BY AKIN OYEBODE
The transatlantic slave trade is one of the most sordid episodes in human history, an event during which Africa endured a hemorrhage of its human resources and occasioned incalculable damage and destabilization of its social structure and political economy, reverberations of which are still being felt even till today.
There has been a sustained demand by concerned Africans, great-grandchildren of direct victims of the unholy traffic as well as sympathizers and men and women of goodwill across the world for some compensation in atonement for what is indeed a crime against humanity, more vicious than the Holocaust for which some reparation had actually been paid.
It is intended to interrogate the legal aspects of the slave trade vis-├á-vis international law with a view to highlighting the burden of the past on offending States and their liability to make recompense for their atrocious crimes against the African peoples and their cousins who had been forcibly trans-shipped to distant lands, occasioning thereby massive loss of life, unrelenting dehumanization, cultural genocide, psychological trauma, total disorientation and innumerable other cruel and unconscionable acts in quest of imperialist greed and exploitation.
More concretely, analysis of the heinous act of turning Africa into "a warren for the hunting of human skins" would be conducted within the context of intertemporal law as well as contemporary international law in order to attain a balanced view on the activities of the marauders and desperados that ravaged the African continent. The notion of "willing seller, meets willing buyer" would be subjected to critical analysis in order to adumbrate the odious character of the transaction and establish responsibility for the nefarious act of trafficking in human beings.
The question of state responsibility in relation to the slave trade involves a number of issues such as who is entitled to espouse the claims of the iniquitous trade, who should be the respondents in such claims, what is to be the quantum of damages and who should be the beneficiaries thereof? Furthermore, even if it was perhaps too late in the day to envisage criminal liability for the slave trade, is admission of guilt by the successors to the perpetrators of the crime, followed by apology and remission completely inconceivable?
Accordingly, the legal issues thrown up by the transatlantic slave trade are sufficiently intriguing to warrant academic study and inform policy formulation especially by the African States and Africans in the Diaspora, hence the thrust and purpose of this presentation.
LEGAL DIMENSIONS OF REPARATIONS FOR THE TRANSATLANTIC SLAVE TRADE*
By AKIN OYEBODE**
The transatlantic slave trade is, quite definitely, the ugliest page in human history. The capture and forcible trans-shipment of millions of Africans to the New World was an unprecedented act of savagery and man's inhumanity to man which has left in its wake searing pain and traumatic feelings of self-hate, misery, incalculable disorientation and cultural genocide among the victims. Even today when there are voices counseling that the successors of the casualties of the crime forgive and forget, the cries for some atonement for the atrocity are steadily rising. A Pope might express apologies for the atrocity of the slave trade on visiting Goree island but the cries of the aggrieved are for more, demanding different typesof compensation for the crime and the racial discrimination and deprivation suffered by men and women of colour in different parts of the world as a result of the badge of infamy which the slave trade represented.
Admittedly, the reparations crusade has suffered some setback in the recent past, especially after the demise of its chief promoter, M.K.O. Abiola in a most unwholesome of circumstances. Yet, the issue has bounced back to the front-burner of international discourse and maintained its cogency in a world that now seems anxious to recognize the burden of the past and the necessity to make amends in a bid to shore up the prospects for a kinder and gentler co-existence among different races and peoples.
It is against this background that it is intended to re-visit the quest for reparations. Specifically, an attempt would be made to unravel the international legal dimensions of the crusade for reparations for the transatlantic slave trade. The concept of reparations in international law is of a particularly important dimension, more so as protagonists of intertemporal law contest the application of contemporary international law to events of a bygone era. Aside from this, problems have been raised concerning who is entitled to make a claim for reparations and the computation of the compensation for the loss suffered if the relief sought was to be in monetary terms.
The Transatlantic Slave Trade as a Crime against Humanity
It should be immediately stated that the perpetrators of the heinous act of trading in human skins saw nothing wrong or unconscionable in the transaction. The triangular trade in manufactured goods, human beings and raw materials they saw as a perfectly legitimate business, regardless of the resultant commoditization of human beings. The requirements for the consolidation of a burgeoning capitalist mode of productions compelled the jettisoning of issues such as morality and elementary considerations of humanity in the quest for profit. The logic of primitive accumulation dictated the brutality of the transatlantic slave trade without which the growth and development of British cities such as London, Liverpool, Bristol, Southampton, etc. would well-nigh have been impossible. As Marx had reminded us, the needs and interests of capitalism at the stage of primitive accumulation of capital were such that it became mandatory to convert Africa into a warren for the hunting of human skins.
From the "slave coast" or what later came to be known as Nigeria, it has been estimated that over two million souls were shipped to the New World between 1680 and 1786. The particularly inhuman practice of the British of deliberately separating slaves in a bid to forestall uprisings and rebellions unlike the policy of Portuguese and Spanish slave dealers who generally did not disrupt and dislocate African slaves, occasioned a disconnect of African slaves in British-owned plantations from their languages and cultural heritage. Aside from the untold hardship suffered by slaves during the passage, British slave dealers and operators of the plantations in the New World were particularly vicious in their attitude towards their hapless slaves which spurred the crusade of the abolitionist movement to put an end to what was considered a sinful and unholy traffic.
It must be pointed out, however, that the termination of slavery and the slave trade in Britain and its colonies was brought about more by socio-economic considerations than any moralistic or religious motivation. The needs of an industrializing Britain warranted the cessation of trans-shipment of Africans to the New World and their retention in Africa in order to harness their labour for the production of raw materials to feed the hungry factories of England and secure their territories as market for manufactured goods. Admittedly, the extirpation of the slave traffic at source became the pretext for the dispatch of a naval squadron to the West African seaboard while the British laid the foundation for the colonization of the various territories over which it held sway and was able to assert dominance vis-├á-vis rival claimants at the Berlin Conference in 1884-5.
In spite of the fact that the Treaty of Versailles had railed against the slave trade, it is worthy of note that it stopped short of declaring it a crime against humanity perhaps in consequence of the fact that slavery and the slave trade like piracy jure gentium were generally frowned upon under classical international law. The conscience of Europe and America might have been pricked by the iniquity of the slave trade but in an age of colonialism and imperialism, the characterization of the slave trade as a crime for which the perpetrators might be liable lay further afield. It took the collapse of the world colonial system heralded by the right of self-determination to compel a rethinking of this blot on our common humanity. Even then, there are still voices that glibly aver that it was better to consign things like slavery and the slave trade to limbo, more so as acts or events that occur need to be assessed in the context of the prevalent law when the incidents occurred.
However, if it is admitted that the forcible trans-shipment of millions from their habitat to work on cotton and sugar plantations thousands of miles away was a criminal act bordering on an assault against our common humanity, then the act should be deemed a crime against humanity with all the consequences arising thereof such as non-application of time limitation and transmission of liability to successors. In effect, it is submitted that the slave trade should be considered a crude and heinous crime against the African people who had been forcibly relocated from their homesteads to far-flung corners of the globe in order to satisfy the economic needs and greed of their European and Arab captors and for which state responsibility should be engaged.
The Slave Trade and State Responsibility in International Law
Ordinarily, state responsibility entails the liability of a State for a delict or infringement in international law, that is to say, the assumption by a State of the obligation to make recompense for an infraction attributable to it in consonance with the maxim, Ubi jus, ibi remedium. As stated by Judge Max Huber in the Spanish Zones of Morocco claim,
"...responsibility is the necessary corollary of a right.
All rights of an international character involve international
responsibility. Responsibility results in the duty to make
reparation if the obligation in question is not met."
Also, later in the Chorzow Factory case, the Permanent Court of International Justice held that:
"[It] is a principle of international law, and even a greater
conception of law, that any breach of an engagement
involves an obligation to make reparation..."
The implication of the foregoing is that if it can be established that the transatlantic slave trade was engaged in by agents or privies of identifiable States or that the States in question had encouraged or connived with the slave dealers and transporters, it would not require too much imagination to make a case against such States. The possible defence by the States concerned that they had acted in concert with African suppliers and middlemen cannot absolve them from engaging responsibility under international law for the nefarious activities of their nationals. Neither can a defence be erected on the basis of intertemporal law if there is a consensus in the international community today that remedial action was needed in order to wipe off these odious pages of human history in a bid to put in place a new foundation for international relations bereft of race supremacist tendencies anchored on mutual respect, love, amity and brotherhood between and among the various peoples, races and nations of the world.
The necessity for a mea culpa by those nations that profited from the atrocities of trafficking in human beings across continents is reinforced by the new awareness across the world to assume responsibility and make amends for tragedies of the past, be they connected with slavery, colonialism, the Holocaust, iniquities perpetrated against Amerindians, the aboriginal population of Australia or indeed the comfort women of Korea. The new awareness across the world to put some balm on the wounds of previous generations must be extended to perhaps the gravest act of man's inhumanity to man-the transatlantic slave trade.
Legal Dimensions of the Quest for Reparations for the Slave Trade
On a preliminary note, is apposite to delve into the issue of who are, or should be the applicants and respondents of claims for reparations for the slave trade. While it is conceded that the responsibility for the crime should be partly borne by the African intermediaries, the bulk of the blame for the re-location of millions of people away from the African continent should be placed squarely in the court of States of nationality of the traffickers as well as the flag states of the various transport vessels.
The principle that a State answers for the infelicities and indiscretions of master and crew of vessels plying the high seas is nearly as old as the law of the sea itself. It bears restating that it is on account of non-allegiance to the nationality of any State by pirates their ships fall under the jurisdiction of all States since pirates are deemed hostes humani generis even under classical international law. As common enemies of humanity, pirates are subjected to universal jurisdiction, a position that was later extended to slave traffickers. By necessary implication, therefore, vessels registered under the laws of particular States and flying the flags of such States approximate the personality of such States under the floating territory doctrine and, therefore, create, by their actions or omissions, responsibility for States whose flags they flew. Accordingly, failure by the flag states to timeously proscribe the slave trade and arrest and punish their nationals who had engaged in the illicit traffic rendered such States liable under international law.
As for those capable of initiating claims for the slave trade, it is submitted that the direct victims who found themselves involuntarily in the New World, their descendants and their cousins on the continent who had to endure untold privations occasioned by the destabilizing effects of activities of the slave raiders can also sustain claims against perpetrators of the crime. Of course, since the primary offenders are no longer available, the inheritors and successors-in-title, whether States or families, to whom tremendous wealth had accrued from the odious trade should be held liable for the unholy traffic.
The forms of state responsibility are pretty well established in international law-satisfaction, restitution and reparation or compensation. Whereas satisfaction or apology might suffice for insult, demeaning conduct or loss of dignity, restitutio in integrum avails where and when, for example, demand is made for a stolen or looted property. However, where the damage or injury cannot be redressed either by satisfaction or restitution, recourse would have to be made to compensation or reparation. As the Permanent Court of International Justice declared in the Chorzow Factory case,
"The essential principle contained in the actual notion of an
illegal act is that 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."
Accordingly, reparation is intended to obliterate the damage or injury in so far as money can do so since it is practically impossible to restore things to the situation existing before the damage, loss or injury. With particular reference to the slave trade, it becomes necessary, therefore, to compute in monetary terms the loss to the continent and the injury inflicted on the hapless victims of the traffic, bearing in mind inflation and other supervening financial variables spanning the period between the time of the crime and contemporary times. The sharing formula for whatever reparation is extracted is a matter best left to the claimants themselves.
While the issue of reparations for the slave trade had ignited some controversy among interested parties, the misgivings and acrimony surrounding the matter should not becloud the justification and appropriateness of the demand. The deleterious fall-out of the slave trade in relation to the direct casualties of the crime and the loss of self-esteem, racial pride and wholesomeness of black people everywhere are issues that cannot be glossed over. Mere admission of guilt and expression of apology by powers deemed guilty of the crime would go a long way in assuaging the loss and suffering of the black population inhabiting the West as well as their cousins in the Motherland who have had to endure painful feelings of inferiority and loss of self-esteem arising from the fact of enslavement and humiliation of their forefathers.
On account of the foregoing, the recent decision by the African Union to resuscitate work on the demand for reparations is a most salutary development. The inertia that was experienced within the ranks of the defunct Organization of African Unity in relation to the work of its Group of Eminent Persons on Reparations would now, hopefully, give rise to a new resolve to put the matter on the front-burner of international discourse. Accordingly, the demand for apology from the West and Arab world for their crime against the African peoples should be accompanied with a request for payment of reparations in final settlement for the colossal suffering occasioned by the slave trade. Anything less is simply unacceptable.
The demand for reparations for the slave trade is just and reasonable. In fact, it is in the interest of the perpetrators and successors to the crime that the matter be speedily addressed in order to turn the page on the unequal and distasteful relationship that had existed especially between the West and Africa. This relationship which has been severely criticized by scholars as unequal, exploitative and socially demeaning underscores the necessity for a redress in order to put things on an even keel. There is an inexorable link between the slave trade, colonialism and neo-colonialism, an understanding of which is necessary in order to correctly apprehend the dire socio-economic and political circumstances of contemporary Africa and the African Diaspora. Indeed, as Chinweizu has observed, the unequal relationship between Africa and the West had endured with only the items of trade changed from slaves to primary commodities and from gin, mirrors and finery to mercedes benzes, television sets, armoured tanks and jet planes.
In sum, the aggrieved must summon the resolve to cry out loud and clear for reparations for the harm done them. Aside from the fact that nothing ventured, nothing gained, they should be at one regarding the justness of their demand and their ultimate victory in compelling their traducers to make amends for past transgressions. What is more, they have history on their side as well as the empathy and understanding of the rest of the world.
Undoubtedly, the transatlantic slave trade is one of the most reprehensible acts in human history. The forcible trans-shipment of millions of people from their habitat to distant, foreign lands for enslavement and exploitation by greedy and inhuman Arab and European slave merchants occasioned incalculable anguish and psychological trauma to the slaves and their descendants who have had to live with the blemish of slavery for centuries.
Admittedly, the sale and purchase of human beings was carried out by both the African and Arab raiders and European dealers but it needs be admitted that if there was no willing buyer, there could hardly have been a willing seller. Nevertheless, it is submitted that the European traders bear primary responsibility for the heinous trade. The states of nationality of the traders and flag states of the slave ships engage responsibility for their connivance and protection accorded the traders in their various voyages and their illicit cargoes.
It is suggested that the slave trade be considered a crime against humanity which would ipso jure and ipso facto render the trade actionable without limitation of time and with successors to the perpetrators thereof liable for satisfaction and, or reparation under international law. Accordingly, the demand for reparations for the slave trade should be intensified, more so as it is not without precedent in history and bearing in mind the fact that it enjoys the support and understanding of progressive humanity.
* Paper delivered at the International Conference on Slavery, Slave Trade and Their Consequences, organized by the Centre for Black Culture and International Understanding at the Royal Park Hotel, Iloko-Ijesha, August 23-26, 2010.
** Professor, Department of Jurisprudence and International Law, University of Lagos, quondam Vice-Chancellor, University of Ado-Ekiti.
 K. MARX, CAPITAL, Vol. 1, p. 751 (1965).
 M. CROWDER, THE STORY OF NIGERIA 53 (1978); A.C. BURNS, HISTORY OF NIGERIA 107(1978). Cf. also A. B. Oyebode, Treaty-making and Treaty Implementation in Nigeria: An Appraisal, unpubl. doctoral dissertation, Osgoode Hall Law School, York University, Toronto, Canada (1988), at p.12.
 Cf. E. WILLIAMS, CAPITALISM AND SLAVERY (1944) passim.
 Cf. T.O. Elias, The Doctrine of Intertemporal Law, 74 Am. J. Int'l L. 285 (1980).
 See the Spanish Zone of Morocco claims, 2 RIAA (1923) at p. 615.
 PCIJ, Series A, No. 17 (1928) at p. 29.
 See, e.g., I. BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW, 6th ed. (2003), pp. 443 et seq. M.N. SHAW, INTERNATIONAL LAW, 6th ed. (2003), p. 715.
 Note 6, supra at pp. 47-8.
 See, e.g., W. RODNEY, HOW EUROPE UNDERDEVELOPED AFRICA (1972), pp. 246-61; S. Amin, Underdevelopment and Dependence in Black Africa: Historical Origins, 2 J. Peace Research (1972).
 Cf. F. FANON,THE WRETCHED OF THE EARTH (1967), pp. 77-81; CHINWEZU, THE WEST AND THE REST OF US (1974), p.75; O. OHONBAMU, PSYCHOLOGY OF THE NIGERIAN REVOLUTION( 1969), pp. 77-81.