Submission to the UN Committee on the Elimination of Racial Discrimination (CERD) on Reparations for the Enslavement of Africans

As Nora Wittmann has highlighted, it is essential that any examination of the illegality of the system of chattel slavery not "rely on a perpetrator's assessment to define the legal status of a crime or violation of the law". Her own and others' research, presented at the American Society of International Law's Symposium in 2021 (external link), demonstrates that there was considerable resistance to chattel slavery as practised by European governments and that it was considered unlawful by other countries. It is also important to note discriminatory contradictions within laws in countries such as England, which prohibited chattel slavery but then created a racist exception through 'slave laws' in its colonies to treat Africans as property. Any survey of state practice therefore has to be global and avoid over-reliance on sources originating from countries that carried out chattel slavery.

To the extent that the Committee is going to address this question in the proposed General Recommendation, we suggest it also focus on states continuing to practice chattel slavery in the 18th and 19th centuries despite their own explicit recognition that it violated natural laws. The Declaration of the Powers, on the Abolition of the Slave Trade, of 8th of February 1815 (external link) was signed by Austria, Great Britain, France, Prussia, Russia, Spain, and Sweden. It recognized that the 'slave trade' was "repugnant to the principles of humanity and universal morality". The Treaties of Paris, entered into by France bilaterally with Great Britain, Austria, Prussia and Russia, in 1815, contained an article committing the parties to the entire and definitive abolition of the slave trade, "a commerce so odious, and so strongly condemned by the laws of religion and of nature". The failure of governments to actually enforce their treaty commitments domestically and in their colonies must be assessed in light of their own proclamations that the slave trade was inhumane and violated universal morality and natural laws. This must also be viewed from a broader comparative perspective that only Europeans practised chattel slavery in a form where over 15 million people were brutally stolen from their countries, dehumanized on the pretext of their race, and entirely stripped of all rights. When put together, it seems difficult to sustain claims that those governments did so believing that chattel slavery was legal according to the general principles of law recognised by civilized nations at that time. 

European governments and settler colonies developed and promoted notions of racial superiority to justify chattel slavery, colonisation, and the extermination of Indigenous Peoples in many countries.  

Even when governments chose to abolish chattel slavery acknowledging its wrongfulness, they did not provide any reparations to the people who were enslaved. It is notable that France (external link), Great Britain (external link) and the US (external link) only paid compensation to slave owners and not to people who were enslaved. Great Britain and the US also forced enslaved people to work for former slave owners, for example as apprentices (external link) in Great Britain and Sierra Leone (where children were long kept as apprentices) or using systems such as sharecropping (external link) in the US. These actions were justified (external link) by many of the same racist concepts that had previously justified slavery; the need to civilize Africans, doubts about their capacity, and the right to make decisions about them as 'property'.   

No reparations were provided to countries whose people were enslaved and forcibly deported or killed to enable the slave trade or clear land for plantations based on slave labour. In one of the worst examples, Haiti (external link)was made to pay 112 million francs (estimated to be the equivalent of US$560 million at current values) to France as compensation for lost revenues from slavery as a condition for France to recognise its independence. Haiti had to borrow money, to make payments to France for over a century, locking it into a cycle of debt that fundamentally undermined the country's economic development. It has been argued that the impunity of the slavery period also helped fuel the direct colonization of Africa as a more profitable and controllable means to dominate and exploit African people and resources.  

The historic failure of governments that practised chattel slavery to repudiate racist ideologies combined with the lack of reparations to formerly enslaved people lie at the very heart of systemic racism and inequality in those countries. They have resulted in accumulated disadvantages as well as discriminatory laws and policies, based on race. A stark example of this is Belgium's abduction of mixed race (Métis) children (external link) from their mothers in its colonies in the Great Lakes region. This practice, which continued till Burundi, Congo, and Rwanda gained independence was based on a desire to preserve the 'natural' supremacy of the European race. Despite long campaigning by the mothers and the children themselves, Belgium is yet to provide effective reparations.  

 At the level of states, it has contributed greatly to inequalities (external link) between former colonial powers and colonies, increased countries' vulnerability to the climate crisis (external link), and reduced the ability of governments of former colonies to realize human rights within their countries.   

The preamble of the International Convention on the Elimination of All Forms of Racial Discrimination refers to the need to bring to a speedy and unconditional end to colonialism and all practices of segregation and discrimination associated to it. Article 2 requires parties to eliminate racial discrimination in all its forms. At the very minimum, states parties are therefore required to provide reparations for their failure to eliminate the systemic racism and inequality arising from their inadequate remediation of chattel slavery and its legacies.   

Colonialism

We request the Committee to maintain a focus on the link between colonialism and chattel slavery in the General Recommendation and to provide guidance on the obligation to provide effective reparations for the continuing cumulative harms of both practices. This is not in any way intended to diminish the focus on the harms arising from chattel slavery and the transatlantic slave trade as systems. However, as the background to the call for inputs (external link) notes, the system of chattel slavery and the resulting massive gross abuses of human rights that followed were enabled and facilitated by colonialism and the two are intrinsically related. Professor Beckles has analysed how the system of chattel slavery was developed to grow wealth in Europe through exploiting an alternative and massive pool of labour in a manner which could be guaranteed to be profitable. This went hand in hand with clearing Indigenous Peoples from their lands to build plantations and/or for colonial settlements and was enforced with the full power of European states.

Charles Mills has described it as a 'racial contract' which is "calculatedly aimed at economic exploitation". He notes that exploitation linked to colonialism and slavery led to Europe's economic hegemony and "closed off this development path for others because it forcibly inserted them into a colonial network whose exploitative relations and extractive mechanisms prevented autonomous growth". An example is the CFA Franc (originally the Franc of the French Colonies in Africa) which is used by 14 countries in West and Central Africa. Dr. Ndongo Samba Sylla (external link) has described how financial compensation to French slave owners was used to set up colonial banks under the authority of the Bank of France and monetary arrangements which are still pegged to the French currency to this day. They therefore favour French and other Euro imports to the detriment of exports as well as free investment and repatriation of French capital. "The purpose of this 'monetary arrangement' from its origin to the present day is to maintain satellite economies that are 'complementary' to the French economy. That is, economies that serve as cheap sources of raw material supplies and captive outlets."   

It is the toxic combination of racist laws and structures and inequitable economic models, rooted in extracting wealth (external link) from the exploitation of natural resources and labour (external link) of people of particular races, which underlie the continuing harms of chattel slavery and colonialism. The UN Special Rapporteur on Racism and the Working Group of Experts on People of African descent have highlighted the persisting legacies of this toxic combination in the forms of underdevelopment, marginalization and economic exclusion, and vulnerability to the climate crisis.

It may feel overwhelming to define the scope and content of the right to reparations for the historical injustices of chattel slavery and its ensuing harms. There is no comparable parallel that the Committee can draw on given the number of people harmed, the nature of the harms, and the scale of impacts in terms of systemic racism and structural inequalities. Repairing and stopping these harms requires innovation and a deeper level of focus on a wide array of institutions and policies that are creating inequalities within and between countries.   

As the former UN Special Rapporteur on Racism has stressed, in "addition to implicating individual wrongful acts, reparations for slavery and colonialism implicate entire legal, economic, social and political structures that enabled slavery and colonialism, and which continue to sustain racial discrimination and inequality today."  We urge the Committee to adopt a comprehensive and transformative approach to address both systemic racism and structural economic inequalities arising from chattel slavery and colonialism in the General Recommendation.   

Transformative Reparations

There are important lessons from transitional justice (external link) and also from activists who have worked on the gender dimensions (external link) of reparations. They stress the need for reparations to be transformative and address the underlying structures and systems that gave rise to the violations.   

The jurisprudence of the Inter-American Court of Human Rights also contains key innovations that the Committee can draw on. In its Cotton Field (external link) judgment, the Court laid down the principle that in the context of structural discrimination, "reparations must be designed to change this situation, so that their effect is not only of restitution, but also of rectification. In this regard, reestablishment of the same structural context of violence and discrimination is not acceptable" (para 450). The Court has interpreted the requirement of guarantees of nonrepetition to require a wide range of reforms of policies and practices to address structural failures that enabled the violation. The Court has also ordered collective reparations. It has considered damage at both the individual and community levels in cases involving Indigenous Peoples and acknowledged the need for a participatory approach in the design of collective reparations. It has also recognised a wide range of harms. We urge the Committee to adopt a similar approach and to spell out the obligation of states to change underlying structures, policies and/or patterns of allocation of resources to ensure cessation and guarantees of non-repetition.   

Structural Inequalities

Formerly enslaved people were left in the most precarious of economic and social positions at the point of abolition of slavery. Instead of repairing the harms they had inflicted, governments of countries such as the US used Jim Crow and other laws to keep Black people in the most poorly paid and undervalued occupations. These patterns of discrimination and perpetuation of economic exploitation were maintained well into the 20th century by excluding people of colour or the occupations they were concentrated in, from labour laws and New Deal programs and policies. This systemic racism also manifested in the health system because Black workers did not have access to health insurance (external link), and in education (external link) and housing (external link) through racial segregation or practices such as redlining. It has resulted in Black people and other people of colour disproportionately bearing the impacts of climate change (external link), natural disasters, (external link) pollution (external link), and the COVID-19 pandemic (external link). The Committee has highlighted these persistent racial inequalities in the enjoyment of economic, social and cultural rights (ESCR) and their links to lingering legacies of colonialism and slavery in its concluding observations (external link) to the US government in 2022. Similar patterns of structural inequalities in access to ESCR can be found  in other countries which practiced chattel slavery and chose not to remediate its harms, instead perpetuating patterns of racial discrimination.   

The Basic Principles and Guidelines on the Right to a Remedy and Reparation (external link)remain a useful resource that the Committee can draw upon. However, we would also encourage the Committee to adapt and expand the scope of the Basic Principles to be able to fully address the range of factors creating structural inequalities. This requires a shift to incorporating broader measures within each of the forms of reparations to explicitly address underlying structural factors and collective dimensions in addition to individual remedies. To ensure cessation and guarantees of non-repetition in contexts where there is systemic racism and persistent racial inequalities in the enjoyment of ESCR, we would urge a deeper focus on structures and mechanisms (public and private) which affect access to resources.  

An intersectional approach is essential to address overlaps with multiple forms of discrimination, including gender, disability, religion, national origin, and economic status. While the focus of the General Recommendation is on the right to reparations for people of African descent, we would suggest that it also focus on Africans given the ongoing harms they experience because of the legacies of chattel slavery and colonialism. It would also be useful for the General Recommendation to highlight that the same structures of systemic discrimination may impact other people of colour as well.

The legacies of chattel slavery and colonialism have also resulted in broader structural economic inequalities (external link) affecting other post-colonial states where enslaved people were stolen from or settled. These extend beyond the economic impacts of violence and political carnage in countries to enable the transatlantic slave trade, the theft of young people, and the killing of Indigenous Peoples to enable plantations and settler colonies. Though these are complex issues, they require a focus on economic models, including of natural resource use (external link), that were created by colonial powers but have enduring harmful legacies. To name a few, these legacies include food insecurity in former colonies because of the forced shift to monocultures and export crops (external link), increased vulnerability to the climate crisis because of unequal levels (external link)of emissions, and the loss of biodiversity and indigenous systems of agriculture and land management. (external link)

Wealth inequalities within and between countries are also perpetuated by a global financial architecture  (external link)which reflects and maintains a division of power from a time when most former colonies had not gained independence. The continuing net drain of resources (external link) from former colonies hampers the ability of these countries to realize human rights (though they retain responsibility for other factors within their control). To address continuing harms and prevent future harms, the Committee must address these issues within a framework of reparations. Reparation must involve redistribution of wealth and resources within and between countries to tackle persistent inequalities which have resulted because of the continuing harms of chattel slavery and colonialism. At a minimum, this requires that states modify rules and practices which enable these inequalities and use their influence in international decision-making processes to rectify and prevent harms. They must also explore options with affected states for compensation and restitution including to ensure redistribution of resources, using all appropriate modalities. 

Truth-seeking initiatives and Commissions may be a useful tool for countries to consider to assess and publicise the full range of harms arising from chattel slavery and colonialism and also ensure the participation of affected communities in designing reparations proposals. A similar mechanism could also be useful at a global level to consider proposals for reforms for reparations between countries as well as necessary reforms to international financial architecture.