Columns

Reparations agenda has recourse in international law

BY VICTOR BARRETT

Tuesday, June 24, 2014    

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PREVIOUSLY, reparation was a concept, now it's a discussion. We have seen recently where Caricom leaders accepted a 10-point plan for negotiations with the European nations. Among other things, it seeks a formal apology, debt forgiveness, and unspecified financial damages for the persisting "psychological trauma" from the days of plantation slavery. Many whose ancestors were not held as slaves would much rather the topic go away. Unfortunately, we know that just because a topic is difficult or uncomfortable does not mean it should not be dealt with.

Reparation is a principle of law that has existed for many years, referring to the obligation of a 'wrongdoing' party to redress the damage caused to the injured party. Prime Minister of St Vincent and the Grenadines Ralph Gonsalves said: "The awful legacy of these crimes against humanity, a legacy which exists today in our Caribbean, ought to be repaired for the developmental benefit of our Caribbean societies and all our peoples."

Under international law, "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." See Corfu Channel Case, (UK v Albania)

The right to reparation is a well-established principle of international law. The International Law Commission affirmed this principle in its 53rd Session when it adopted the draft articles on responsibility of states for internationally wrongful acts. The right is also firmly anchored in international human rights treaties and declarative instruments, some of which are: the Inter-American Convention on Human Rights (Articles 25, 63 (1), and 68); the Universal Declaration of Human Rights (Art 8); the International Covenant on Civil and Political Rights (Arts 2(3), 9(5), and 14(6)). Jurisprudence has also added to the legitimacy that reparation has a place in international law. See ruling of the Inter-American Court of Human Rights in the Velásquez Rodríguez Case, Serial C, No 4 (1989), par 174, also in the Chorzow Factory Case (Ger v Pol), (1928) the Permanent Court of Arbitration opined: "It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form."

In 2005, the UN General Assembly sought to codify the norms relating to the right to reparation by adopting the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian law. (Resolution 60/147,16/12/2005)

As for the achievement of full 'restitutio in integrum', paragraph 8, of Resolution 60/147 mentioned above, provides that the term victim includes those who have individually or collectively suffered harm, and may include the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.

For those who argue about precedent in international law, this was clearly adduced by Professor Beckles of the University of West Indies, who noted that the first reparation case was that of Haiti where, under an 1825 'agreement', Haiti was forced to pay 150m gold French francs (about US$21 billion in today's money) to France. The second historic reparation case occurred in 1834, when slave masters argued that the freeing of enslaved people by British legislation was a violation of their property rights and demanded compensation. Germany paid for the Holocaust. The Americans paid the Japanese for loss of property in World War II (1939-1945). The British recently paid £19.9m in compensation for Kenyans (Mau Mau) who were tortured in the 1950s and 60s rebellion.

In concluding, while slavery was not only legal, it was condoned in the Bible (Leviticus 25:44-46), it is not difficult to argue that, regardless of what the law stated at the time, slavery was a horrible and despicable act against black people. Therefore, for those sceptics who argue that Caribbean people are just looking money, and the Rastafarians want a free ride to parts of Africa, I submit they are misguided. Trod on, Caricom.

Victor Barrett is a Jamaican student at the University of the West Indies Faculty of Law, Cave Hill Campus, Barbados. vicbar5@gmail.com

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