were Indians throughout the
Caribbean Basin, an aggregate population that totaled more than fifteen million at
the point of first contact with Columbus.14 This was by no means the end of it. The
genocidal model for conquest and colonization established by Columbus was to a
large extent replicated by others such as Cortez (in Mexico) or Pizarro (in Peru)
during the following half-century. In the latter sphere the Spanish example was
followed and in certain ways intensified by other Europeans, notably the British.
The British’s brutal practices of annihilation of native people can be seen in the
United States, beginning at Roanoake in 1607 and Plymouth in 1620. Overall the
process of English colonization along the Atlantic Coast was marked by a series of
massacres of native people as relentless and devastating as any perpetrated by the
Spaniards. One of the best-known illustrations drawn from among hundreds was the
slaughter of some 800 Pequots at present-day Mystic, Connecticut, on the night of
May 26, 1637.15 Thus, in the West Indies the same fate met even the warlike
Kalinagos in the Lesser Antilles, by the later arriving Dutch English and French.
Similarly to the Spanish, the native population of the Lesser Antilles was enslaved
to work on tobacco plantations. Those who were not killed by the hard work, which
8 Honeychurch L. (2006) The Caribbean People. (3rd Edition) London: Nelson Thornes Publishers, p. 78
9 Honeychurch L. (2006) The Caribbean People. (3rd Edition) London: Nelson Thornes Publishers, p. 78
10 Descendants of the Kalinago (Carib) tribe can be found in Dominica today.
11 Honeychurch L. (2006) The Caribbean People. (3rd Edition) London: Nelson Thornes Publishers, p. 79
12 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available
from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013
13 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available
from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013
14 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available
from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013
15 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available
from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013
4
they were, not use to, were killed by the diseases brought by the Europeans. As soon
as plantation labor proved too strenuous to the islands’ indigenous peoples who were
not use to working under such harsh conditions, Europeans looked towards African
slave labor.
B. THE TRANSATLANTIC SLAVE TRADE AND CARIBBEAN SLAVERY
Trading in slaves has been a feature of both antiquity and the Middle Ages, and
had formed an important part of the Scandinavian economy between the 8th and the
11th centuries.16 But all this was small in comparison with the massive exportation
of human merchandise that took place between the late 16th and early 19th
centuries.17 Modern slavery was in many ways a new beginning and quite unlike its
ancient and medieval predecessors. The European pioneers of the trade in African
slaves were the nationals of the small State of Portugal.18 It began on the morning of
8th August 1444, when the first cargo of 235 Africans, taken from what is now
Senegal, was put ashore at the Portuguese port of Lagos.19 The trade in black gold
had begun. Modern slavery represented the creation of a new form of empire
building. It was developed to supply the manpower for a particular socio-economic
unit- the sugar plantation.20 Following the demand for labor in the mines of
Spanish America, the Portuguese in 1510, began the sale of African slaves there and
for three quarters of a century enjoyed the dominance of the African coasts and of
the slave trade.21 Nonetheless, Portugal was unable to defend its vast claims in
Africa indefinitely, hence its monopoly was increasingly challenged, first by the
Dutch and then by the English, the French and then other Europeans.
To understand the magnitude of the forced movement of Africans to Caribbean
plantations between the 16th and the 19th centuries, it is important to understand
the importance of the sugar plantations to Europe. Before Columbus stumbled on
the Americas in 1492, few Europeans had ever tasted sugar. The limited supply
came all the way from India, and its cost was so high that even a wealthy London
merchant could only consume, on average, one spoonful per year.22 Spain’s discovery
of the islands of the Caribbean changed all that. Conditions there proved perfect for
the cultivation of sugar cane, and by the early 17th century the Spaniards and the
British, Danes and Dutch were all busily cultivating cane plantations from Trinidad
16 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 111
17 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 111
18 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers Limited
p. 1
19 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 108
20 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 109
21 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers Limited
p. 2
22 Smithsonian: Antigua’s Disputed Slave Conspiracy of 1736. [Internet] Available from:<
http://blogs.smithsonianmag.com/history/2013/01/antiguas-disputed-slave-conspiracy-of-1736/> Accessed on
November 30th, 2013.
5
to Puerto Rico.23 Sugar ceased to be a luxury commodity–but demand soared as
prices fell, leaving the new white planter class that ruled the islands among the
wealthiest merchants of their day. The sugar industry therefore became so
important to Britain that at one point it was described as the “richest jewel in the
English crown”.24 However, planters faced difficulty in finding men to farm their
crops. Sugar cane is tough and fibrous, and requires considerable effort to cut; sugar
was then extracted in the inhuman conditions of “boiling houses,” where vast fires
were kept roaring day and night to heat the cane and refine its juices.25 At first the
planters depended on indentured servants brought from home on long-term
contracts, but the work proved too hard for all but the most desperate, and the
islands acquired a reputation as hotbeds of disease. Most poor whites found it easier
to seek work in the fast-growing colonies of North America.26 When they left, the
planters turned to their only other source of manpower–slaves. Between the 16th
and 19th centuries, the slave trade produced the greatest forced migration known to
history. The Lesser Antilles islands of Barbados, St. Kitts, Antigua, Martinique and
Guadeloupe and St. Lucia were the first important slave societies of the Caribbean,
switching to slavery by the end of the 17th century as their economies converted from
tobacco to sugar production. By the middle of the 18th century, British Jamaica and
French Saint Domingue (Haiti) had become the largest and most brutal slave
societies in the region, rivaling Brazil as a destination for enslaved Africans.
The real boom in the slave trade started in the 17th century, with the need for
labor to work the sugar plantations in the West Indies. The Anglo-Spanish Treaty of
Utrecht 1713, which concluded the war of Spanish succession, raised transactions in
African slaves into definite international obligations. Under it, Britain obtained the
valuable monopoly (which was made over to the South Sea Company) to supply
144,000 slaves of both sexes, and of all ages, at the rate of 4,800 negroes a year over
a period of 30 years.27 Between 1492 and 1820 five or six times as many Africans
went to the Americas as did white Europeans.28 An estimated 12 million Africans
were shipped across the Atlantic, and even allowing for the two million who died en
voyage,29 a vast number of slaves survived to reach destinations that ranged from
Brazil to the colonies of North America. Four million of these men, women and
children finished their journeys in the sugar islands of the Caribbean, where—
23 Smithsonian: Antigua’s Disputed Slave Conspiracy of 1736. [Internet] Available from:<
http://blogs.smithsonianmag.com/history/2013/01/antiguas-disputed-slave-conspiracy-of-1736/> Accessed on
November 30th, 2013.
24 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers Limited
p. 2
25 Smithsonian: Antigua’s Disputed Slave Conspiracy of 1736. [Internet] Available from:<
http://blogs.smithsonianmag.com/history/2013/01/antiguas-disputed-slave-conspiracy-of-1736/> Accessed on
November 30th, 2013.
26 Smithsonian: Antigua’s Disputed Slave Conspiracy of 1736. [Internet] Available from:<
http://blogs.smithsonianmag.com/history/2013/01/antiguas-disputed-slave-conspiracy-of-1736/> Accessed on
November 30th, 2013.
27 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers Limited
p. 7
28 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 110
29 An example is the 1781 massacre on the slave trade ship Zong, in which hundreds of Africans were thrown
overboard, alive, so that the voyage’s investors would receive insurance compensation for them. The investors
would not have received compensation if the enslaved people had died while on board the ship. See Beckles,
H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide, Jamaica:
University of West Indies Press p. 72-73
6
thanks to the pestilential conditions—huge numbers were required to replace those
who had died. It has been calculated that more than 150,000 slaves had to be landed
in Barbados to produce a stable population of just 20,000: a phenomenon known to
the planters as “seasoning.” The death rates for black slaves in these islands were
higher than birth rates. The decrease averaged about 3 percent per year in Jamaica
and 4 percent a year in the smaller islands. The main causes for this were overwork
and malnutrition. Slaves worked from sun up to sun down in harsh conditions. They
were supervised under demanding masters, who gave them little medical care.
Slaves also had poor living conditions and consequently they contracted many
diseases. The diary of slave owner Thomas Thistlewood of Jamaica details the
extreme violence against slaves, and constitutes important historical documentation
of the conditions for Caribbean slaves.30 For centuries slavery made sugarcane
production possible. The low level of technology made production difficult and labor
intensive. At the same time, the demand for sugar was rising, particularly in Great
Britain. The French colony of Saint Domingue quickly began to out-produce all of
the British islands' sugar combined. Thus, for almost four centuries, Europeans
carried out the trans-Atlantic slave trade exclusively. The profits that accrued were
so enormous, as to form part of the foundation for the prosperity of the Western
world. Slavery was at the heart of colonialism, especially for the British, central not
only to the American southern plantation economies but also to the northern
economies, which exported products to the slave plantations of the West Indies and
southern mainland.31 The slave trade was once considered not only a lawful but
desirable branch of commerce, participation in which was made the object of wars,
negotiations and treaties, between different European countries.32 The French
Republic first abolished slavery in 1794; this took effect in all French colonies.
Slavery in the French West Indies was reinstated in 1802 by Napoleon I as France
re-secured its possessions in the Caribbean, however unsuccessfully in Saint
Domingue leading to its final declaration of independence on January 1st, 1804.
Britain abolished the slave trade in 1807 and the slavery itself in 1833. In France,
the slave trade was abolished by Napoleon in 1815, while slavery was re-abolished
in 1848. Notwithstanding its abolition, slavery has had negative psychological,
material, and social consequences for the descendants of the enslaved.33
III. THE IMPACT OF NATIVE GENOCIDE AND SLAVERY ON THE
CARIBBEAN REGION TODAY
The consequences of the dark sides of European colonization of the West Indies
30 Hall, D. (1999), In Miserable Slavery: Thomas Thistlewood in Jamaica, 1750-86, Jamaica: University of
the West Indies Press.
31 Mieville, C., (2006) Between Equal Rights: A Marxist Theory Of International Law. London: Pluto Press p.
232.
32 Umozurike U. O (1979), International Law and Colonialism In Africa. Enugu: Nwamife Publishers
Limited p. 7
33 Rupert Lewis “Britain’s Black Debt—Reparations for Caribbean Slavery and Native Genocide by Hilary
McD. Beckles (review)”. [Internet] Available from:<
http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/journal_of_interdisciplinary_history/v044/44
.3.lewis.html> Accessed on November 30th, 2013
7
are vividly clear in the Caribbean today. In contrast to their three European
counterparts who all have industrialized economies and who can be said to have
pioneered the industrial revolution as early as the 18th century, 34 sustainable
development continues to evade most Caribbean countries. Those who believe that
the European economic boom and colonial expansion of Europeans into the non-
European world were merely incidental, ignore the fact that it was only after the
advent of colonialism, were these European countries able to economically surpass
ancient economies such as that of China and India.35 As such, it is no secret that
colonialism laid the foundation for the vast modern economies of Britain, France and
the Netherlands. In 1834, the UK paid in the region £20 million then 40% of
Britain’s budget, to slave masters for lost of their human property following
abolition of slavery.36 It is claimed that this sum is equivalent to £200 billion
today,37 a sizeable portion of the UK’s current Gross Domestic Product (GDP).
Parliament turned to the technologies of accounting and literacy to track and then
decide who was entitled to compensation. 38 Banks, acting as trustees for
beneficiaries of family fortunes built on slave labor, collected compensation for
slaves lost by their beneficiaries.39 Slavery was profitable until the very end’.40 The
profits made from generations of captivity and the final buyout of slave-owners then
passed down through generations; ‘the avenues used to travel deep into the social
heartland of British societies were annuities, marriage settlements, and legacies’. 41
The slave trade and profits from enslaved labor fueled the economic growth of
Europe from the seventeenth through the middle of the 19th century.42 The profits of
slavery were the vehicle for the family rising from the merchant class to that of
royalty. The 7th Earl of Harewood, born in 1923, was a first cousin to Queen
Elizabeth II. He hosted her 1953 visit to the sugar plantation in the West Indies.
While this is only a single family, it illustrates the connections between slavery and
present wealth in the UK today.43 Few twenty-first century historians doubt the
centrality of slavery to economics.44 In 2007, in the Debate on the Bicentenary of the
Abolition of the Slave Trade in the British House of Commons, Vincent Cable,
34 Xing, L., and Hersh J., (2004), The Genesis of Capitalism: The Nexus Between “Politics in Command” and
Social Engineering. American Review of the Political Economy. p. 116
35 Cassese A. (1992), International Law in Divided World. Oxford. Oxford University Press p. 39 36 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 144 37 Quarterly Americas: CARICOM and Reparations. [Internet] Available from:<
http://www.americasquarterly.org/content/caricom-and-reparations> Accessed on Friday October 18th 2013
38 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 154 39 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 156-157 40 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 159 41 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 151 42 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &
Abolition: A Journal of Slave and Post-Slave Studies p. 1 43 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press 44 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &
Abolition: A Journal of Slave and Post-Slave Studies p. 2
8
Member of Parliament, made it clear that “Britain should acknowledge in some form
that modern British society owes much of its prosperity and many of its institutions
to what happened all those years ago”.45 In 2012, although having a population of
63.7 million,46 the UK’s GDP per capita was $38,514.47 In the same year, the
population of France was 65.7 million; its GDP per capita was $39,772.48 The
population of the Netherlands was 16.77 million, while its GDP per capita was
$46,054.49 These statistics reveal the vast economies of these European countries;
economic superiority, which is underpinned by European expansion into the non-
European world during the colonial era and the exploitation of slave, labor that it
obviously entailed. However, though there was money for slave-owners, the enslaved
people freed in the 1830s, when Britain ended slavery received nothing from the
government in compensation for generations of forced labor. 50 This lack of
compensation left its mark on the Caribbean. It resulted in the inability of these
former slaves to combat the reverberations of emancipation. Although they were
now free, relations between them and these Europeans, which continued to colonize
these territories after emancipation, were far from equal. Little was done in terms of
transitioning these former slaves from the life of servitude and ‘de-humanization’ to
freedom and ‘re-humanization’. For example, it would be many years before formal
education was made available to these former slaves, and even when such education
became available it was vastly insufficient. This still has a major impact on literacy
rates in the region today, especially among older generations. Even less was done to
augment the development of these people coming out of slavery, who would
eventually have to take over governance of these territories. Apart from what they
had learned on the plantation, little knowledge was imparted on them in terms of
agriculture, which would come to form the primary commodity in most of these post-
colonial countries, given the lack of viable natural resources in most of these islands.
As such, and given that former slave owners retained ownership of the land, most
newly liberated slaves focused on subsistence farming, due to lack of knowledge and
land to embark on commercial farming for export. As a consequence, for a long time
the only jobs to be had was on the lands of former plantations owners. So for the
next century or more after emancipation, the livelihood of the newly liberated class
remained at the mercy of their former masters. As revealed by Beckles, prostitution,
which is rampant among Caribbean black women today, is also a legacy bequeathed
upon them during slavery. Documented evidence exist of the practice of slave owners
encouraging sexual relations of black slave women with white men for money. Due
to the social status of Caribbean countries, this practice continues today. So while
prostitution in countries such as the Netherlands is practiced out of want, due to the
45 Vincent Cable, Member of Parliament, Debate on the Bicentenary of the Abolition of the Slave Trade,
House of Commons, 20 March 2007. See Beckles, H. McD (2013) Britain’s Black Debt: Reparations for
Caribbean Slavery and Native Genocide, Jamaica: University of West Indies Press p. 24 46 Office for National Statistics: Population. [Internet] Available from:
<http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Population>Accessed on December 19th 2013. 47 World Bank Data: GDP per Capita. [Internet] Available from:<
http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 48 World Bank Data: GDP per Capita. [Internet] Available from:<
http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 49 World Bank Data: GDP per Capita. [Internet] Available from:<
http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 50 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 159
9
many opportunities that exist in these countries; lack of such opportunities in
Caribbean countries has made Caribbean women engage in such practices out of
need. The transition from formal, legal slavery to a reformed system of slavery took
the shape of apartheid in the Caribbean.51 It constituted the platform the ongoing
criminal enrichment of the imperial state and its principal colonial institutional
supporters, particularly those who monopolized their ownership of economic
resources in the Caribbean. 52 These historical factors combined, significantly
influenced early socio-economic conditions in Caribbean countries, which have a
telling effect on the lives of Caribbean people today. So, in comparison to the three
economies aforementioned, the CARICOM Member State with the highest GDP per
capita is the Bahamas,53 which stood at $21,908 in 2012, while unsurprisingly Haiti
held the lowest position with a GDP per capita of merely $771.54 The GDP per
capita of sovereign55 OECS Member States range from U.S. $6,558 in St. Lucia to
$13,969 in St. Kitts and Nevis.56 The paradox here is that, while colonialism and its
manifold evils laid down the foundation for the welfare state in these European
countries and very high standards of living in these countries, the descendants of
those that made these living standards possible continue to struggle in abject
poverty in Caribbean today; reaping none of the fruits of the labor of their ancestors.
The past harms are clear; few doubt the contemporary echoes. The causal link
between the crimes of slavery and the ongoing harm and injury to descendants is
everywhere to be found in the Caribbean. Caribbean countries continue to be
plagued by poverty and underdevelopment, which will continue to hinder their aims
at augmenting their domestic economies. For example, Haiti, with its population of
almost 10 million, falls in the category of LDCs, according to the WTO’s list of least
developed countries,57 and hopes of it graduating from this category anytime in the
near future are remote. Antigua and Barbuda defaulted on its debt obligations in
2010.58 Barbados, most recently has had to shelve an attempt to raise $500 million
in international markets.59 Grenada, is currently facing a debt crisis, and its
finances has been described by the Economist as an “unholy mess, [that] threaten to
push up poverty”.60 St. Kitts and Nevis and Jamaica are currently burdened with
51 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 22 52 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 22 53 The Bahamas has a population of approximately 300,000. 54 World Bank Data: GDP per Capita. [Internet] Available from:<
http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 55 Montserrat and Anguilla are OECS Member States but are British Dependent Territories.
56 World Bank Data: GDP per Capita. [Internet] Available from:<
http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 57 Understanding the WTO: The Organization, Least-developed Countries. [Internet] Available from:<
http://www.wto.org/english/thewto_e/whatis_e/tif_e/org7_e.htm> Accessed on December 20th 2013. 58 Caribbean 360: Grenada default has negative implications for ECCU. [Internet] Available from:
<http://www.caribbean360.com/index.php/business/673881.html#axzz2nwPqJyia> Accessed on December 19th
2013. 59 The Economist, The Caribbean Debt Crisis: God vs Bondholders. [Internet] Available from:
<http://www.economist.com/news/finance-and-economics/21589472-small-debt-ridden-countries-could-benefit-
divine-intervention-god-v> Accessed on December 20th 2013. 60 The Economist, The Caribbean Debt Crisis: God vs Bondholders. [Internet] Available from:
<http://www.economist.com/news/finance-and-economics/21589472-small-debt-ridden-countries-could-benefit-
divine-intervention-god-v> Accessed on December 20th 2013.
10
government debt that is 1.4 percent of their GDP, 61 causing St. Kitts and Nevis to
default on its debt obligations in 2011.62 According to the Government of Saint
Lucia’s Economic and Social Review 2012, Saint Lucia has achieved universal access
to primary and secondary education. However, issues of quality and relevance of the
education system remain. 63 These issues include low levels of matriculation
requirements to enter tertiary institutions; mismatch between available job
opportunities and the current skills of school leavers; low output of tertiary
education; insufficient opportunities for school leavers to attain skills training post-
secondary education; insufficient programs to empower youth to create employment
opportunities for themselves; deficit of highly technical skills which are required to
produce higher valued goods and services for export; and the lack of opportunities
for retraining and retooling of the labor force to take full advantage of the
pervasiveness of new technologies. Labor force data suggest that over 61% of the
population, 15 years and over, does not possess certificates above primary level
education.64 Notwithstanding the heavy reliance of St. Vincent and the Grenadines
on tourism, following the collapse of the Caribbean banana export regime, up until
2005, talks of an international airport in St. Vincent and the Grenadines was still
unheard of. These problems are only a few of the problems that plague Caribbean
countries. They reveal the encumbrances, which the governments of these countries
have to overcome in an attempt to improve the socio-economic welfare of these
peoples.
IV. CARICOM: THE MAIN PROTAGONIST IN THE REPARATIONS
BID
A. WHAT IS CARICOM?
As mentioned above, CARICOM is an international organization in the
Caribbean Region, with a common market at its core. It consists of 15 Member
States, 5 associate members and 7 states with observer status. To understand
CARICOM’s role in this reparations bid, it is essential that one understand the
framework, which underpins this regional organization. The Caribbean Community
and Common Market (CARICOM) is the result of a 15-year effort to fulfill the hope
of regional integration.65 This desire for regional integration originated with the
establishment of the British West Indies Federation in 1958.66 The West Indies
61 The Economist, The Caribbean Debt Crisis: God vs Bondholders. [Internet] Available from:
<http://www.economist.com/news/finance-and-economics/21589472-small-debt-ridden-countries-could-benefit-
divine-intervention-god-v> Accessed on December 20th 2013. 62 Caribbean 360: Grenada default has negative implications for ECCU. [Internet] Available from:
<http://www.caribbean360.com/index.php/business/673881.html#axzz2nwPqJyia> Accessed on December 19th
2013. 63 Saint Lucia Post 2015 National Consultation Draft Preliminary Report No. 1 pp. 3-4
64 Saint Lucia Post 2015 National Consultation Draft Preliminary Report No. 1 p. 3
65 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
66 Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, the then St Kitts-Nevis-
Anguilla, Saint Lucia, St Vincent and Trinidad and Tobago. The Federation was established by the British
Caribbean Federation Act of 1956 with the aim of establishing a political union among its members.
11
Federation came to an end in 1962.67 However the Federations end may be regarded
as the real beginning of what is now the Caribbean Community. With the end of the
Federation, political leaders in the Caribbean strived to strengthen the ties between
the islands and mainland,68 by providing for the continuance and strengthening of
the areas of cooperation that existed during the Federation.69 Importantly, Jamaica
and Trinidad and Tobago both attained independence in August of that year and
with this independence came the power to control their own domestic and external
affairs. In announcing its intention to withdraw from the Federation, the
Government of Trinidad and Tobago proposed the creation of a Caribbean
Community, consisting not only of the 10 members of the Federation, but also of the
three Guianas and all the islands of the Caribbean Sea–both independent and non-
independent.70 To discuss this concept, the Prime Minister of Trinidad and Tobago
convened the first Heads of Government Conference in July 1963, which was
attended by the leaders of Barbados, British Guiana, Jamaica and Trinidad and
Tobago. At this Conference, the participating leaders of the four (4) Caribbean
Countries all spoke clearly of the need for close cooperation with Europe, Africa and
Latin America.71
In July 1965, talks between the Premiers of Barbados and British Guiana and
the Chief Minister of Antigua on the possible establishment of a Free Trade Area in
the Caribbean resulted in the announcement of definite plans to establish a Free
Trade Area.72 In December that year, Heads of Government of Antigua, Barbados
and British Guiana signed an Agreement at Dickenson Bay, Antigua, to set up the
Caribbean Free Trade Association (CARIFTA).73 The new CARIFTA agreement
came into effect on May 1, 1968, with the participation of Antigua, Barbados,
Trinidad and Tobago and Guyana. The original idea to permit all territories in the
Region to participate in the Association was achieved later that year with the entry
of Dominica, Grenada, St. Kitts/Nevis/Anguilla, Saint Lucia and St. Vincent in July
67 The decisive development, which led to the demise of the Federation, was the withdrawal of Jamaica - the
largest member - after conducting a national referendum in 1961 on its continued participation in the
arrangement. This led to the now famous statement of Dr Eric Williams, the then Premier of Trinidad and
Tobago that, “one from ten leaves nought”, referring to the withdrawal of Jamaica and signifying and
justifying his decision to withdraw Trinidad and Tobago from the Federal arrangement a short while later.
See Caribbean Community Secretariat: The West Indies Federation. [Internet] Available from: <
http://www.CARICOM.org/jsp/community/west_indies_federation.jsp?menu=community> Accessed on
November 28th, 2013.
68 Belize, Guyana and Suriname are the non-island members of CARICOM found on the South American
mainland.
69 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: < http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
70 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: < http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
71 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
72 Caribbean Community Secretariat: The Caribbean Free Trade Association (CARIFTA) [Internet] Available
from: <http://www.CARICOM.org/jsp/community/carifta.jsp?menu=community> Accessed on November 28th,
2013.
73 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
12
and of Jamaica and Montserrat on August 1, 1968. British Honduras (Belize)
became a member in May 1971.74 At the Seventh Heads of Government Conference
in October 1972, Caribbean Leaders decided to transform CARIFTA into a Common
Market and establish the Caribbean Community of which the Common Market
would be an integral part. At the Eighth Heads of Government Conference of
CARIFTA held in April 1973 in Georgetown Guyana, the decision to establish the
Caribbean Community was brought into fruition with the consideration of Heads of
Government of the draft legal instruments and with the signing by the 11 members
of CARIFTA (the exception being Antigua and Montserrat).75 The Accord provided
for the signature of the Caribbean Community Treaty on July 4 and its coming into
effect in August 1973, among the then four independent countries: Barbados,
Guyana, Jamaica and Trinidad & Tobago. The Georgetown Accord also provided
that the other eight territories - Antigua, British Honduras (Belize), Dominica,
Grenada, St. Lucia, Montserrat, St. Kitts/Nevis/Anguilla and St. Vincent which
signed the Accord would become full members of the Community by May 1,
1974. 76 The Caribbean Community and Common Market (CARICOM) was
established by the Treaty of Chaguaramas, which was signed by Barbados, Jamaica,
Guyana and Trinidad & Tobago and came into effect on August 1, 1973.
Subsequently the other eight Caribbean territories joint CARICOM. The Bahamas
became the 13th Member State of the Community on July 4, 1983, but not a member
of the Common Market.77 Suriname became the 14th Member State of the Caribbean
Community on July 4, 1995. Haiti secured provisional membership on 4 July 1998
and on 03 July 2002 became the first French-speaking Caribbean state to become a
full Member of CARICOM.78
B. INSTITUTIONAL MAKEUP OF CARICOM
Under Article 6 of the revised Treaty of Chaguaramas 2001, the objectives of
the Caribbean Community are to improve standards of living and work;79 the full
employment of labor and other factors of production;80 accelerated, coordinated and
sustained economic development and convergence; 81 expansion of trade and
economic relations with third state; 82 enhanced levels of international
74 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
75 Caribbean Community Secretariat: The Caribbean Free Trade Association (CARIFTA) [Internet] Available
from: <http://www.CARICOM.org/jsp/community/carifta.jsp?menu=community> Accessed on November 28th,
2013.
76 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
77 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]
Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on
November 28th, 2013.
78 In July 1991, the British Virgin Islands and the Turks and Caicos became Associated Members of
CARICOM, followed by Anguilla in July 1999. The Cayman Islands became the fourth Associate Member of
the regional grouping on 16 May 2002, and Bermuda the fifth Associate Member on 2 July 2003.
79 Article 6(a)
80 Article 6(b)
81 Article 6(c)
82 Article 6(d)
13
competitiveness; 83 organization for increased production and productivity; 84
achievement of a greater measure of economic leverage;85 effectiveness of Member
States in dealing with third States, groups of States and entities of any description;86
and the enhanced coordination of Member States’ foreign and foreign economic
policies and enhanced functional cooperation.87
In many ways the institutional makeup of CARICOM is similar to that of other
IOs that exist in the international system. Article 10 of the revised Treaty of
Chaguaramas 2001 sets out CARICOM’s institutional arrangement. According to
article 10(1), the principal organs of the Community are the Conference of Heads of
Government,88 which is the supreme organ of the Community89 and the Community
Council of Ministers,90 which is the second highest organ. Article 10(2) of the treaty
sets out that in the performance of their functions, the principal organs are to be
assisted by the following organs: the Council for Finance and Planning;91 the Council
for Trade and Economic Development;92 the Council for Foreign and Community
Relations,93 and the Council for Human and Social Development.94
For the purpose of this article, of particular importance is the Conference of the
Heads of Government; the main proponent of the reparations bid.95 The Conference
of Heads of Government consists of the Heads of Government of the Member
States,96 although any Head of State may appoint any Minister or other person to
represent him or her at any Meeting of the Conference.97 The primary responsibility
of the Conference is to determine and provide policy direction for the Community.98
It is the final authority for the conclusion of treaties on behalf of the Community and
for entering into relationships between the Community and other international
organizations and States.99 The Conference is empowered take decisions for the
purpose of establishing the financial arrangements necessary to defray the expenses
of the Community and is the final authority on questions arising in relation to the
financial affairs of the Community.100 Subject to the relevant provisions of this
Treaty, the Conference is empowered to exercise such powers as conferred on it by or
under any instrument elaborated by or under the auspices of the Community.101 It is
empowered to establish such Organs or Bodies, as it considers necessary for the
83 Article 6(e)
84 Article 6(f)
85 Article 6(g)
86 Article 6(h)
87 Article 6(i)
88 Article 10(1)(a)
89 Article 12(1)
90 Article 10(1)(b)
91 Article 10(2)(a)
92 Article 10(2)(b)
93 Article 10(2)(c)
94 Article 10(2)(d)
95 Caribbean Community Secretariat, Heads agree on reparations follow up action. [Internet] Accessed from:
<http://www.CARICOM.org/jsp/pressreleases/press_releases_2013/pres147_13.jsp> Accessed on Friday
October 18th 2013.
96 Article (11)(1)
97 Article (11)(2)
98 Article (12)(2)
99 Article (12)(3)
100 Article (12)(4)
101 Article (12)(5)
14
achievement of the objectives of the Community.102 The Conference may issue policy
directives of a general or special character to other Organs and Bodies of the
Community concerning the policies to be pursued for the achievement of the
objectives of the Community.103 Notwithstanding any other provision of this Treaty,
the Conference may consider and resolve disputes between Member States.104
Fundamentally, the Conference may consult with entities within the Caribbean
Region or with other organizations and for this purpose may establish such
machinery, as it considers necessary to achieve the aims of the organization.105 The
Conference is empowered to regulate its own procedure and may decide to admit at
its deliberations, as observers, representatives of non-Member States of the
Community and other entities.106 The powers which the Conference of the Heads of
Government are endowed with by virtue of Article 12, is the basis for CARICOM’s
representation of its Member States in this claim for reparations.
V. LOOKING INTO CARICOM’S REPARATIONS CLAIM
Having established the basis of this claim for reparations and the evolution and
institutional framework of CARICOM, this article seeks to unearth the logic behind
using CARICOM as the medium by which to pursue the reparations desires of these
14 Caribbean countries. At first glance, it appears that in addition to providing a
more organized, cost-effective and politically-influential way of pursuing this claim
for reparations; the general aim of CARICOM in promoting social and sustainable
economic development in the Caribbean region as depicted in the preamble of the
revised Treaty of Chaguaramus 2001, through its various initiatives, is largely in
line with seeking compensation for the regions peoples, stemming from the
enslavement and genocide of their ancestors. More fundamentally however, the
CARICOM Reparations Committee,107 is an offshoot of CARICOM’s Conference of
the Heads of Government, with each Head of State aiming to secure the welfare of
his country in this reparations bid. Therefore, each country has appointed a
reparations committee, tasked, inter alia, with determining the manner in which
reparations will be distributed and who will receive these reparations; with the chair
of each of these 14 individual committees holding a seat on the CARICOM
Reparations Committee.108 Reparations for slavery and native genocide have a long
but troubled history in the Caribbean. Despite international politico-economic
intimidation in the Western world, Caribbean governments believe that there is a
reparation case to be answered by the Europeans in respect of their colonial
102 Article (12)(6)
103 Article (12)(7)
104 Article (12)(8)
105 Article (12)(9)
106 Article (12)(10)
107 North American Congress on Latin America: CARICOM Moves Forward with the Reparations
Committee. [Internet] Available from: <http://nacla.org/blog/2013/8/8/CARICOM-moves-forward-reparations-
committee>Accessed on Friday October 18th, 2013
108 Caribbean Community Secretariat: Communique issued at the conclusion of the First Regional
Conference on Reparations. [Internet] Available from: <
http://www.caricom.org/jsp/pressreleases/press_releases_2013/pres201_13.jsp> Accessed on November 29th,
2013.
15
domination of the West Indies.109 Colonialism resulted in two of the greatest crimes
against humanity ever committed, native genocide and the slave regime and the
century of racial apartheid that followed.110 The primary case is based on the past
brutality and economic benefit–and the current underdevelopment of the Caribbean
region. Essentially, it confronts the vast economic divides between France and Haiti,
the Netherlands and Suriname, and Britain and its numerous former colonies in the
Caribbean basin, given the poverty stricken economies of these former colonies and
their role in laying the foundation of the industrialized economies of their former
colonial masters. It entails a case for reparatory justice for the region’s indigenous
and African descendant communities who are the victims of crimes against
humanity in the forms of genocide, slavery, slave trading, and racial
apartheid.111 Thus, CARICOM Heads-of-State under the CARICOM Reparations
Commission (CRC) has embarked on a ten-point claim for reparations. This case
proposes the delivery of this mandate within the formulation of the Caricom
Reparations Justice Program (CRJP). The CRC asserts that victims and
descendants of these crimes against humanity have a legal right to reparatory
justice, and that those who committed these crimes, and who have been enriched by
the proceeds of these crimes, have a reparatory case to answer.112 The CRJP
recognizes the special role and status of European governments in this regard, being
the legal bodies that instituted the framework for developing and sustaining these
crimes. These governments, furthermore, served as the primary agencies through
which slave-based enrichment took place, and as national custodians of criminally
accumulated wealth. 113 As part of its reparations claim, CARICOM, first, seeks a
full formal apology. Instead of the Statements of Regret that European governments
have made in the past, the healing process for victims and the descendants of the
enslaved require as a precondition the offer of a sincere formal apology by European
governments. Statements of Regret do not acknowledge that crimes have been
committed and represent a refusal to take responsibility for such crimes. Statements
of regrets represent, furthermore, a reprehensible response to the call for apology in
that they suggest that victims and their descendants are not worthy of an
apology. According to the CRC only a full formal apology will suffice. 114 Second, the
CRC seeks a program of repatriation back to Africa. Over 10 million Africans were
stolen from their homes and forcefully transported to the Caribbean as the enslaved
chattel and property of Europeans. The transatlantic slave trade is the largest forced
migration in human history and has no parallel in terms of man’s inhumanity to
109 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 1
110 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 1
111 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
112 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
113 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
114 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
16
man. This trade in enchained bodies was a highly successful commercial business
for the nations of Europe. The lives of millions of men, women and children were
destroyed in search of profit. The descendants of these stolen people have a legal
right to return to their homeland. Consequently it is the case of these countries that
a repatriation program be established and all available channels of international
law and diplomacy used to resettle those persons who wish to return. A resettlement
program should address such matters as citizenship and deploy available best
practices in respect of community re-integration.115 Third, CARICOM seeks the
initiation and funding of an indigenous peoples development program. It is conceded
that European governments committed genocide on the native Caribbean
population. Military commanders were given official instructions by their
governments to eliminate these communities and to remove those who survived
these atrocities from the region. Genocide and land appropriation went hand-in-
hand. A community of over 3,000,000 in 1700 had been reduced to less than 30,000
in 2000. Survivors remain traumatized, landless, and are the most marginalized
social group within the region. The CRC claims that while the University of the
West Indies offers an Indigenous Peoples Scholarship in a desperate effort at
rehabilitation; it is woefully insufficient. It is therefore conceded that a development
plan is required to rehabilitate this community. 116 Fourth, as part of its claim,
CARICOM seeks the establishment of cultural institutions in the Caribbean basin.
According to the CRC, European nations have invested in the development of
community institutions such as museums and research centers in order to prepare
their citizens for an understanding of these crimes against humanity. These
facilities serve to reinforce within the consciousness of their citizens an
understanding of their role in history as rulers and agents of change. However,
there are no such institutions in the Caribbean where these crimes against
humanity were committed. Caribbean schoolteachers and researchers do not have
the same opportunity. Descendants of these atrocities continue to suffer the disdain
of having no relevant institutional systems through which their experience can be
scientifically told. This crisis must be remedied within the CJRP. 117 Fifth, the CRC
has highlighted the public health crisis in the Caribbean. According to research in
the region, the African descended population has the highest incidence in the world
of chronic diseases in the forms of hypertension and type two diabetes. This
pandemic is the direct result of the nutritional experience, physical and emotional
brutality, and overall stress profiles associated with slavery, genocide, and
apartheid. The CRC claims that while over 10 million Africans were imported into
the Caribbean during the 400 years of slavery, at the end of slavery in the late 19th
century less than 2 million remained. The chronic health condition of Caribbean
blacks now constitutes the greatest financial risk to sustainability in the region.
Arresting this pandemic requires the injection of science, technology, and capital
115 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
116 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
117 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
17
beyond the capacity of the region. Thus, Europe has a responsibility to participate in
the alleviation of this heath disaster. The CRJP addresses this issue and calls upon
European governments to take responsibility for this tragic human legacy of slavery
and colonialism. 118 Sixth, the CRC seeks a program of illiteracy eradication. At the
end of the European colonial period in most parts of the Caribbean, the British in
particular left the black and indigenous communities in a general state of illiteracy.
Some 70 percent of blacks in British colonies were functionally illiterate in the 1960s
when nation states began to appear. Jamaica, the largest such community, was
home to the largest number of such citizens. Widespread illiteracy has subverted the
development efforts of these nation states and represents a drag upon social and
economic advancement. Today, Caribbean governments allocate more than 70
percent of public expenditure to health and education in an effort to uproot the
legacies of slavery and colonization. European governments, therefore, have a
responsibility to participate in this effort within the context of the
CRJP.119 Seventh, the CRC seeks the establishment of an African knowledge
program. The forced separation of Africans from their homeland has resulted in
cultural and social alienation from identity and existential belonging. Denied the
right in law to life, and divorced by space from the source of historic self, Africans
have craved the right to return and knowledge of the route to their roots. According
to these countries, a program of action is required to build ‘bridges of
belonging’.120 Such projects as school exchanges and culture tours, community
artistic and performance programs, entrepreneurial and religious engagements, as
well as political interaction, are required in order to neutralize the void created by
slave voyages. Such actions will serve to build knowledge networks that are
necessary for community rehabilitation.121 Eighth, the CRC seeks psychological
rehabilitation, according to this body, for over 400 years Africans and their
descendants were classified in law as non-human, chattel, property, and real estate.
They were denied recognition as members of the human family by laws derived from
the parliaments and palaces of Europe. This history has inflicted massive
psychological trauma upon African descendant populations. This much is evident
daily in the Caribbean. Only a reparatory justice approach to truth and educational
exposure can begin the process of healing and repair. Such an engagement will call
into being, for example, the need for greater Caribbean integration designed to
enable the coming together of the fragmented community.122 Ninth, the CRC seeks
a technology transfer request from European governments. For 400 years the trade
and production policies of Europe could be summed up in the British slogan: “not a
118 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
119 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
120 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
121 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
122 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
18
nail is to be made in the colonies”. The Caribbean was denied participation in
Europe’s industrialization process, and was confined to the role of producer and
exporter of raw materials. This system was designed to extract maximum value from
the region and to enable maximum wealth accumulation in Europe. The
effectiveness of this policy meant that the Caribbean entered its nation-building
phase as a technologically and scientifically ill-equipped- backward space within the
postmodern world economy. Generations of Caribbean youth, as a consequence,
have been denied membership and access to the science and technology culture that
is the world’s youth patrimony. Technology transfer and science sharing for
development must be a part of the CRJP. Tenth, Caribbean governments seek a
program of debt cancellation. Caribbean governments that emerged from slavery
and colonialism have inherited the massive crisis of community poverty and
institutional unpreparedness for development. These governments still daily engage
in the business of cleaning up the colonial mess in order to prepare for development.
The pressure of development has driven governments to carry the burden of public
employment and social policies designed to confront colonial legacies. This process
has resulted in states accumulating unsustainable levels of public debt that now
constitute their fiscal entrapment. This debt cycle properly belongs to the imperial
governments who have made no sustained attempt to deal with debilitating colonial
legacies. Support for the payment of domestic debt and cancellation of international
debt are necessary reparatory actions. 123
VI. REPARATIONS FOR INTERNATIONAL WRONGS: THE CASE OF
NATIVE GENOCIDE AND SLAVERY IN THE CARIBBEAN
A. THE EUROPEAN POSITION
In 2007, the British Prime Minister Tony Blair expressed regret for slavery
during the events marking the bicentennial anniversary of the abolition of the slave
trade by the British Parliament. But he stopped short of an apology, which could
have led to discussions about remedial measures.124 Others have sought to provide
justification as William Devaynes, a former Chairman of the East India Company
did in the 19th century. He supported the slave trade on the basis that if the slave
merchants did not purchase from him and others, their prisoners taken in war
would be killed.125 Since the mid-nineteenth-century abolition of slavery, the call
for reparations for the crime of African enslavement and native genocide has been
growing, but call for reparations have been fragmented, given the diversities that
123 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]
Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-
approve-10-point-plan-> Accessed on March 25th 2014.
124 Rupert Lewis “Britain’s Black Debt—Reparations for Caribbean Slavery and Native Genocide by Hilary
McD. Beckles (review)”. [Internet] Available from:<
http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/journal_of_interdisciplinary_history/v044/44
.3.lewis.html> Accessed on November 30th, 2013
125 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 112
19
exist among the region’s peoples.126 As such calls for reparations for slavery and
native genocide have been given short shrift by those responsible. A primary reason
for this is as a result of the legal constraints involved in pursuing reparations. For
example, in undermining the reparations objectives of these countries, it is claimed
that slavery existed in antiquity and formed one of the major characteristics of
ancient society. All Empires in history prior to the beginning of the nineteenth
century have been slave-owning societies.127 It was therefore recognized by the
ancient Law of Nations.128 Slavery and the slave trade was facilitated and sustained
by international law. Sadly, it is difficult to say that customary international law
condemns two of the greatest curses which man has ever imposed upon his fellow
man, the institution of slavery and the traffic in slaves.129 In the 19th century case of
The Antelope,130 the U.S. Supreme Court found that since Europe and America had
embarked on the slave trade for two centuries without opposition and without
censure, no jurist could hold that it was illegal or that those who engaged in it might
be punished or deprived of their property.131 The status quo, as it is so often, was
powerful. Arguments against slavery were frequently met first with the response
that slaves, as property could not be taken from their owners.132 The opposition to
slavery was, as Ralph Waldo Emerson acknowledged, a piece with other reform
movements; they were all attacks in some way on property.133 According to Emerson,
“slavery and anti-slavery is the question of property and no property, rent and anti-
rent; and Anti-slavery dare not yet say that every man must do his own work, or, at
least, receive no interest for his money. Yet that is at last the upshot”.134 It is a sad
fact that inhumane behavior frequently has no better defense than that rights to
private property must be respected. Morality is so often sacrificed for money. Just as
people at the time understood the inhumanity – indeed immorality – of slavery, they
also understood the economic necessity of slavery to slave-owners. The pro slavery
literature at the time frequently justified the institution on economic grounds. In
this case, the defense of slave property served its purpose well. For the slave trade
and profits from enslaved labor fueled the economic growth of Europe from the
seventeenth through the middle of the 19th century.135 It is most unfortunate that
these arguments have survived and continue to be argued in the modern day. Sir
Hilary Beckles, who is now the Chairman of the National Reparations Committee,
led the Caribbean, lobby for reparations at the 2001 conference on racism in Durban,
South Africa. The position taken by government delegations from the United States
126 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press
127 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the
Present. Phoenix Press, p. 106
128 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers
Limited p. 6
129 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers
Limited p. 8
130 25 U.S. 66, (1825)
131 Wheaton’s Reports X, 66
132 See, e.g. ‘House of Delegates’, Richmond Enquirer, January 21,1832, 2 (reprinting speech of James
Gholson during debates about the future of slavery in Virginia in the wake of Nat Turner’s rebellion).
133 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &
Abolition: A Journal of Slave and Post-Slave Studies p. 1
134 Journals of Ralph Waldo Emerson 7 (Boston: Houghton, Mifflin Co., 1912): 205.
135 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &
Abolition: A Journal of Slave and Post-Slave Studies p. 1
20
and the European Union was that slavery should have been a crime against
humanity, though it was not considered so at the time.136 So, claims for reparations
have been hindered so far for being devoid of any legal content as per Europeans.
Nonetheless, the basis of all European trade law, during colonialism, was that the
colonies were part of the domestic economic space of the nation; hence the capacity
of government to enforce trade laws and investment rights, and ensure compliance
with the will of parliament.137 Thus, for example, the official position of the British
government, that slavery was legal at the time it was enforced does not stand up to
scrutiny of British law. It is insufficient to argue that it was legalized by the colonial
government, which in turn, understood, from its judicial arm, that its illegality in
England created a double standard a contradiction within English civil and common
law.138
B. A LEGAL CASE FOR REPARATIONS
The question of reparations is not just a question of reading twenty-first
century morals back onto actors several centuries ago. To the contrary, some people
at the time knew slavery was wrong. This was not just an attitude held in high-brow
circles; a British newspaper reported in 1824 that the ‘crime of creating and
upholding the slavery of the West Indies is a national crime, and not the crime of
slave-holders alone’.139 Moreover, judges such as U.S. Supreme Court Chief Justice
John Marshall recognized the inhumanity of slavery, even as they justified their
refusal to take action against the international slave trade with arguments such as
other countries are engaged in the international slave trade and have been since the
beginning of time; slavery is economically necessary; and law is distinct from
morals.140 Thus, the National Reparations Committee is drawing on the anti-slavery
movement in Britain. It also draws upon the liberal philosophical, religious, and
legal traditions of Europe, however, to show that the institution and practices of
European slavery in the Caribbean were highly contested and that a considerable
body of opinion opposed slavery on moral grounds.141 For example in Sommersett
v. Steward,142 Chief Justice Mansfield held that, Sommersett, a slave detained on a
ship on the Thames pending his return to the West Indies, was to be discharged;
after a writ of habeus corpus was brought on his behalf. According to his Lordship:
“the state of slavery is of such a nature that, that is incapable of being introduced on
any reasons, moral or political, but only by positive law, which preserves its force
long after the reasons, occasion, and time itself from whence it was created, is erased
136 Rupert Lewis “Britain’s Black Debt—Reparations for Caribbean Slavery and Native Genocide by Hilary
McD. Beckles (review)”. [Internet] Available from:<
http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/journal_of_interdisciplinary_history/v044/44
.3.lewis.html> Accessed on November 30th, 2013
137 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 21 138 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 21 139 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 131
140 The Antelope, 25 U.S. 66, 115–16 (1825)
141 Rupert Lewis “Britain’s Black Debt—Reparations for Caribbean Slavery and Native Genocide by Hilary
McD. Beckles (review)”. [Internet] Available from:<
http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/journal_of_interdisciplinary_history/v044/44
.3.lewis.html> Accessed on November 30th, 2013
142 (1772) English Reports, Kings Bench vol. 98, p. 499
21
from memory; it’s so odious, that nothing can be suffered to support it, but positive
law”.143 So, while the call for reparations remains a fractured, contentious and
divisive call; in recent years it has generated considerable public interest, especially
within sections of the community that are concerned with issues of social justice,
equity, civil and human rights, education, and cultural identity. The reparations
discourse has been shaped by the voices from these fields as they seek to build a
future upon the settlement of historical crimes. From this has arisen CARICOM’s
case for reparations for slavery and native genocide, as these may be classed as
crimes against humanity. Whether international law recognizes the mass
annihilation of the native people of the Caribbean and the mass kidnap and
enslavement of Africans from their homeland and transportation to plantations in
the Caribbean as crimes against humanity, the following propositions cannot be
denied. First, the mass genocide of the region’s native people and the kidnap and
enslavement of Africans were two of the most wicked criminal enterprises in
recorded human history. Second, no compensation was ever paid by any of the
perpetrators of these vile acts to any of the sufferers. Third that the effects of the
crime continue to be massive, both in terms of the enrichment of the descendants of
the perpetrators, and in terms of the impoverishment of their descendants in the
Caribbean today.144 As soon as these propositions are acknowledged, then the
justice of CARICOM’s claim for Reparations is proved beyond reasonable doubt.145
Culminating in the following: first, native genocide of the regions native peoples and
slavery and the slave trade, both constituted crimes against humanity; second,
international law recognizes the right of victims of crimes against humanity to
reparation; third, international law does not recognize any legal barrier to prevent
those who still suffer the consequences of crimes against humanity from claiming
reparations, even though the crimes were committed against their ancestors; fourth,
reparations agenda should be directed against the governments of those countries,
which promoted and were enriched by the slave trade and the institution of slavery.
Even so, as attractive as the ideals of reparation may sound in practice, in
theory things are not so simple, but this is not because international law does not
provide a remedy for crimes against humanity. It is merely because the
international community attaches minimal importance to this issue. However, in
this context reference should be made to the Latin legal maxim: ubi jus, ibi
remedium: where there is a right, there must be a remedy. In other words,
notwithstanding the unique, massive and multi-faceted nature of the claim, and the
fact that creative and imaginative international jurists will be needed; once the
claim is well-founded in legal principle, and well-recognized by the international
community, remedies and mechanisms will be found.146 International law has never
been static. New structures have often been devised to give effect to recognized
principles. The Nuremberg War Crimes Tribunal is an example of new legal
thinking which brought a measure justice following the atrocities of Nazi Germany
against the Jews. After all, the International Court of Justice, where states can now
143 (1772) English Reports, Kings Bench vol. 98, p. 510
144 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
145 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
146 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
22
settle disputes with each other by law rather than by war, was unheard of prior to
1945 establishment of the United Nations (U.N.). Given this state of affairs, the
author finds himself perturbed by the length of time that has elapsed since the
abolition of slavery and the fact that no reparation has ever been made to these
people or their descendants.
In considering the Charter establishing the Nuremberg War Crimes Tribunal, it
is the author’s opinion that CARICOM’s claim for reparations against Britain,
France and the Netherlands for native genocide of the regions native peoples and
slavery is legally valid as they both constitute crimes against humanity. The
Charter of the Nuremberg Tribunal, which later compensated the Jews for the
atrocities of Hitler’s Third Reich, defined crimes against humanity in these words:
“Murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population.... whether or not in violation of the
domestic law of the country here perpetrated”.147
The Charter also gave jurisdiction to the Tribunal to try perpetrator for, among
other crimes, deportation to slave labor or for any other purpose of civilian
population of or in occupied territory. The tribunal found that acts so reprehensible
as to offend the conscience of mankind, directed against civilian populations, are
crimes in international law.148 In 1948, the U.N. promoted the Convention of the
Prevention and Punishment of the Crime of Genocide. Most countries in the
world have ratified it. However, the Convention was merely giving a new legal form
to an old concept in international law. The preamble to the Convention recognized
that ‘genocide is a crime against international law, and that at all periods of history
genocide has inflicted great losses on humanity. Article 2 of the Convention defines
genocide as “any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, such as: killing members of
the group;149 causing serious bodily or mental harm to members of the group;150
deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part 151 ...”. Historians can show without
difficulty how the invasion of African territories, the mass capture of Africans, the
horrors of the middle passage, the chattelisation of Africans in the Americas, the
extermination of the language and culture of the transported Africans, constituted
violations of all these international laws. Therefore, the argument that these
enterprises were legitimate under European law, and accepted as normal most
Europeans, is unavailing today. Europeans did not, then or now, constitute all
mankind, and the conscience of all decent mankind must always have been outraged
by the atrocities that Europeans inflicted on Africans for over 400 years. Thus, it is
not hard to see how the denial of human status to a vast section of humanity,
whether through their enslavement or their annihilation were the ultimate crimes
147 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
148 O’Connell D.P. l, International Law for Students
149 Article 2(a)
150 Article 2(b)
151 Article 2(c)
23
against humanity.152
Likewise, international law recognizes the right of victims of crimes against
humanity to reparation. The right to reparation for international wrongs is well
recognized, going as far back as the Permanent Court of International Justice
(predecessor of the International Court of Justice).153 In the Chorzow Factory
Case,154 it was held that: “the essential principle contained in the actual notion of an
illegal act–a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals-is that the reparation must, as far as
possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the award, if need
be, of damages for loss sustained which would not be covered by restitution in kind
or payment in place of it - such are the principles which should serve to determine
the amount of compensation due for an act contrary to international law [must be
made]”.155 Leading commentators on the subject have recognized the efforts that are
being made by international judicial institutions, which have slowly groped their
way towards the articulate formulation of the rule that the commission of an
international tort (wrong) entails the duty to make reparations.156 The author
acknowledges that most of the case law on reparations concerns the compensation
for specific losses such as the destruction of property, buildings, ships etc. But the
principle is just as valid in the case of illegal actions on a larger scale, which affect
entire peoples, and indeed there are direct precedents for the payment of reparations
in such cases. In 1952, the Federal Republic of Germany reached an agreement with
Israel for the payment of $222 million, 157 following a claim by Israel for
compensation. Israel which was limited to the costs of resettling 500,000 Jews who
had fled from Nazi controlled countries. Much later, in 1990, Austria made
payments totaling $25 million to survivors of the holocaust.158 A number of
agreements have been made under the British Foreign Compensation Act of
1950; lump sum settlements were made by Bulgaria, Poland, Hungary, Egypt and
Romania, and a Tribunal was set up to make awards from the sums made available,
so as to do justice as between many thousands of claimants whose property had been
expropriated. A US-Iran Claims Tribunal was established on 19th January 1981, to
compensate American investors whose properties had been nationalized in Iran.159
Japan has made reparation payments to South Korea for acts committed during the
period of invasion and occupation of Korea by Japan.160 The U.N. Security Council
152 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
153 Predecessor of the International Court of Justice.
154 (Germany v. Poland) 1928 PCIJ (Ser. A) No. 17 (Judgment of September 13)
155 (Germany v. Poland) 1928 PCIJ (Ser. A) No. 17 (Judgment of September 13) at 47
156 Schwarzenberge
157 Daily News: Sri Lanka National Newspaper. [Internet] Available from: <
http://www.dailynews.lk/features/make-reparations-slavery-africa> Accessed on December 20, 2013.
158 Daily News: Sri Lanka National Newspaper. [Internet] Available from: <
http://www.dailynews.lk/features/make-reparations-slavery-africa> Accessed on December 20, 2013.
159 Iran-United States Claims Tribunal. [Internet] Available from: < http://www.iusct.net/>Accessed on
December 20, 2013.
160 Daily News: Sri Lanka National Newspaper. [Internet] Available from: <
http://www.dailynews.lk/features/make-reparations-slavery-africa> Accessed on December 20, 2013.
24
passed a resolution in 1991, binding in international law, requiring Iraq to pay
reparations for its invasion of Kuwait.161 In 2008, Italy agreed to pay Libya $5
billion as compensation for its 30-year occupation of the country, which ended in
1943.162 Most recently Britain has had to pay reparations in the sum of £19.9
million to the Mau Mau Kenya for torturing these people during the Mau Mau
uprising in the 1950s.163 It is therefore clear that the concept of reparations is firmly
established and actively pursued by states, on behalf of their injured nationals,
against other wrongdoing states.164 Furthermore, the entire body of tort law is
based on the understanding that those who suffer wrongs should be compensated
and that political expediency and moral doubt out not to preclude the onward march
of justice and its conclusion in a fair settlement.165 However, though there was
money for slave-owners, the enslaved people freed in the 1830s when Britain ended
slavery received nothing from the government in compensation for generations of
forced labor,166 and up to this day is yet to receive even an apology from these
European countries. This was the greatest crime committed by the British state
against the African people.167
As news of CARICOM’s reparations desires began circulating, a certain
uneasiness crept into the minds of even those with some basic legal knowledge. This
uneasiness concerned the fact that all the victims of slavery or native genocide must
have perished by now. So how was CARICOM going to overcome the hurdle of
establishing itself as the claimant in this lawsuit on behalf of citizens of its Member
States? These citizens are the descendants of the victims of these atrocities.
However, international law does not recognize any legal barrier to prevent those
who still suffer the consequences of crimes against humanity from claiming
reparations, even though the crimes were committed against their ancestors.168
Whether the descendants of the immediate victims of a crime have a right to
reparations, will depend on the nature of the claim being made. The Austrian
payment, for example, was to survivors of the concentration camps, again to make
reparation for the physical and mental agony of the concentration camps. If a victim
died before the claim was agreed, his claim died with him, since the pain and
161 United Nations Security Council Resolution 687 of 3rd April 1991 provides that “Iraq...is liable under
international law for any direct loss, damage, including environmental damage and the depletion of natural
resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful
invasion and occupation of Kuwait”. See UN Compensation Commission. [Internet] Available from:<
http://www.uncc.ch/introduc.htm> Accessed on December 20, 2013.
162 The New York Times: Italy agree to pay Libya $5 billion [Internet] Available from: <
http://www.nytimes.com/2008/08/31/world/europe/31iht-italy.4.15774385.html?r=0>Accessed on December 20,
2013. 163 The Voice: UK Government Blocks Caribbean Reparations Bid [Internet] Available from: <
http://www.voice-online.co.uk/article/uk-government-blocks-caribbean-reparations-bid> Accessed on Friday
October 18th 2013.
164 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
165 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 23 166 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 159
167 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,
Jamaica: University of West Indies Press p. 159
168 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
25
suffering were personal to him. For instance, the Order made under the British
Foreign Compensation Act of 1950 provided that the Foreign Compensation
Commission was to treat as established any claim relating to certain property in
Egypt which had been sequestrated by Nasser’s government if the applicant was the
owner “or is the successor in title of such owner”, making it plain that the children
and the grandchildren of the original dispossessed owners were entitled to claim.
Since the unification of Germany, the sons and daughters of property owners, whose
lands were seized after the German Democratic Republic was created, have pursued
claims successfully. No one doubts their right to claim, even though they may have
been children, or even unborn, when their family’s land were taken over. Claims
have been made not only by descendants, but by the nation state which has had to
bear the burden of paying for the consequences of the crime. As stated above, Israel
successfully claimed reparations from West Germany for the costs of resettling
Jewish refugees–even though the state of Israel did not yet exist at the time when
the Nazi regime committed its crimes against the Jews. It is also significant that
West Germany, which felt obliged to meet the claim, was also a different state,
territorially as well as politically, from the German Reich which was responsible for
the atrocities.169 If international law harbors this level of ingenuity and creativity, to
allow a state, which was not, created at the time an atrocity was committed to
successfully claim against another state whose frontiers were fundamentally
different at the time the atrocities were committed; then it should not take any feat
of genius to allow an IO that is representative of the interest of its Members States
to bring claims against states who are more or less the same today as when these
atrocities were committed. In principle, therefore, the passage of time since slavery
ended should be no barrier to CARICOM’s claim provided that it can be established
that the consequences of the crimes of slavery and native genocide continue to
manifest themselves to the prejudice of Caribbean people living in the Caribbean
today and the Diaspora. On this point, the evidence of historical experts is clear and
unequivocal.
CARICOM’s reparations agenda should be directed against the governments of
those countries, which promoted and were enriched by the slave trade and the
institution of slavery. While this IO has done just that, in seeking reparations from
Britain, France in relation to Haiti and the Netherlands in relation to Suriname, it
is the author’s opinion that Spain should be included for its role in the decimation of
the native population of Jamaica. Moreover, here it is more appropriate to
concentrate on the Governments o the countries, which encouraged and supported
the slave trade, which legitimized the institution of slavery, and which has profited
as a result. While it would be possible to identify individual companies which could
be proved to have made vast profits from slavery, and there are plantation owners in
Jamaica, and titled families in England, whose living heirs owe their wealth to
slaving, should these individuals be pursued, the process would inevitably be
somewhat arbitrary, and potentially oppressive, and it would be rejected both by the
targeted individuals themselves and their governments as these defendants had not
perpetrated any wrongs. In the author’s opinion, the reasons why the ‘Defendants’ to
the reparation claim should be governments, are that it is governments which have
169 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
26
some measure of control over their national wealth, through their reserves and their
taxation powers; it is governments who must in the end be persuaded that
reparations are to be paid as a matter of justice; it is governments who can
determine whether the debt burden of CARICOM Member States should be forgiven;
and it is governments which are responsible for making international treaties and
implementing them through the passage of laws.
VII. CONCLUDING REMARKS
The forgoing has considered the legitimacy of CARICOM’s reparations claim. It
has considered the atrocities of native genocide of the region’s native peoples and
slavery and the transatlantic slave trade, which have both been summed up as
crimes against humanity. It has considered the consequences of these atrocities on
the Caribbean region today, revealing that the poor economic performance of most
CARICOM Member States is a direct consequence of the economic exploitation of
these territories during the colonial era. It has considered the origin and evolution of
CARICOM, which emerged in an effort to foster a greater degree of integration
among these islands. The debate focused on the ten-point plan in CARICOM’s claim
for reparations as set out by CARICOM’s legal representatives. It then focuses on
the legal claim for reparations. Presenting evidence from both sides of the divide
reveals that like most areas of international relations, considerations of this claim
differ significantly. Notwithstanding this, it is the author’s opinion, for the reasons
aforementioned, that these 14 Member States have a valid legal claim against these
three European countries and CARICOM is the ideal medium for bringing this claim
for reparations. What is less clear is whether IOs such as CARICOM, may pursue
such claims on behalf of their Member States. Representative of the welfare of its
Member States, not only is CARICOM’s Conference of the Heads of Government
endowed with the power, by virtue of Article 12 of the Revised Treaty of
Chaguaramas 2001 to bring this reparations claim; it is also the best means of
bringing a claim on behalf of 14 countries, which span three different languages in
terms of unity, organization, cost-effectiveness and political influence. Moreover, as
previously stated, international law has never been static. New structures have
often been devised to give effect to recognized principles. So, notwithstanding the
unique, massive and multi-faceted nature of the claim, and the fact that creative
and imaginative international jurists will be needed; once the claim is well-founded
in legal principle, and well-recognized by the international community, remedies
and mechanisms will be found.170 If successful, this claim will mark a major
milestone in the fight for a true racially equal world. It will go a long way in putting
to rest the claim of black people that the world is biased against their interests, and
foster greater concern for minority indigenous populations worldwide. Native
genocide of the Caribbean’s native peoples and slavery both constituted two to the
vilest crimes against humanity. In relation to the genocide of the Caribbean’s native
peoples, it has been said that this constitutes an attrition of population in real
numbers every bit as great as the toll of twelve to fifteen million about half of them
170 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available
from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.
27
Jewish most commonly attributed to Himmler's slaughter mills.171 The proportion of
indigenous Caribbean population destroyed by early European settlers in a single
generation is, no matter how the figures are twisted, far greater than the seventy-
five percent of European Jews said to have been exterminated by the Nazis.172 One
issue of contention remains, however, namely in considering the issue of Native
Genocide, Spanish colonizers was the pioneers of this inhumane practice. While it
may be said that no country formally colonized by Spain is a CARICOM Member
State, the Spanish were responsible for the decline of the native Taino population in
Jamaica. Therefore, it seems illogical to not include a key pioneer of both of these
inhumane practices in this reparations bid.
171 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available
from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013
172 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available
from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013