Reparations For Chattel Slavery A Call From The Periphery To Decolonise International Human Rights Law

Nordic Journal of Human Rights
ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/rnhr20
Reparations for Chattel Slavery: A Call From the

‘Periphery’ to Decolonise International (Human
Rights) Law
Ramona Biholar
To cite this article: Ramona Biholar (2022) Reparations for Chattel Slavery: A Call From the
‘Periphery’ to Decolonise International (Human Rights) Law, Nordic Journal of Human Rights, 40:1,
64-95, DOI: 10.1080/18918131.2022.2082042
To link to this article: https://doi.org/10.1080/18918131.2022.2082042
Published online: 26 Jul 2022.
Submit your article to this journal
Article views: 289
View related articles
View Crossmark data
Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=rnhr20
NORDIC JOURNAL OF HUMAN RIGHTS
2022, VOL. 40, NO. 1, 64–95
https://doi.org/10.1080/18918131.2022.2082042
Reparations for Chattel Slavery: A Call From the ‘Periphery’ to

Decolonise International (Human Rights) Law
Ramona Biholar
Faculty of Law, The University of the West Indies, Kingston, Jamaica
ABSTRACT KEYWORDS
Global inequities persist despite the achievements of the human Reparations for chattel
rights project so far, as Kofi Annan highlighted in 2005. Caribbean slavery; the Caribbean;
calls for reparations for chattel slavery are a manifestation of and CARICOM Ten Point
Reparations Plan; backward-
a response to global inequities that affect the Global South in
looking responsibility;
particular. However, when endeavouring to find a footing in forward-looking
international law, and specifically in international human rights responsibility; decolonising
law, reparations calls have been contested and challenged. This international human rights
article proposes a reimagining of the international human rights law; TWAIL
system to offer a legitimate place for reparations for chattel
slavery and thus enable an effective challenge to pressing
injustices such as racial discrimination and its ramifications.
Despite being a region that has been birthed from such profound
historical injustices that still affect the full realisation of human
rights today, the Caribbean and its human rights challenges and
calls for justice have been relegated to and maintained at the
periphery of international human rights law. For that reason, this
article focuses on reparations for slavery emanating from the
Caribbean. Drawing on Third World Approaches to International
Law (TWAIL), it argues that the inability of international legal
systems to respond to historical injustices indicates that the
colonial imagination, constructed on the compass of exclusion, is
still the foundation of international human rights law and of
modern, postcolonial societies. The article thus advocates for
decolonising international human rights law to accommodate a
more inclusive future for human rights.
1. Introduction
Global inequities persist despite the achievements of the human rights project so far, as
Kofi Annan highlighted in 2005. In the Americas, and especially in the Caribbean region,
the calls for reparations for the historical injustices of colonialism, the transatlantic slave
trade, and chattel slavery are a manifestation of and a response to global inequities that
affect the Global South in particular. In many cases such inequities are attributable to the
continued devastating legacies of colonialism and slavery.1 Such legacies, as explained by
E. Tendayi Achiume, the fifth Special Rapporteur on contemporary forms of racism,
CONTACT Ramona Biholar ramona.biholar@uwimona.edu.jm Faculty of Law, The University of the West Indies,
Mona Campus, Kingston, Jamaica
1
Jamaica Information Service, ‘Lord Gifford Makes Case for Slavery Reparations’ (JIS, 31 October 2007). <https://jis.gov.jm/
lord-gifford-makes-case-for-slavery-reparations/> accessed 1 September 2021.
© 2022 Norwegian Centre for Human Rights
NORDIC JOURNAL OF HUMAN RIGHTS 65
racial discrimination, xenophobia and related intolerance, materialize in structural racial

discrimination and oppressive patterns of subordination, making reparations an urgent
matter.2 Hence, the descendants of enslaved Africans bearing the effects of the harms
inflicted on their ancestors are entitled to reparations.3 As Lord Gifford has pointed
out: ‘Today’s governments are not guilty of fostering the slave trade. But they would
be irresponsible if they did nothing to remedy the injustice, the suffering, the poverty
and the racism, which the slave trade and the institution of slavery inevitably engendered
into the present day.’4
Despite their aim to address the serious root causes of the inequities confronting the
countries in the Global South, claims for reparations have not been free from contention
and have met barriers in trying to find a legal footing in international arrangements of
law. This article therefore proposes a reimagining of the international human rights
system to provide a legitimate place for reparations for slavery, enabling an effective chal-
lenge to some of the injustices plaguing the Global South, such as racial discrimination
and its ramifications. It focuses on endeavours seeking reparations for chattel slavery that
emanate from the Caribbean: as a region birthed from such profound historical injustices
that affect the full realisation of human rights in present days, the Caribbean and its
human rights discourses have been relegated to and maintained at the periphery of inter-
national human rights law.
It is also important to explain from the onset that the concept of chattel slavery is used
to refer to chattelisation, a dehumanising process aimed at stripping human beings of
their dignity and personhood. As Patrick Robinson explains, it did not solely entail
the sale of West Africans in the Americas and the Caribbean that made them chattel slaves;
they were chattelized into enslavement upon their capture and sale in West Africa, and con-
tinued to be chattelized through every phase leading to their brutal treatment on the planta-
tions in the Americas and the Caribbean.5
Accordingly, chattel slavery should be understood as a complex process encompassing

Africans’ enslavement, displacement, and commodification through the transatlantic
slave trade, as well as their treatment on the plantation estates. Characteristic of the
system of slavery established in the Caribbean,6 chattel slavery shaped the New World
from the sixteenth to the nineteenth centuries.7 Hilary Beckles demonstrates that the dis-
tinct features of chattel slavery include its specific focus on Africans,8 who were legally
assigned ‘ … the non-human existential form’ of property, with ‘ … no right to
2
UNGA, ‘Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Racial Intolerance, Report of the Special
Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Racial Intolerance’ (2019) A/74/
321 para 25.
3
R Robinson, The Debt: What American Owes to Blacks (Dutton 2000); N Wittmann, ‘An International Law Deconstruction of
the Hegemonic Denial of the Right to Reparations’ [2019] Social and Economic Studies 19.
4
A Gifford, ‘The Legal Basis of the Claim for Slavery Reparations’ [2000] Spring American Bar Association ABA Human
Rights Magazine <https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/human_
rights_vol27_2000/spring2000/hr_spring00_gifford/> accessed 1 September 2021.
5
Patrick Robinson, ‘The Ascertainment of a Rule of International Law Condemning Transatlantic Chattel Slavery’ (Amer-
ican Society of International Law (ASIL) Symposium, online, May 2021) 2 <www.asil.org/events/2021Reparations>
accessed 21 May 2021.
6
H Beckles, ‘The Reparation Movement: Greatest Political Tide of the Twenty-first Century’ (2019) Social and Economic
Studies 11, 15.
7
H Beckles, Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide (University of the West Indies Press
2013) 19.
8
Beckles (n 6) 15–16.
66 R. BIHOLAR
assume a human identity’.9 By focusing on the distinct complex process of chattel slavery,
this article does not intend to discount the multiple forms of injustice and violence on
which the colonial project in the Caribbean was based, and which included indigenous
genocide and displacement,10 chattel slavery of Africans, and Asian indentureship.11
These ‘ … three criminal Acts’, as Beckles calls them,12 makes addressing colonial his-
tories of injustice in the Caribbean a complicated endeavour that must be mindful of
the plurality of colonial violence inflicted through chattel slavery, indentured labour,
indigenous pogrom plans and land appropriation,13 displacement, and assimilation of
indigenous communities into colonial administrative structures.14
The Caribbean reparatory justice initiatives materialised through the CARICOM
Reparations Commission’s Ten Point Reparation Plan seek to address those multiple
forms of injustice, with particular focus on native genocide and chattel slavery. This
article does not set out to disentangle the compound legal tensions and implications
posed by the plurality of the injustices sought to be addressed through the broader
reparations claims of the Commission, especially those related to the native genocide,
given the enduring violation of indigenous rights perpetrated domestically by contem-
porary Caribbean states.15 Instead of embarking on a discussion of potentially various
levels of redress to be sought through different legal avenues and thus risking a superficial
analysis, the article restricts its focus to Caribbean reparations for chattel slavery as a
decolonial project that belongs within international (human rights) law. While signifi-
cant regional and national jurisprudence developments have come to address some of
the consequences of the colonial dispossession of Caribbean indigenous populations
and affirm, for example, their property rights in relation to their traditional land,16 no
comparable jurisprudence development addresses yet chattel slavery and its implications
for Caribbean descendants of enslaved Africans. This lack indicates an urgent need for
thinking about and addressing chattel slavery within a more inclusive human rights
legal framework that accommodates Caribbean calls for justice.
This article both highlights the legal challenges articulated against calls for reparations
for chattel slavery and explores the human rights law avenues that may offer potential
support to such claims in the international arena, such as ICERD, ICCPR, and the
Declaration on the Right to Development. It shows the potentialities and limitations
9
Ibid. 16.
10
Beckles, ‘Britain’s Black Debt’ (n 7) 24–36; See also S Jackson, Creole Indigeneity: Between Myth and Nation in the Car-
ibbean (University of Minnesota Press 2012); M Newton ‘Returns to a Native Land: Indigeneity and Decolonization in the
Anglophone Caribbean’ (2013) Small Axe: A Caribbean Journal of Criticism 108.
11
Beckles (n 6) 12.
12
Ibid.
13
CARICOM Reparations Commission (CRC), CARICOM Ten Point Plan for Reparatory Justice <www.caricom.org/caricom-
ten-point-plan-for-reparatory-justice/> accessed 1 October 2021.
14
The Kalinago people in Dominica, the Garifuna people in St Vincent, the Maya population of Belize, and the indigenous
Amerindians in Guyana, for example, are living proof of the complex histories of colonial violence and their manifold
legal, social, cultural, and economic implications for contemporary, postcolonial Caribbean populations.
15
For a focused discussion on Caribbean reparations for indigenous populations, see A Strecker, ‘Indigenous Land Rights
and Caribbean Reparations Discourse (2017) Leiden Journal of International Law 629.
16
See e.g. Caribbean Court of Justice The Maya Leaders Alliance v The Attorney General of Belize [2015] CCJ 15 (AJ);
Supreme Court of Belize Aurelio Cal, et al v Attorney General of Belize (Claims No 171 and 172 of 2007); Inter-American
Court of Human Rights Saramaka People v Suriname, Judgment (Preliminary Objections, Merits, Reparations and Costs)
Series C No 172 (28 November 2007); Inter-American Court of Human Rights Moiwana Community v Suriname, Judg-
ment (Preliminary Objections, Merits, Reparations and Costs) Series C No 124 (15 June 2005); Inter-American Commis-
sion on Human Rights Maya Indigenous Communities of the Toledo District v Belize (2004) Report no 40/04 Case 12.053.
of the existing international (human rights) system, shedding light specifically on the
difficulties experienced so far in determining adequate legal pathways to claim account-
ability for slavery’s debilitating consequences and to legitimately embed reparations for
slavery in the international (human rights) law architecture. The article therefore argues
that international law’s inability to respond to claims for the historical injustices of colo-
nialism and chattel slavery is not only indicative of the colonial imagination on which it
has been constructed, but also reproduces power asymmetries and patterns of exclusion
as the foundation of international human rights law and of modern postcolonial
societies.
Paying close attention to the fact that calls for reparations for chattel slavery find
barely any support in international (human rights) law and drawing on the reformist
and disruptive discourse of TWAIL, the article encourages critical reflection on the inclu-
siveness of the current international (human rights) system. It illustrates through Carib-
bean lenses that the international (human rights) system is itself built on power relations
and legacies of colonialism, arguing that making space in international (human rights)
law for issues brought by actors from the ‘periphery’, such as Caribbean reparations
for chattel slavery, would address some of the exclusions allowed. It suggests that repara-
tions for historical injustices, in particular for chattel slavery, are decolonising calls
demanding a critical reimagining of international (human rights) law as a system that
reflects and is inclusive of alternate standpoints on justice.17 Substantively, this decolo-
nising call implies challenging, scrutinising, and transforming well-established inter-
national (human rights) law institutions, structures, standards, and doctrines to enable
the equal consideration and inclusion of the ‘periphery’s’ reparatory justice standpoint
in the global justice system, and ensure accountability for historical harms. The examin-
ation proposed in this article thus contributes to the larger TWAIL discourse advocating
for decolonising international (human rights) law. Decolonising is used in this article not
to mean the process of transfer of sovereign power and gaining of independence, but as
an ideological concept of political force for eradicating established structures of subordi-
nation and exclusion, and ideologies of superiority/inferiority reproduced through legal,
political, economic, and social structures and maintaining certain nations, peoples, and
ideas at the periphery.
In contrast with other studies on the legal case of reparations,18 this article offers a
rethinking of existing international (human rights) law regimes in an effort to situate
reparations for chattel slavery, basing this on a detailed exploration of international
legal frameworks and their relevance to addressing Caribbean reparations for chattel
slavery. Building on TWAIL to critique international (human rights) law and expose
the engrained structures of subordination and exclusion it has legitimated and repro-
duced, the article also draws on Bernard Boxill’s theorisation of justice and reparation
to reflect on categories of responsibility and the ways in which they could be operationa-
lised by duty bearers to respond to calls for reparations for chattel slavery. Through the
model of backward-looking and forward-looking responsibility, it thus focuses on former
colonising states and the international community as duty bearers for the historical
17
Upendra Baxi, ‘Some Newly Emergent Geographies of Injustice: Boundaries and Borders in International Law’ (2016)
Indiana Journal of Global Legal Studies 23, 15, 36.
18
A Buser, ‘Colonial Injustices and the Law of State Responsibility: The CARICOM Claim for Reparations’ (2016) Heidelberg
Journal of International 409; Wittman (n 3); Robinson (n 5).
68 R. BIHOLAR
injustices of colonialism and chattel slavery. Using this model, the article makes sugges-
tions for reimagining international (human rights) law frameworks to make space for
Caribbean reparations and thus become more inclusive. Concretely, such a space
would involve (i) ‘periphery’s’ ‘logics’ of reparatory justice,19 (ii) an international
human rights mechanism for compliance, and (iii) scrutiny of international law doctrines
to challenge the absence of institutional intervention into the injustices of colonialism
and chattel slavery. Premised on the belief that international human rights law cannot
fully account for its claims of inclusiveness and universality with capacity to ensure ‘
… equality for all in dignity and rights’20 if the ‘periphery’s’ calls for justice continue
to be excluded, this article argues that creating a space in international human rights
law which offers legitimate ground for reparations for chattel slavery to make their
claims contributes to a process of decolonising this field of law.
The next section introduces Caribbean calls for reparations for chattel slavery,
explaining their emergence and rationale, and provides the theoretical underpinnings
of the term ‘reparations’ as well as its operationalisation throughout the article.
Section 3 discusses TWAIL, as a conceptual and a methodological framework for the
examination of international (human rights) law, through the prism of Caribbean repara-
tions for chattel slavery. Sections 4 and 5 highlight the challenges posed and possibilities
offered by international law and international human rights law, respectively, for estab-
lishing a legal basis for reparations. While this article is concerned with human rights law,
given its focus on the historical injustices of chattel slavery and the significance of inter-
national law in their perpetration, an adequate discussion requires an examination of the
larger international law regime prior to the advent of human rights. Accordingly, the
analysis in this article engages with both international law and international human
rights law for a holistic discussion; hence the use of the phrase ‘international (human
rights) law’.21 Echoing Theo van Boven, international human rights law, having
emerged ‘ … as a matter of international concern’,22 is considered here as an integral
part of the overarching corpus of international law. Section 6 draws on the TWAIL fra-
mework to critique the limitations to reparations for chattel slavery presented in inter-
national (human rights) law, and makes suggestions for a critical reimagining of these
international legal frameworks.
2. Caribbean Reparations for Chattel Slavery: Context and Concept

Caribbean calls for reparations for chattel slavery are a response to the impact of debil-
itating colonialism, the transatlantic slave trade, and chattel slavery, and a profound
demand for accountability. Contemporary Caribbean societies stand as proof that the
colonial institutions founded on and propagated through brutality, commodification
of African people, and the intrinsic erasure of human dignity are not yet defunct.
Their enduring legacy continues to further social inequalities and human rights
19
Kamari Maxine Clarke, Affective Justice. The International Criminal Court and the Pan-Africanist Pushback (Duke University
Press 2019) 263.
20
UNGA, Universal Declaration of Human Rights (10 December 1948) UNGA Resolution 217A (III), A/RES/3/217 A, art 1.
21
The use of ‘international (human rights) law’ throughout the article is intended to refer to both international law and
international human rights law, as the article engages in a critique of both legal regimes.
22
T van Boven, ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’ in CF
Ferstman and others (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Brill 2009) 26.
abuses, preserving colonialism as a vivid reality of today Caribbean life. The lasting and
acute marks left by colonial ideologies of racial superiority/inferiority, plantation
economy policies, and labour and sexual exploitation are mirrored by current social hier-
archies along lines of race, class, and sex, and politics of exclusion, severe social inequal-
ities, often manifested through violence,23 and stubborn underdevelopment.24
In the words of the renowned Caribbean economist Norman Girvan, alerting about
the consequences of slavery and colonialism, ‘ … the immiserizing poverty and demor-
alizing economic impotence of Third World peoples today can in most cases be traced
back to the destructive effects of the European impact and to the characteristics of the
systems erected to service European interest’.25 With a majority population of Afro-des-
cendants, racial inequalities and skin-tone politics determining access to resources,
status, and power are underpinning Caribbean social, economic, and political fabric.26
Colonial racialised ideologies and systems thus persist, and show how legacies of
slavery and colonialism continue to stifle the postcolonial project of full independence
and freedom. These legacies have been reproduced and preserved through a ‘colonial
transitioning’27 into a postcolonial rule which ‘ … represents the continued march of
Western imperialism’.28 Beckles, Shepherd, and Reid have found that, ‘[d]ecades after
independence from the former colonial powers, the people of the Caribbean are still
struggling to achieve true political and economic self-reliance’.29
Reparations for chattel slavery bring attention to and demand accountability for injus-
tices of the past, and challenge the lingering asymmetrical relations of power between
former Caribbean colonies and Western colonial powers. As well as scholars,30 Carib-
bean heads of state have engaged with the reparatory justice movement in the region,
showing commitment through action at national and regional CARICOM levels.31 Car-
ibbean leaders established a Prime Ministerial Sub-Committee on Reparations, which
was subsequently followed by the establishment of National Reparations Committees32
and of a regional CARICOM Reparations Commission (CRC) in 2013. The CRC has
been tasked
23
D Thomas, Exceptional Violence: Embodied Citizenship in Transnational Jamaica (Duke University Press 2011) 18.
24
UN Human Rights Council (UNHRC), ‘Report of the Working Group of Experts on People of African Descent on its seven-
teenth and eighteenth sessions’ (2016) UN Doc A/HRC/33/61/Add2, para 26.
25
N Girvan, ‘Expropriation and Compensation from a Third World Perspective’ (1976) reprinted in A Kamugisha (ed), Car-
ibbean Political Thought: Theories of the Post-Colonial State (Ian Randle Publishers 2013) 153.
26
Inter-American Commission on Human Rights (IACHR), The Situation of the People of African Descent in the Americas
Report (2011) para 99.
27
F Fanon, The Wretched of the Earth (Grove Press 2004); See also W Rodney, ‘Contemporary Political Trends in the English-
Speaking Caribbean (1975), reproduced in Kamugisha (n 25).
28
A Kamugisha, ‘Introduction: Pot-Colonial Failure?’ in Kamugisha (n 25) xvii.
29
H Beckles, V Shepherd and A Reid, ‘Introduction’ (2019) Social and Economic Studies 1A 68.
30
See selected writings: H Beckles, ‘“Slavery was a long, long time ago”: Remembrance, Reconciliation and the Repara-
tions Discourse in the Caribbean’ (2007) ARIEL: A Review of International English Literature 9; Beckles (n 7); V Shepherd,
‘Reparations and The Right to Development’ (16th session of the Working Group of Experts on People of African
Descent (WGEPAD), Geneva, March–April 2015) <www.ohchr.org/sites/default/files/Documents/Issues/Racism/
WGEAPD/Session16/VereneShepherd.pdf> accessed 15 September 2021; R Biholar, ‘Imagining Caribbean Develop-
ment: The Right to Development and the Reparations Nexus’ in C Ngang, SD. Kamga and V Gumede (eds), Perspectives
on the Right to Development (Pretoria University Law Press 2018).
31
The Caribbean Community (CARICOM) is a regional organisation of states that was established in 1973 with the signing
of the Treaty of Chaguaramas. See ‘Caribbean Community’ <https://caricom.org> accessed 1 October 2021.
32
National Reparations Committees have been established in 12 independent CARICOM member states. Note that
CARICOM associate members are overseas territories of the UK and have not formed such national committees.
CARICOM Reparations Commission (CRC), ‘About Us’ <http://caricomreparations.org/about-us/> accessed 1 October
2021.
70 R. BIHOLAR
… to establish the moral, ethical and legal case for the payment of reparations by the gov-
ernments of all the former colonial powers and the relevant institutions of those countries,
to the nations and people of the Caribbean Community for the crimes against humanity of
native genocide, the transatlantic slave trade and a racialized system of chattel slavery.33
The CRC asserts that the victims of slavery and slave trading in the Caribbean and their
descendants have a duty to call for reparatory justice. Such a call for justice forms the ‘ …
basis of the closure they seek to the terrible tragedies that engulfed humanity during
modernity’.34 The European colonising states, as the legal, financial, and fiscal architects,
enablers and perpetrators of these injustices, benefited from the proceeds and continue to
do so. They therefore have a responsibility to repair and pay their historical debt. Finding
‘ … European colonial rule as a persistent part of Caribbean life’ long after the national
independence process, and recognising that descendants of slavery currently experience
unrelenting racial victimisation and that this ‘ … persistent harm and suffering today’ is
the ‘ … primary cause of development failure in the Caribbean’,35 the Commission pro-
poses a concrete Ten Point Reparation Plan (hereinafter the CRC plan), which aims to
ensure Caribbean people’s ‘ … full admission with dignity into the citizenry of the
global community’ and to this end ‘ … the path to reconciliation, truth and justice for
victims and their descendants’.36 The CRC plan marks thus the continuing nature of vio-
lations of the past affecting the present of Caribbean nations, and reiterates the position
advanced by the Durban Declaration and Programme of Action (DDPA), that ‘ … his-
torical injustices have undeniably contributed to the poverty, underdevelopment, mar-
ginalization, social exclusion, economic disparities, instability and insecurity that affect
many people in different parts of the world, in particular in developing countries’.37
Based on historical scrutiny, CRC establishes goals for structural change for the
present and future of Caribbean nations and proposes the following action points:38
(1) full formal apology; (2) repatriation; (3) indigenous peoples development pro-
gramme; (4) cultural institutions; (5) addressing the public health crisis; (6) illiteracy era-
dication; (7) African knowledge programme; (8) psychological rehabilitation; (9)
technology transfer; (10) debt cancelation.39
Nevertheless, the CRC ‘ … operates within the context of persistent objection from
European governments to its mandate’.40 In response to the UK authorities’ refusal to
extend a formal apology to Jamaica expressed in 2015 through Prime Minister David
Cameron,41 Professor Sir Hilary Beckles, the CRC Chairperson, calls on the UK to pay
its duties to Jamaica in the form of reparations for slavery. Beckles stresses in his open
letter to the UK Prime Minister,
33
Ibid.
34
CRC, ‘CARICOM Ten Point Plan for Reparatory Justice’ (n 13).
35
Ibid.
36
Ibid.
37
United Nations, Durban Declaration and Plan of Action, Adopted at the World Conference Against Racism, Racial Dis-
crimination, Xenophobia and Related Violence (DDPA) (8 September 2001 UNGA Resolution 56/266) para 158.
38
CRC (n 13).
39
Ibid.
40
Ibid.
41
BBC News, ‘David Cameron Rules Out Slavery Reparation during Jamaica Visit’ (30 September 2015) <www.bbc.com/
news/uk-34401412> accessed 5 October 2021; Rowena Mason, ‘Jamaica Should “move on from painful legacy of
slavery”, Says Cameron. British Prime Minister Ducks Official Calls for UK to Apologise for Its Role in the Slave Trade
or Pay Reparations’ The Guardian (London, 30 September 2015) <www.theguardian.com/world/2015/sep/30/
jamaica-should-move-on-from-painful-legacy-of-slavery-says-cameron> accessed 5 October 2021.
… the legacies of slavery that continue to derail, undermine and haunt our best efforts at
sustainable economic development and the psychological and cultural rehabilitation of our
people from the ravishes of the crimes against humanity committed by your British State
and its citizens in the form of chattel slavery and native genocide … The Jamaican
economy, more than any other, at a critical moment in your nation’s economic develop-
ment, fuelled its sustainable growth. Britain, as a result, became great and Jamaica has
remained the poorer … We merely ask that you acknowledge responsibility for your
share of this situation and move to contribute in a joint program of rehabilitation and
renewal. The continuing suffering of our people, sir, is as much your nation’s duty to alle-
viate as it is ours to resolve in steadfast acts of self-responsibility … We urge you then, in
this light, to indicate your nation’s willingness to work towards a reparatory justice pro-
gramme for the Caribbean, with a view to allowing us to come together in order to come
to closure, put this terrible past behind us, and to leave it to us to continue the making of
our future.42
Having explained the context of and rationale for Caribbean reparations, making specific
reference to the CRC plan which draws on an ample employment of the concept, I will
now indicate the way in which the term ‘reparations’ is understood and utilised through-
out this article. Drawing on Bernard Boxill’s theorisation of justice, which operationalises
two elements with distinct aims – reparation (backward looking) and compensation
( forward looking)43 – this article premises its understanding of ‘reparations’ on a repara-
tion-compensation model which accentuates the interrelatedness of backward-looking
and forward-looking aims in the context of reparations for chattel slavery. Thus, ‘repara-
tions for chattel slavery’ indicates in this article both reparation, meaning an obligation to
repair or a backward-looking responsibility contingent on injustice committed,44 and
compensation, meaning a tool for development or a forward-looking responsibility
aiming to remedy a present situation. This article opposes the narrow and indeed infan-
tilising understanding of reparations for chattel slavery as financial aid offered by indus-
trialised, developed states to the Caribbean; that understanding reaffirms and preserves
domination/subordination boundaries and asymmetrical structures of power between
developed and developing countries, former colonising powers and former colonies,
First and Third Worlds. Instead, this article intends to stress reparations’ crucial role
in achieving accountability for the injustices committed through colonialism and
slavery, which have enduring dispossessing effects on the contemporary Caribbean.
Essential to this understanding of reparations is the perpetrator’s obligation to repair,
which corresponds to the duty not to interfere with the rights of others.45 Consequently,
reparations for chattel slavery are understood as former colonising states’ responsibility
to Caribbean former colonies for the historical injustices they committed. Being pre-
mised on a prior breach of justice, reparations for chattel slavery involve a backward-
looking responsibility (reparation).46
42
H Beckles, ‘Open Letter to Prime Minister David Cameron’ Jamaica Gleaner (Kingston, 27 September 2015) <http://
jamaica-gleaner.com/article/commentary/20150928/open-letter-prime-minister-david-cameron> accessed 5 October
2021.
43
BR Boxill, ‘The Morality of Reparation’ (1972) Social Theory and Practice 113.
44
Ibid. 116. Injustice is committed, as Boxill explains, when interfering with ‘ … another’s legitimate attempt to do or
possess something’ (i.e. products of own labour) or ‘ … when someone makes it impossible for others to pursue a
legitimate goal’ (i.e. living life with dignity; owning the products of own labour).
45
J Locke, Treatise of Civil Government and A Letter Concerning Toleration (Charles L Sherman ed, Appleton-Century
Company 1937) 9 as cited in Boxill (n 43) 116–17.
46
Boxill (n 43) 117.
72 R. BIHOLAR
Furthermore, acknowledgment of injustice is essential to reparation, otherwise ‘ …

justice does not yet obtain’.47 Boxill argues that such acknowledgment is based on perpe-
trator’s belief in equality for all in worth and dignity, including for the injured party,
whereas lack of acknowledgment implies that the perpetrator does not consider the vio-
lated party as an equal.48 The refusal by former coloniser states, such as the UK, to for-
mally apologise to Caribbean nations, such as Jamaica, is thus indicative of a failure to
consider Caribbean nations as equals. Their lack of recognition of injustice reasserts
the inferior position to which Caribbean nations are relegated and maintained on, and
confirms the persistent asymmetrical relations of power between former coloniser
states and former colonies.
In conjunction with this backward-looking understanding of reparations, this article
employs a forward-looking conceptualisation (compensation),49 as reparations are also
used to address the present structural vulnerabilities to which Caribbean states have
been reduced by the historical injustices of colonialism and slavery. Premised on the
belief in equality in dignity and worth for all,50 like reparation, compensation is based on
equal consideration as a minimum requirement of justice51 so that nobody ‘ … suffers
from a removable handicap’.52 For this reason reparations for chattel slavery are conceptu-
alised as a tool for development that is not understood in a narrow econocentric sense, but
as couched in a larger ‘right to development’ narrative; hence aiming for the enjoyment of
civil, political, economic, social, and cultural development ‘ … in which all human rights
and fundamental freedoms can be fully realized’.53 Compensation also involves community
membership. According to Boxill, when community membership exists, that community
can legitimately be demanded compensation, because its members are, ‘ … in essential
respects, members of a joint undertaking’.54 In the case of reparations for chattel slavery,
the international community embodies the community dimension of compensation due
to Caribbean nations’ membership in it. The international community’s role as duty
bearer involves the responsibility to respond to Caribbean reparations calls by making
the international (human rights) law system conducive to reparations for chattel slavery
in an effort to ensure an effective challenge to pressing injustices.
In sum, reparations for chattel slavery are understood in this article as both an obli-
gation to repair or backward-looking responsibility (reparation) and as a tool for devel-
opment or forward looking responsibility (compensation). This approach is influenced
by the programmatic CRC plan, which contains both backward looking and forward-
looking responsibilities. Notwithstanding the focus on duty bearers, it must be noted
that by ‘reparations’ rights holders’, this article means Caribbean nations, through
their governments. In this case, crucially, individuals are the beneficiaries of the exercise
of the right by the state.55
47
Ibid. 118.
48
Ibid.
49
Ibid. 117.
50
Ibid. 115.
51
Ibid. 114.
52
Ibid.
53
UNGA, Declaration on the Right to Development (4 December 1986) A/RES/41/128, art 1; UNHRC, Draft Convention on
the Right to Development (17 January 2020) A/HRC/WG2/21/2, art 4.
54
Boxill (n 43) 115.
55
Arjun Sengupta, ‘Right to Development as a Human Right’ (2001) Economic and Political Weekly 2527.
Caribbean reparations for chattel slavery are further understood in this article as a
decolonising tool of international (human rights) law representing and emanating
from its ‘periphery’. Exposing the concerns of this ‘subaltern epistemic location’,56
their message and demands divulge and challenge silences about structures of subordi-
nation and exclusion between former colonisers and the formerly colonised that are
legitimated and reproduced by contemporary international frameworks, including inter-
national (human rights) law. Clearly, reparations demands inherently embed a discourse
that disputes and disrupts well-established structures and hierarchies, including law, as
well as prevailing ideologies of superiority/inferiority that keep certain nations,
peoples, and ideas at the periphery. I argue that the insistence of Caribbean reparations
calls to demand accountability for colonial histories of oppression and injustice carries a
decolonising discourse exposing tensions, hierarchies, and relations of power between
nations in the contemporary world.
3. A TWAIL Conceptual Framework and Methodology

Human rights as a concept has been quite attractive for scholars and practitioners, giving
hope especially to those emerging from structures of oppression, such as colonialism.
Burke reminds us of the significant participation of leaders from the emerging Third
World at the 1955 Bandung Conference,57 where new voices from regions that ‘ …
had finally begun to find self-expression’ made significant contributions to the making
of international human rights.58 Similarly, Jensen sheds light on Jamaica’s impact on
global human rights work, for example, when it acted as ‘ … the main broker of progress
in UN human rights diplomacy’ around 1962, the time at which it gained full indepen-
dence from Britain.59 As an integral part of international law, international human rights
law has developed over the past seven decades by addressing various forms of margina-
lisation, and including groups and peoples who have been traditionally disenfranchised,
such as women, children, migrant workers, people living with disabilities, and indigenous
populations. Notwithstanding such noteworthy achievements, however, the key prin-
ciples on which the human rights project is built – equality for all in dignity and
rights60 – are yet to be fully realised. Universality as a core value of human rights has
been advocated for by Third World leaders despite the opposition of European imperial
powers during the two decades following World War II.61 In fact, the universality of
human rights became stifled by power dynamics ‘ … manifested forcefully and repres-
sively’ subsequent to the human rights momentum experienced during the 1960s era
of decolonisation.62 Therefore, the question emerges, to what extent the current inter-
national human rights system is truly an inclusive one that indeed offers a universal
56
JT Gathii, ‘The Promise of International Law: A Third World View’ (2020) Grotius Lecture presented at the 2020 Virtual
Annual Meeting of the American Society of International Law, 2 <https://ssrn.com/abstract=3635509> accessed 30
August 2021.
57
The Asian-African Conference held in Indonesia, Bandung, 18–24 April 1955.
58
R Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010) 16.
59
SLB Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values
(CUP 2016) 71.
60
UNGA, ‘Universal Declaration of Human Rights’ (n 20) art 1.
61
Jensen (n 59) 3.
62
Ibid.
74 R. BIHOLAR
language with the capacity to ensure equality for all individuals, peoples, and nations in
dignity and rights, as the Universal Declaration of Human Rights (UDHR) promises.
This article engages with the Third World Approaches to International Law (TWAIL)
as the larger critical discourse advocating for decolonising international law, including its
human rights branch. Specifically, TWAIL is drawn upon here as a method of analysis
that embeds a discourse that is reformist and disruptive of well-established structures
of law. According to Mutua, the TWAIL analytical framework rejects the sacredness of
any norms, processes, institutions, and structures of international or national law, and
purports that all factors that underpin ‘ … harmful hierarchies and oppressions must
be revisited and changed’.63 With this TWAIL commitment in mind, this section high-
lights the TWAIL approach to the wider body of international law and its analytical func-
tions, clarifying that the concept of Third World captures, as Mutua describes, ‘ … the
oppositional dialectic between the European and the non-European, and identifies the
plunder of the latter by the former’, and is ‘ … different from less-developed, crisis-
prone, industrializing, developing, underdeveloped, or the South’.64 TWAIL is used
thus in this article because it offers a useful analytical tool for calls from the ‘periphery’,
such as reparations for chattel slavery, for decolonising international (human rights) law.
3.1 TWAIL critiques of international (human rights) law

The current arrangement of international law originates in the sixteenth century,65 as
Cassese reminds us, and is premised on a Eurocentric story that reflects Western political
thought and systems of states. The dominant Eurocentrism of the international law nar-
rative, Fassbender and Peters point out, has been enabled by its diffusion to other con-
tinents and non-Western populations, which became ‘ … passive objects of European
domination’.66 Ideologically, this legitimised the Western, European standpoint as the
‘universal’ international law narrative.67 In the words of Bedjaoui:
This classical international law … consisted of a set of rules with a geographical bias (it was
a European law), a religious-ethical aspiration (it was a Christian law), an economic motiv-
ation (it was a mercantilist law), and political aims (it was an imperialist law).68
Using the universalised narrative of international law, as Anghie explains, the imperial
project forced ‘ … the assimilation of non-European peoples in a system of law which
was fundamentally European’, relegating the colonial world to ‘ … the geographical
and theoretical peripheries’ of international law.69 TWAIL scholars therefore challenge
the universality of international law,70 including international human rights law, and
63
Makau Mutua, ‘What is TWAIL?’ (2000) 94 Proceedings of the Annual Meeting American Society of International Law 31,
38 <www.jstor.org/stable/25659346> accessed 15 August 2021.
64
Ibid. 35.
65
A Cassese, International Law (2nd edn, OUP 2005) 22.
66
B Fassbender and A Peters, ‘Introduction: Towards A Global History of International Law’ in B Fassbender and A Peters
(eds), The Oxford Handbook of the History of International Law (OUP 2012) 2.
67
A Becker Lorca, ‘Eurocentrism in the History of International Law’ in Fassbender and Peters, The Oxford Handbook (n 66)
1035.
68
M Bedjaoui, ‘Poverty of the International Order’ in R Falk, F Kratochwil and SH Mendlovitz (eds), International Law: A
Contemporary Perspective (Westview Press 1985) 153.
69
A Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2004) 32–33, 62.
70
Mutua, ‘What is TWAIL?’ (n 63) 33–34.
unearth the epistemological injustices71 supported through these branches of law. Recog-
nising the Third World as a site for knowledge production and practice of international
human rights law, Gathii argues, subverts assumptions of exclusive Western-centred pro-
duction of international legal knowledge for consumption and governance, which have
infantilised the Third World as a mere site of passive reception of international legal
knowledge.72 In other words, TWAIL scholars challenge the imposed ‘universal’
quality of Western worldviews reflected in international legal knowledge73 and
contend that the Third World ‘ … speaks from a subaltern epistemic location’.74
While reaffirming that international law, in its various branches, spins on the sole
compass of Western ideologies and regimes of domination/subordination,75 some scho-
lars urge a re-examination of its perimeters, including its standards, structures, mechan-
isms, and methods, to consider the margins and offer ‘ … alternate imaginations of
legality and justice’.76 Gathii suggests that instead of accepting ‘ … the limited geography
of places and ideas’ reproduced through the practice and scholarship of international law,
it is essential to challenge the conventional and convenient narrowness of the discipline
by stepping outside its beltway to ‘places often unfamiliar’.77 TWAIL scholars show, for
example, that the long-established concept of state sovereignty reflects the colonial nature
of the positivist theory of international law and its purpose of serving the interests of
sovereign Western nations considered the ‘civilised’ ones.78 According to Anghie, this
positivist approach has defined the terms on which the non-European ‘uncivilised’
others considered non-sovereign, were assimilated into the framework of the law.79
This divisive positivism is preserved in contemporary times. The language employed
by the UN Charter and the Statute of the International Court of Justice (ICJ) in its
Article 38 that states the Court’s applicable law80 is indicative of such colonial divisions
between the ‘First World of … civilised nations’ and non-Western others.81 Such
language points to the structures of domination/subordination and the ensuing asymme-
tries of power still existing in international law. It comes as no surprise that scholars’
meticulous examinations have demonstrated that international law and its dynamics
pose obstacles to the protection and realisation of human rights.82 Kamari Clarke, for
instance, suggests that the absence of international institutional intervention into coloni-
alism and the resultant inequalities of administering the law today signify that ‘other
logics’ that expose colonial ‘histories of injustice’ are excluded from the consideration
71
Gathii (n 56) 16.
72
Ibid. 2.
73
See generally Dani Wadada Nabudere, ‘Development Theories, Knowledge Production and Emancipatory Practice’ in V
Padayachee (ed), The Development Decade? Economic and Social Change in South Africa 1994–2004 (HSRC Press 2006).
74
Gathii (n 56) 2.
75
Mutua, ‘What is TWAIL?’ (n 63) 31; Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law
(1996) Social & Legal Studies 321.
76
Baxi (n 17) 36.
77
Gathii (n 56) 2.
78
Anghie, Imperialism (n 69) 35; Baxi (n 17) 30, 52; Mutua, ‘What is TWAIL?’ (n 63) 33.
79
Anghie, Imperialism (n 69) 35, 66. Anghie (n 69) 38 alerts that ‘the violence of positivist language in relation to colo-
nialism is hard to overlook. Positivists developed an elaborate vocabulary for denigrating non-European people, pre-
senting them as suitable objects for conquest, and legitimizing the most extreme violence against them, all in the
furtherance of the civilizing mission, the discharge of the white man’s burden.’
80
Charter of the United Nations and Statute of the International Court of Justice (1945) in Article 38 (1) (c) states that ‘The
Court … shall apply: (c) the general principles of law recognized by civilized nations’.
81
Baxi (n 17) 30, 32.
82
Ibid. 24.
76 R. BIHOLAR
of the larger body of international law.83 These ‘other logics’ are ‘ … rendered marginal
or irrelevant to the juridical order’,84 and their constructed marginality and irrelevance
perpetuate dynamics premised on relations of power within the larger discipline and
practice of international law. For such reason, the Special Rapporteur on contemporary
forms of racism has stressed that ‘ … international law has not fully been “decolonised”
and remains replete with doctrines that prevent the reparation and remediation of the
inequality and injustice entrenched in the colonial era’.85
3.2 TWAIL as a critical method of analysis

Premised on a conflicted relationship – critical yet enamoured – with international law,
as Gathii describes,86 TWAIL scholarship has undertaken to reveal the interconnections
between international law narratives and structures on one hand, and processes of colo-
nialism, enslavement, and domination on the other,87 thus exposing international law’s
expanded geographies, but one-sided ideological underpinnings. With such findings,
TWAIL endeavours to re-examine the premises and standards of international law as
a general field of study and to challenge its well-established Western representation
and narrative; engage in a counter-narrative that widens the perspective from the
Western ‘centre’ to the non-Western ‘periphery’; pay attention to traditionally mar-
ginal(ised) voices; and enlarge the international law vocabulary and enable new, non-
Western meanings,88 sensibilities (ways of listening to, seeing, and grasping ‘others’),
and literacies (of reading the larger body of international law, and its interpretation
and application, and of understanding its possibilities and limitations). With regard to
international human rights law in particular, TWAIL scholarship warns that despite
its ostensibly benign character, this branch of international law is likewise anchored
theoretically in ‘Western colonial attitudes’ and discourses.89 TWAIL thus enables a
similar critical reflection of the inclusiveness of the current human rights system and
highlights its rigidities and politics of preference, despite its general aim for inclusiveness
and equality.
TWAIL is accordingly used in this article as an analytical tool that introduces a
critical dimension to the vocabulary and understanding of the international (human
rights) legal order. It is employed to sharpen the discussion of the asymmetric
relations of power embodied in and reproduced by the established norms, structures,
and mechanisms of international law and specifically international human rights law.
In applying TWAIL as a critical method of analysis, this article joins TWAIL scholar-
ship in arguing generally that because international law has been imagined, instituted,
and disseminated from a Western perspective, it establishes European, Western
nations as the norm, relegating non-European nations and populations to the
83
Clarke (n 19) 263.
84
Ibid.
85
UNGA (n 2) para 50.
86
Gathii (n 56) 22.
87
Bhupinder S. Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) Mel-
bourne Journal of International Law 499, 501; see also Gathii (n 56).
88
Gathii (n 56) 22.
89
M Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) Harvard International Law Journal 201,
210 and 212.
peripheries of international law. Reasserting An-Na’im’s argument that the human

rights system is itself built on power relations and legacies of colonialism,90 this
article shows that the global human rights system is a closed environment which
makes all but no space for actors from the ‘periphery’. Their experiences, worldviews,
knowledge, and solutions are still excluded from or ignored in contemporary pro-
cesses of international human rights law. Instead, they are measured against
Western-generated legal benchmarks.91
Caribbean calls for reparations for chattel slavery are constrained to operate within
such peripheric parameters as well. This reflects Mutua’s argument that contemporary,
non-Western human rights calls for justice and the issues they shed light on ‘ … have
either been overlooked or rejected in the construction of the current understanding of
human rights’.92 By raising pressing concerns for the ‘periphery’ which so far have
remained unaddressed, namely the historical injustices of colonialism and slavery,
calls for reparations for chattel slavery challenge international legal frameworks to
scrutinise the Western quality of their perspectives, standards, doctrines, and struc-
tures and to consequently widen to the non-Western ‘periphery’. In line with
TWAIL endeavours to re-examine the premises and standards of international legal
regimes, they make reformist demands for a more inclusive international (human
rights) legal system.
4. International Law and Reparations for Chattel Slavery

The political resistance to Caribbean calls for reparations from the governments of
former colonial powers has led to Caribbean determination to establish a legal case for
reparations.93 This section focuses on the limitations and contestations presented by
existing international law, its doctrines, practice, and theory, to building such a case.
By explaining the restricted space in which reparations operate at this international
level, this section provides the premise for the critique that will be presented in
section 6.
4.1. International law barriers to reparations for chattel slavery

Although repairing a harm committed and eliminating its consequences is a general
principle of law embedded in the international law doctrine of state responsibility,94
no clear legal pathways or mechanisms have been carved out within international
legal parameters that would provide authoritative legal ground for reparations calls
to move beyond the typical moral and ethical endorsements. International efforts
to strengthen states’ responsibility for reparatory justice, such as the 2001 World
Conference against Racism, Racial Discrimination, Xenophobia and Related Intoler-
ance and its outcome document, the Durban Declaration and Programme of
90
Abdullahi An’Naim, ‘It’s Time to Decolonize Human Rights’ (Emory University Institute for Developing Nations Lecture
25 February 2016) <www.youtube.com/watch?v=_MCkvt9y46o&t=7s> accessed 1 June 2021.
91
Gathii (n 56) 2.
92
Mutua (n 89) 205.
93
See CRC mandate. CRC (n 33).
94
van Boven (n 22) 26.
78 R. BIHOLAR
Action (DDPA), have been rendered insubstantial in the face of concerns among the
divided international community that formal apologies would enable a legal basis for
responsibility for reparations, including financial compensation.95 Besides opposition
from political actors, resistance is also expressed under international law, at both
theory and practice levels, making reparations a contested and divisive subject on
the international arena.
Holding states accountable for slavery and colonialism is made difficult by legal bar-
riers in the existing international law paradigm, despite the reparative obligation to
remedy a wrong codified in the UNGA Resolution 56/83, International Law Commission
Report on International Responsibility of States (hereinafter the ILC Report).96 Accord-
ing to Article 31 (1), a state that is responsible ‘ … is under an obligation to make full
reparation for the injury caused by the internationally wrongful act’.97 This provision
expresses the established principle of international law that ‘ … the breach of an engage-
ment involves an obligation to make reparation in an adequate form’.98 The Permanent
Court of International Justice took the clear position in the Factory at Chorzów case that
states have the responsibility to ‘ … 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’.99 Consequently, states must provide one or more forms of reparations,
which shall include restitution, compensation, and/or satisfaction.100
However, time represents the impediment to reparations for chattel slavery to operate
under international law.101 Law’s intertemporal nature is encapsulated in a general prin-
ciple of law that guarantees the non-retroactive application of international law,102 and is
articulated in Article 13 of the ILC Report, which asserts that responsibility of states
arises if the breach occurs at a time when the international obligation is binding on
the state.103 A number of international judicial and arbitral awards, such as the cases
Enterprise v Great Britain (1854), Hermosa v. Great Britain (1854), and Creole v Great
Britain (1854) have made use of that principle.104 In a legal positivist fashion in the Enter-
prise case, for example, Umpire Bates declared that although slavery was morally recog-
nised as contrary to the principles of justice and humanity, law can institute slavery in its
municipal jurisdiction.105 In the case of the Enterprise brig, compensation claims
were brought by slave owners for the loss sustained through the seizure and liberation
of the slaves on board by the Bermudan authorities. Declaring that at the time of
95
‘Conference Split on Slavery Issue’ (BBC News, 5 September 2001) <http://news.bbc.co.Uk/1/hi/world/africa/
152651l.stm> accessed 15 September 2021.
96
International Law Commission (ILC), Responsibility of States for Internationally Wrongful Acts (UNGA Resolution A/RES/
56/83, 2001).
97
Ibid. art 31(1).
98
Case Concerning the Factory at Chorzów (Jurisdiction) (Judgment No 8) [1927] PCIJ Series A No 9, p 21.
99
Case Concerning the Factory at Chorzów (Merits) (Judgment No 13) [1928] PCIJ Series A No 17, p 47.
100
ILC, Responsibility of States (n 96) art 34.
101
Max du Plessis, ‘Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery’ (2003)
Human Rights Quarterly 25, 624, 627.
102
International Law Commission (ILC), ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries’ (2001) International Law Commission Ybk, Vol II, Part Two, para (1), 57.
103
ILC (n 96) art 13.
104
United Nations, ‘Reports of International Arbitral Awards’ (2012) <https://legal.un.org/riaa/cases/vol_xxix/26-53.pdf>
accessed 7 October, 2021.
105
Ibid. 49. The Enterprise case stands as proof that legal positivism supported the institution and practice of slavery:
‘[w]hat is law is a question of fact; and though its original institution may have been of doubtful morality or justice,
it is still law’: ibid. 38.
claim, ‘ … slavery existed by law in several countries, and was not wholly abolished in the
British dominions’,106 the Umpire decided that the slave owners were entitled to com-
pensation of ‘sixteen thousand dollars’, and ‘thirty-three thousand dollars’
respectively.107
Additionally, conventional legal interpretation of states’ international responsibility
indicates that the international obligations binding a state at the time when an act
occurred determine whether the act is wrong in its nature or not.108 This also suggests
that the institution of slavery was considered legal at the time of its practice.109 Such
arguments have substantiated rejections of various undertakings to establish a legal
basis for reparations for chattel slavery. Reparations sceptics write off reparations calls
as ‘ … misunderstandings of international law’.110 Requiring material reparations
from former colonisers is said to be an erroneous demand for the retroactive application
of the law, which contravenes long-standing international legal principles.111 Conven-
tional legal scholarship has thus distrusted the potential ‘to construe and uphold’,
through reparations calls, ‘ … a legal duty to pay compensation to the descendants of
the victims of the slave trade and other early forms of slavery’.112
Constructing a legal basis for reparations for chattel slavery clearly meets challenges
and concerns regarding their unsuitability under contemporary international law. Pre-
dictably, states have utilised time through the principle of non-retroactive application
of the law to refute international legal responsibility for historical injustices and
ensuing reparations.113
5. International Human Rights Law and Reparations for Chattel Slavery

This section details some human rights law avenues that may offer potential to support
reparations for chattel slavery in the international arena, as well as highlighting the emer-
ging limitations. While acknowledging the relevance of regional human rights systems to
this discussion, especially the Inter-American system of human rights, for the purpose of
this article I focus on the United Nations system and particularly on the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD),114 the
International Covenant on Civil and Political Rights (ICCPR),115 and the Declaration
106
Ibid. 49.
107
Ibid. 50.
108
Taslim O. Elias, ‘The Doctrine of Intertemporal Law’ (1980) AJIL 285; R Higgins, ‘Time and the Law: International Per-
spectives on an Old Problem’ (1997) International and Comparative Law Quarterly 501.
109
United Nations (n 104) 27, 30.
110
RE Howard-Hassmann, ‘Reparations for the Slave Trade: Rhetoric, Law, History and Political Realities’ (2007) Canadian
Journal of African Studies/La Revue canadienne des études africaines 427, 428 and 431.
111
Ibid.
112
United Nations Commission on Human Rights (UNCHR), Sub-Commission on the Prevention of Discrimination and Pro-
tection of Minorities, ‘Study Concerning the Compensation and Rehabilitation for Victims of Gross Violations of Human
Rights and Fundamental Freedoms’ (1993) E/CN4/Sub2/1993/8.
113
For example, as the Special Rapporteur on contemporary forms of racism indicates, the intertemporal principle was
appealed to by Germany to deny any international legal responsibility and reparations for the genocide of Ovaherero
and Nama peoples of Namibia. UNGA (n 2) para 48. Also, Germany Federal Parliament, Official Record No 17/6813;
UNHRC, ‘Report of the Working Group of Experts on People of African Descent on its mission to Germany’ (15
August 2017) A/HRC/36/60/Add2.
114
UNGA, International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (21 December 1965)
UNTS vol 660.
115
UNGA, International Covenant on Civil and Political Rights (ICCPR) (16 December 1966) UNTS vol 999.
80 R. BIHOLAR
on the Right to Development.116 Detailing findings on prospects for and barriers to

reparations in international human rights law, this sections provides the premise for
the discussion presented in section 6.
5.1 Potentialities of international human rights law

The continuous nature of the historic injustices of colonialism and slavery and their per-
sistent effects on contemporary societies, is recognised by various instruments of the
global human rights system. The landmark DDPA indicates that slavery and the transat-
lantic slave trade should be considered crimes against humanity due to the ‘ … magni-
tude, organized nature and negation of the human essence of the victims’117 intrinsic to
those practices. Stressing that ‘ … the periods of slavery and colonialism have brought
about a state of economic collapse in the countries concerned, serious consequences in
the social fabric and other tragedies which continue even today to affect entire peoples
throughout the world’,118 the UN Sub-Commission on the Promotion and Protection
of Human Rights in its Resolutions 2001/1 and 2001/5 warned that account must be
taken of ‘ … the deep wounds of the past’119 to competently address enduring social
inequalities and the ensuing human rights violations, especially contemporary racism,
racial discrimination, and impunity for abuses. Similarly, the Committee on the Elimin-
ation of Racial Discrimination (CERD Committee) acknowledges in its General Rec-
ommendation 34 that slavery and colonialism are the underlying causes for the
present structural discrimination experienced by people of African descent:
Racism and structural discrimination against people of African descent, rooted in the infa-
mous regime of slavery, are evident in the situations of inequality affecting them and
reflected, inter alia, in the following domains: their grouping, together with indigenous
peoples, among the poorest of the poor; their low rate of participation and representation
in political and institutional decision-making processes; additional difficulties they face in
access to and completion and quality of education, which results in the transmission of
poverty from generation to generation; inequality in access to the labour market; limited
social recognition and valuation of their ethnic and cultural diversity; and a disproportion-
ate presence in prison populations.120
This was reaffirmed by the UN Working Group of Experts on people of African descent
in 2021,121 as well as by the UN Special Rapporteur on contemporary forms of racism in
2019, who explained that present-day structural racial discrimination and socio-
116
UNGA, Declaration on the Right to Development (n 53). This article does not focus in this section on the Draft Con-
vention on the Right to Development (2020), because of its status. However, this document will be considered in
section 6 which discusses the implications of making space for reparations in international (human rights) law.
117
DDPA (n 37) art 13.
118
OHCHR, Sub-Commission on Human Rights Resolution 2001/1 ‘Recognition of responsibility and reparation for massive
and flagrant violations of human rights which constitute crimes against humanity and which took place during the
period of slavery, of colonialism and wars of conquest’ (2001) 2.
119
Ibid. 1; See also OHCHR, Sub-Commission on Human Rights Resolution 2002/5 ‘Recognition of responsibility and
reparation for massive and flagrant violations of human rights which constitute crimes against humanity and which
took place during the period of slavery, colonialism and wars of conquest’ (2002) 1.
120
Committee on the Elimination of Racial Discrimination (CERD), ‘General Recommendation 34 Racial discrimination
against people of African descent’ (2011) CERD/C/GC/34 para 6.
121
UN Working Group of Experts on People of African Descent, ‘UN Experts Condemn UK Commission on Race and Ethnic
Disparities Report’ (Geneva 19 April 2021) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=
27004&LangID=E> accessed 21 August 2021.
economic deprivation are express manifestations of the continuum between colonialism

and slavery, and present human rights violations.122
The state obligation to remedy a wrong is mirrored by victims’ right to a remedy enun-
ciated in the ‘The Basic Principles and Guidelines on the Right to a Remedy and Repara-
tion for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law’ (the Basic Principles and Guidelines).123
This establishes a framework for reparations in the UN human rights system with a
broadened scope that details various types of reparations124 and guarantees victims’
rights to ‘ … adequate, effective and prompt reparation for harm suffered’,125 to guide
international and regional jurisprudence and standard-setting as well as national law
and practice.126 The Basic Principles and Guidelines are therefore an instrument for
strengthening international, regional, and national structures that guarantee not only
the substantive dimension of the right of victims to remedy a harm suffered, but also
its procedural dimension of ensuring victims’ access to justice.127 This framework also
encompasses the codifications of the right in specific international human rights instru-
ments: UDHR Article 8; ICCPR Article 2(3); ICERD Article 6; the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) Article 2 (c);
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) Article 14; the Convention on the Rights of the Child (CRC)
Article 39; and the International Convention for the Protection of All Persons from
Enforced Disappearance (ICPED) Article 24.
5.1.1. ICERD and ICCPR

In the context of condemning discrimination on the grounds of race, colour, descent, or
national or ethnic origin,128 ICERD codifies in Article 6 the right to seek ‘ … just and
adequate reparation or satisfaction for any damage suffered as a result of [racial] dis-
crimination’.129 States thus have an obligation to ensure through competent national tri-
bunals and other state institutions victims’ rights to ‘ … effective protection and
remedies’.130 In support of this provision, the CERD Committee explains in its
General Recommendation 26 that ‘ … courts and other competent authorities should
consider awarding financial compensation for damage, material or moral, suffered by
a victim’.131 This is of particular importance because the harmful impact of racial dis-
crimination on victims’ perception of their own worth and reputation is often underes-
timated.132 Solely punishing the perpetrator of such discrimination is therefore
122
UNGA, ‘Contemporary Forms of Racism’ (n 2) paras 25, 60.
123
UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law’ (2005) UNGA Resolution
A/RES/60/147.
124
Ibid. annex para 18. The recognised types of reparations are restitution, compensation, rehabilitation, satisfaction, and
guarantee of non-repetition.
125
UNGA, ‘Contemporary Forms of Racism’ (n 2) paras 37, 38.
126
van Boven (n 22).
127
Ibid. 22.
128
UNGA (n 114) art 1.
129
Ibid. art 6.
130
Ibid.
131
CERD, ‘General Recommendation 26 on Article 6 of the Convention’ (24 March 2000) (56 session, 1399th meeting)
para 2.
132
Ibid. para. 1.
82 R. BIHOLAR
insufficient. Furthermore, the Committee urges state parties in General Recommen-

dation 34 to ensure adequate compensation to victims of racially motivated
crimes.133 With specific regard to the lingering detrimental effects of slavery and colo-
nialism on people of African descent,134 the Committee recommends in its General
Recommendation 33 that state parties implement DDPA,135 and thus address the
wrongs instituted on people of African descent through colonialism and the transatlan-
tic slave trade.
ICCPR Articles 2 (1) and 26 prohibit discrimination on grounds of, inter alia, race,136
with Article 26 particularly concerned with the equal protection of the law.137 Further, in
Article 8 (1) and (2), it makes express provisions for the prohibition of slavery and slave
trade,138 with no possibilities for derogation.139 Like other human rights treaties, the
ICCPR makes it a state obligation to guarantee an effective remedy and access to
justice to any person whose rights have been violated under it.140 The treaty further
uses the strong language of enforceability to articulate that states have an obligation to
enforce the right to remedies (Article 2 (3) (c)) and to compensation (Article 9 (5)),
when relevant.141
The state obligations and the rights detailed in the ICERD and ICCPR can be mate-
rialised through implementing measures taken by state parties. Several mechanisms are
established to monitor the implementation of the Conventions, assessing the compli-
ance of state parties with the standards therein and offering avenues for Convention
rights to be realised. These mechanisms include state reporting, individual complaints,
and inter-state communications. The state reporting mechanism requires states to
undertake a comprehensive review of measures taken within their jurisdictions to
bring their domestic legislation and practice into conformity with the norms they
have agreed upon by ratifying the Conventions.142 Where a state party declares recog-
nition of the CERD Committee’s competence to consider individual complaints with
respect to its jurisdiction, individuals or group of individuals within that state party’s
jurisdiction may submit communications claiming state violations of their Convention
rights, when domestic remedies have been exhausted.143 The individual complaints
mechanism applies under ICCPR only when states have become party to the Optional
Protocol to the ICCPR.144 The inter-state complaints procedure, also referred to as
inter-state communications, enables state parties to submit a complaint to the relevant
human rights treaty body about alleged treaty violations committed by another state
party within its jurisdiction.145 Three such inter-state complaints have been submitted
to the CERD Committee, namely inter-state communications Qatar v Kingdom of
133
CERD, ‘General Recommendation 34’ (n 120) para. 37.
134
Ibid. para 17.
135
CERD, ‘General Recommendation 33 Follow-up to the Durban Review Conference’ (2009) CERD/C/GC/33 para 1(i).
136
UNGA (n 115) arts 2(1), 26.
137
Ibid. art 26.
138
Ibid. art 8(1) & (2).
139
Ibid. art 4(2).
140
Ibid. art 2(3), (a) & (b).
141
Ibid. arts 2(3)(c), 9(5).
142
UNGA (n 114) art 9; UNGA (n 115), art 40.
143
UNGA (n 114) art 14.
144
UNGA, Optional Protocol to the International Covenant on Civil and Political Rights (19 December 1966) UNTS vol 999
art 1.
145
UNGA (n 114) art 11; UNGA (n115) art 41.
Saudi Arabia146 and Qatar v United Arab Emirates,147 both submitted on 8 March 2018,
and the inter-state communication State of Palestine v Israel, submitted on 23 April
2018.148 No inter-state communication has been submitted under the ICCPR.
5.1.2. The right to development

The ethical duty of former colonial powers, currently industrialised countries, to pay
reparations to decolonised developing countries in the Caribbean was highlighted in
1977 at the third session of the UN Commission on Human Rights.149 The legal obli-
gation of the international community, and especially of industrialised countries, to
promote development has thus been reaffirmed,150 reminding about the already existing
agreement on this legal duty codified in the UN Charter Articles 55 and 56,151 and reas-
serted in a rights language by UDHR,152 which makes specific provisions that speak to
development as a human right.153 The adoption of the International Covenant on Econ-
omic, Social and Cultural Rights (ICESCR) and the ICCPR,154 which together with
UDHR form the International Bill of Rights, strengthens the legal obligation of states
to cooperate in achieving development.155 Explaining the international dimension of
this right, the UN Secretary General stated in 1979 that it contains the duty of reparations
in order to make amends for the historical exploitation by colonial powers.156 It is there-
fore clear that a human right to development (RTD) has taken shape in international law
and that connections have already been drawn between this right and calls for repara-
tions.157 The UN Declaration on the Right to Development (the Declaration), for
example, recognises in Article 5 that human rights violations prevailing in contemporary
societies may be rooted in the historical institutions and processes of apartheid, racism
and racial discrimination, colonialism, foreign domination, and occupation.158 Accord-
ingly, RTD instructs states to address these harms to allow healing and historical closure
on such incontestable wrongs, enabling in this way a holistic approach to tackling present
day injustices.159
RTD, as articulated in the Declaration, has the potential to make a normative contri-
bution to reparations calls not only because of the explicit condemnation of colonialism
in Article 5, but also because it demands action from states with a view to ‘ … promot
146
OHCHR, ‘Decision of the ad hoc Conciliation Commission on the request for suspension submitted by Qatar concerning
the interstate communication Qatar v the Kingdom of Saudi Arabia’ (2021).
147
OHCHR, ‘Decision of the ad hoc Conciliation Commission on the request for suspension submitted by Qatar concerning
the interstate communication Qatar v the United Arab Emirates’ (2021).
148
CERD, ‘Decision on the admissibility of the inter-State communication submitted by the State of Palestine against
Israel’ (2021) CERD/C/103/R6.
149
OHCHR, ‘Realizing the Right to Development: Essays in Commemoration of 25 Years of the United Nations Declaration
on the Right to Development’ (2013) 9–10.
150
UNCHR, ‘Report of the Secretary General’ (1979) E/CN4/1334 para 55.
151
UN, Charter of the United Nations (24 October 1945) 1 UNTS XVI arts 55, 56.
152
153
Ibid. art 22.
154
UNGA, International Covenant on Economic, Social and Cultural Rights (16 December 1966) UNTS vol 993.
155
UNCHR (n 150) para 55.
156
UNCHR, ‘REVIEW OF FURTHER DEVELOPMENTS IN FIELDS WITH WHICH THE SUB-COMMISSION HAS BEEN CONCERNED,
Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human
rights and fundamental freedoms. Final report submitted by Special Rapporteur Mr Theo van Boven’ (2 July 1993)
E/CN4/Sub2/1993/8 para 24.
157
Shepherd (n 30) 3–4.
158
UNGA (n 116) art 5.
159
Ibid.
84 R. BIHOLAR
[ing] more rapid development of developing countries’ to provide them ‘ … with appro-
priate means and facilities to foster their comprehensive development’.160 The right
exposes the hierarchical relationships of power emerging largely from colonial relations
between developed and developing nations, and challenges the historical exclusion of the
latter from global development processes. It requires equitable participation in develop-
ment processes and combating inequalities and discrimination in all its forms,161 and it
insists that besides the international community, developed states are duty bearers in
relation to developing countries, which become rights holders under this right.162
After all, as Bedjaoui has explained, ‘ … four fifths of the world’s population no
longer accept that the remaining fifth should continue to build its wealth on their
poverty’.163 Reparations calls, including formal apology, debt relief, technological trans-
fer,164 are not therefore mere entreaties for charity from past colonial powers,165 which
reproduce the submissive position developing nations have traditionally held in the long-
standing power relation between nations. RTD and reparations are clearly intercon-
nected; both call for holding the relevant states accountable for the historical injustices
presently affecting developing societies, and both require those states to repair.
This duty to repair asserts and demands respect for an equitable process of develop-
ment for developing nations and implies their recognised right to reparations. The cat-
egory of developing nations as rights holders under RTD has the potential to create an
authoritative human rights ground for reparations claims on the international arena.166
5.2 International human rights law barriers to reparations for chattel slavery
Despite the abovementioned potentiality of the ICERD, ICCPR, and RTD to offer human
rights law pathways to support reparations for chattel slavery, none of them offer clear,
concrete basis or mechanisms for solid legal claims for reparations for slavery under
international law.
While the substantive dimensions of the ICERD and ICCPR seem to offer a conducive
framework to making reparations for slavery claims by denouncing discrimination on
grounds of race and prohibiting slavery as well as providing for victims’ right to an
effective remedy, procedurally the treaty bodies’ mechanisms cannot support reparations
claims because they are bound to the territory of the concerned state. Treaty bodies’ state
reporting mechanisms comprise states’ critical self-assessment of their human rights
track record within their own jurisdiction. Similarly, inter-state communications com-
prise an assessment of a state’s human rights implementation within its own jurisdiction.
While this mechanism takes off at the notice of another state, the decision remains within
the sovereign power of the state concerned. Similarly, the individual complaints
160
Ibid. art 4(2).
161
UNHRC, ‘Report of the Working Group’ (n 24) para 39.
162
For a detailed legal analysis of the multiple duty bearers and rights holders under the right to development, see R
Biholar, ‘The Right to Development: “the Alpha and Omega of rights”’ (2020) Journal of Law, Governance and
Society 12, 21–25.
163
M Bedjaoui, ‘The Right to Development’ in M Bedjaoui (ed), International Law: Achievements and Prospects (Martinus
Nijhoff 1991) 1182 as cited in P Alston and R Goodman (eds), International Human Rights. Law, Politics and Morals (OUP
2013) 1530.
164
See CRC (n 13).
165
Bedjaoui, ‘The Right to Development’ (n 163) 1531.
166
Biholar, ‘Imagining Caribbean Development’ (n 30) 342.
procedure is a mechanism between citizens and their own state. None of these mechan-
isms, as provided so far in the treaties, have the capacity to support Caribbean calls for
reparations from their former colonisers.
As regards to RTD, some argue that implicitly and explicitly it is embodied in inter-
national human rights law.167 However, like calls for reparations, RTD has been debated
and vehemently opposed by developed Global North nations,168 leading to more than
three decades of indecision and a draft treaty being proposed only in May 2020 by the
Working Group on the Right to Development. Yet there is no certain global decision
on an international legally binding document. So far, it is implausible to rely on inter-
national human rights processes to endorse and support reparations for chattel slavery.
6. Subverting the Procrustean Bed of International (Human Rights) Law

Calls for reparations for chattel slavery signify the voices of those from the ‘periphery’ of
international law indicating the ways in which their rights are violated, how they experi-
ence such violations, and what is needed to respond to and redress them. As shown by the
barriers described above, however, reparations find little support in international legal
systems to determine legal pathways to claim accountability and redress. This section
engages in a critical discussion of these systems’ limitations, and shows, in line with
TWAIL scholarship, the exclusionary nature of international law and international
human rights law theory and practice.
6.1 A critique of the limitations to reparations for chattel slavery under

international (human rights) law
Clearly, the answer to the question avidly asked by reparations scholars and advocates of
whether and to what extent reparations calls can avail themselves of international
(human rights) law and mechanisms is disappointing. The principle of non-retroactive
application of the law impedes access to and use of ICJ procedures. The International
Criminal Court (ICC) is limited by its temporal jurisdiction in investigating the historical
injustices of chattel slavery, the slave trade, and colonialism as crimes against humanity.
The human rights treaty bodies oversee the implementation of international human
rights standards and norms within state parties’ own jurisdictions, while RTD, although
a powerful accountability tool, is riddled with contestation and the politics of power
relations between nations.
The constraints currently posed to reparations for chattel slavery evince TWAIL scho-
lars’ claims that international law has been developed by a few Western European powers
through agreements instituted to justify conquest, colonialisation, and slavery, and that it
hence perpetuates the hegemony of Western powers and their imperial rules of division
and exclusion.169 In the case of reparations for chattel slavery, the principle of non-retro-
active application of international law preserves historical injustices and their impact on
167
UNCHR, ‘Report of the Secretary General’ (n 150) para 57.
168
See SAD Kamga, ‘The Right to Development in the African Human Rights System: The Endorois Case’ (2011) De Jure
381.
169
See Anghie, Imperialism (n 69); Baxi (n 17); Bedjaoui, ‘Poverty of the International Order’ (n 68).
86 R. BIHOLAR
those who have inherited slavery’s material and psychological harms. It also denies the
continuous nature of the injustice of chattel slavery.
The ahistorical interpretation of the present170 involved in the conventional analysis of
international law fails to unearth the continuous harm inflicted by the institution of
slavery on the colonised and enslaved populations, as well as on their successors. Scholars
and especially countries contesting reparations invoke Article 13 of the ILC Report, but,
as Beckles shows, the concept of ‘living memory’ embodies the counter-argument that
descendants of slavery are ‘ … still trapped within the living context of the crime and
can illustrate this in terms of a direct cause and effect’.171 Accordingly, as revealed by
Article 14 of the ILC Report, it can be claimed that the intertemporal principle is
subject to exceptions. This article stipulates that the exception of the extension in time
for international responsibility applies when (1) an act continues into the time when
international law considers the act wrongful, and (2) the consequences of the act
extend to a time when the act and its consequences are considered wrongful.172
While the individual complaints procedures under human rights treaty bodies are not
particularly useful for substantiating reparation claims as such, Human Rights Commit-
tee jurisprudence under the ICCPR is useful in illustrating the application of the excep-
tion to the intertemporal principle. Specifically, the Committee’s landmark decision
Sandra Lovelace v Canada, declaring admissible a case in which the violation occurred
before Canada’s ratification of both ICCPR and its first Optional Protocol, validates
the concept of continuing wrongful acts and the significance of examining the continuing
effects of a harm.173 The Committee explained that
It is not competent, as a rule, to examine allegations relating to events having taken place
before the entry into force of the Covenant and the Optional Protocol. Therefore as
regards Canada it can only consider alleged violations of human rights occurring on or
after 19 August 1976 … In the case of Sandra Lovelace it follows that the Committee is
not competent to express any view on the original cause of her loss of Indian status, i.e.
the Indian Act as applied to her at the time of her marriage in 1970. The Committee recog-
nizes, however, that the situation may be different if the alleged violations, although relating
to events occurring before 19 August 1976, continue, or have effects which themselves con-
stitute violations, after that date.174
This decision clarifies that the enduring harmful effects of chattel slavery, manifested at
the time of its practice as well as long after its abolition, cannot be ignored as fundamen-
tal to reparations demands. According to the Commentary on the ILC Draft Articles on
State Responsibility, when consequences, such as pain and suffering caused by an earlier
act continue even if the act has stopped occurring, ‘[s]uch consequences are the subject of
the secondary obligations of reparation, including restitution’.175 This substantiates the
concept of ‘living memory’ in the context of reparations for slavery, and reflects the pos-
ition of the Special Rapporteur on contemporary forms of racism that ‘ … these excep-
tions are vital to the context of reparations related to transatlantic slavery and
170
UNGA, ‘Contemporary Forms of Racism’ (n 2) para 60.
171
Beckles (n 7) 16.
172
ILC (n 96) arts 14, 15; See also UNGA (n 2) para 32.
173
Sandra Lovelace v Canada (30 July 1981) Communication No 024/1977 CCPR/C/13/D/24/1977.
174
Ibid. paras 10–11.
175
ILC (n 102) 60.
colonialism, given the continuing legacies of racial discrimination’.176 But understand-

ably, as TWAIL scholarship makes clear, international law at the time of transatlantic
slavery would not condemn slavery, as that would not have been and still is not in the
interest of those who created and have benefited from its rules. This leads to the argu-
ment that establishing whether slavery was wrong at the time of its occurrence
without considering its continuous character is unjust and perpetuates asymmetric
relations of power between nations, the former colonisers and the colonised. Arguably,
then, reparations represent a concrete disruptive tool to confront and pierce through
what Gathii explains as ‘epistemic violence’, and to substantiate his account that
[q]uite clearly the manner in which international law justified slavery and colonialism and
the ways in which in contemporary times it continues to justify unequal economic relations
between former colonial powers and their former colonies constitutes a form of epistemic
violence.177
Responding thus to reparations call for the continuous crime of slavery is long overdue.
Furthermore, the inability of international human rights law to accommodate such
reparations reflects the one-sided story of international law’s evolution. The TWAIL
argument that international law was unilaterally constructed by a handful of Western
powers acting in their own interests explains why the transatlantic slave trade and the
practice of slavery were not denounced as unjust and morally wrong.178 International
law at the time of the chattel slavery system reflected the morals of a few Western Euro-
pean powers,179 and not those of West Africans.180
Indeed, any discussion of the challenges posed in international law to reparations for
chattel slavery would be incomplete without stressing the positivist divide between ‘civi-
lised’ and ‘uncivilised’ nations, and the concept of sovereignty as key to the theory and
colonial practice of international law.181 Anghie explains that ‘ … in the late nineteenth
century … international law was defined as the law applicable to civilized nations’, com-
prising sovereign Western countries.182 In contrast, ‘other’ non-Western nations were
considered ‘uncivilized’, lacking sovereignty, and thus outside of the law. They lacked
the legal power to be part of the decision making on which, among other factors, inter-
national law was premised.183 This racialised positivist legal project, according to Anghie,
legitimised colonial acts of conquest, occupation, and enslavement.184 As these ‘others’
were unworthy of partaking in the family of nations, African nations evidently could
not, under the positivist approach to international law, participate in its development.
This is echoed in Rodney’s criticism of international law’s tolerance of slavery, and
one-sidedness: ‘Africans did not participate in its making, and in many instances
176
UNGA (n 2) paras 32, 49.
177
Gathii (n 56) 16.
178
T Thipanyane, ‘Current Claims, Regional Experiences, Pressing Problems: Identification of the Salient Issues and Press-
ing Problems in an African Post-colonial Perspective’ in Louise Krabbe Boserup and George Ulrich (eds), Human Rights in
Development: Reparations; Redressing Past Wrongs (Kluwer Law International 2003) 48.
179
RM Spitzer, ‘The African Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery?’ (2002) Van-
derbilt Journal of Transnational Law 1313, 1320 and 1342.
180
Robinson (n 5).
181
A Anghie, ‘What is TWAIL?’ (2000) 94 Proceedings of the Annual Meeting American Society of International Law 39, 39
<https://www.jstor.org/stable/25659346> accessed 15 August 2021; see also Anghie, Imperialism (n 69) 62–63, 66.
182
Anghie, ‘What is TWAIL?’ (n 181) 39; Anghie, Imperialism (n 69) 63.
183
Anghie, Imperialism (n 69) 66.
184
Ibid.
88 R. BIHOLAR
African people were simply the victims, for the law recognized them only as transportable
merchandise.’185
Notably, historians such as Beckles have found that the chattelisation of persons has
never been known in Africa, but developed as a specific tactic targeting Africans which
was exclusive to Western European practice in their Caribbean colonies.186 Chattel
slavery represented a brand of property and broke away from any moral or legal
African or European labour traditions.187 In Beckles’ words, ‘ … it constituted … the
most dehumanizing, violent, socially regressive form of human exploitation known to
human kind’.188 It was resisted by African peoples, including through yearly attacks
against slave vessels,189 and according to Robinson, such resistance is ‘ … sufficient …
to show that that kind of slavery was not permitted in the region’.190 Furthermore,
since chattel slavery was unknown outside of the parameters of Western European prac-
tice in their colonies, Robinson states that ‘ … the absence of a law prohibiting transat-
lantic chattel slavery in West Africa does not mean that West African law permitted
chattel slavery’.191 The discussion in the Enterprise case also indicates that ‘ … the insti-
tution of slavery, in the absence of specific law could not be sustained under any subsist-
ing usage or custom of that country, as it was contrary to the laws of nature and
humanity’.192 This means that despite arguments against reparations claiming the legality
of slavery at the time of the transatlantic salve trade, chattel slavery was a practice
imposed by European powers and not provided for in African law. Moreover, given
the positivist nature of the law of nations premised on the ‘civilised/uncivilised’ divide,
non-European ‘uncivilised’ non-sovereign nations could not partake in the making of
international law rules.193 Considering Anghie’s point that the positivist approach to
international law fuelled the stance that ‘ … the sovereign state can do as it wishes
with regard to the non-sovereign entity’,194 to analyse the wrongfulness of the act of
slavery under international law at the time it was carried from the sole perspective of
Western European practice is thus flawed.195 Reparations calls therefore stand as a
proof of TWAIL arguments that contemporary international law, also through its
silences, perpetuates the coloniality of imperial injustices,196 including racialised hierar-
chies that are ‘ … furthered by ostensibly neutral international law and institutions’.197
Clearly, international legal frameworks spread a procrustean bed for Caribbean
reparations for chattel slavery: while promising equality, inclusiveness, and universality,
they exclude reparations’ ‘other logics’198 for exposing injustice by maintaining barriers
185
Walter Rodney, How Europe Underdeveloped Africa (Bogle-l’Ouverture Publications 1972) 86.
186
Beckles (n 7) 18.
187
Ibid. 19.
188
Ibid.
189
See H Beckles and V Shepherd, Saving Souls: The Struggle to End Transatlantic Trade in Africans (Ian Randle Publishers
2007).
190
Robinson (n 5) 5.
191
Ibid. 4.
192
United Nations, ‘Reports of International Arbitral Awards’ (n 100) 37.
193
Anghie, Imperialism (n 69) 63.
194
A Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999)
Harvard International Law Journal 1, 14.
195
Robinson (n 5) 4.
196
Clarke (n 19) 172.
197
Anghie, ‘What is TWAIL?’ (n 181) 39.
198
Clarke (n 19) 263.
against them. These tensions reflect the rigid, Western quality of international (human
rights) law doctrines and structures to which peripheral actors are subjected without
much say, confirming the claim by Special Rapporteur on contemporary forms of
racism that ‘ … international law has not fully been “decolonized”’.199
6.2 Reparations for chattel slavery: a call from the ‘periphery’ to decolonise
international (human rights) law
This section endeavours to contribute from a Caribbean reparations perspective to
TWAIL arguments for decolonising international (human rights) law. Given this article’s
call for a critical reimagining of these legal frameworks to accommodate reparations for
chattel slavery, this section suggests the potential material implications of such an
undertaking.
The challenges with which scholars and practitioners are confronted in legally
grounding reparations for chattel slavery in international human rights law are a clear
illustration that this body of law is not the inclusive space it promises to be. Instead, it
perpetuates asymmetric relations of power between nations and their interests. Repara-
tions thus urge a rethinking of the parameters of international (human rights) law, and
also show whose voices are truly acknowledged in these legal frameworks and whose are
silenced.
The very call for reparations disrupts long-established international law principles of
non-retroactivity, which immunise historical injustices and the involvement of former
colonial powers, and help thus maintain the status quo of international relations. The
ghost of historical injustices that have haunted postcolonial Caribbean nations
through deep inequalities, human rights abuses, and underdevelopment ignites the sub-
verting energy needed to generate a counter-narrative to the dominant but limited inter-
national human rights law discourse. Questioning the ways in which various branches of
international law have continued to serve as legitimising tools for the historical oppres-
sion of slavery, the slave trade, and colonialism, reparations calls show from their ‘sub-
altern epistemic location’200 the asymmetric dynamics of and constraints of international
human rights law, its structures, institutions, guarantees, and mechanisms. From this
challenging but critical decolonial position, Caribbean reparations calls for chattel
slavery reveal the coloniality perpetuated through international law, including human
rights law, which has facilitated the enduring injustices experienced by those at the ‘per-
iphery’. I therefore argue that calls for reparations are disruptive voices for accountabil-
ity. Speaking from the ‘periphery’, they expose and pierce through the ‘epistemic silences’
of Caribbean people in international (human rights) law,201 revealing that the existing
international legal architecture cannot account for or justify its claims of universality,
inclusiveness, and internationality.
When international human rights law cannot respond to justice claims for historical
harms, it therefore clearly indicates that the colonial imagination constructed on the
compass of exclusion is still the foundation of international legal arrangements and of
199
200
Ibid. para 17.
201
Gathii (n 56) 17.
90 R. BIHOLAR
modern postcolonial societies. The barriers posed to claims for reparations re-enact the
colonial category of ‘disposable people’ and their problems.202 International (human
rights) law thus reproduces centre/periphery power dynamics between former colonisers
and former colonies. While international law and its branches have been a one-sided
construction, however, it is susceptible to change.203 Instead of assuming that inter-
national legal rules and institutions are ‘ … necessarily impartial, objective and
neutral’,204 it should be examined how these rules and institutions have created historical
legacies that have led to debilitating consequences in their application and how that can
be counteracted.205 In light of reparations for chattel slavery, the decolonising call pro-
posed here is that international legal systems should expand from a corpus of rules
and procedures controlled by a few to a more inclusive system in which other nations
and their experiences have a place.206 Furthermore, the decolonising discourse borne
by reparations calls invites ‘finding a new philosophy’ of being in the world according
to social justice ideals.207 This includes, as the Special Rapporteur on contemporary
forms of racism advocates, paying attention to ‘other’ epistemologies, values, experiences,
and legal arrangements and doctrines to inform international processes, and thus starting
to subvert the legacies of colonial injustices.208 In other words, for international human
rights law to be truly meaningful, it also needs to reflect and resonate with experiences,
needs, and knowledge from the ‘margins’.
6.2.1. Accommodating reparations for chattel slavery in international human

rights law
Operating from the ‘periphery’, reparations for chattel slavery expose the power relations
and colonial legacies reproduced and perpetuated through international (human rights)
law. A response to their calls for justice requires challenging this established international
legal framework by creating an inclusive space in international (human rights) law in
which the ‘periphery’s’ requests for reparatory justice are given equal consideration in
the global justice system. This means carefully scrutinising legal frameworks for the
enduring asymmetric relations of domination/subordination, division, and exclusion
mirroring colonial structures of power, and rejecting them. Enabling this space for
reparations for chattel slavery requires, in some respects, reimagining international
(human rights) law. Inspired by the disruptive and reformist drive of TWAIL and adopt-
ing Boxill’s theorisation of justice and reparation, I make suggestions for an international
(human rights) law conducive to reparations for chattel slavery, in which both backward-
looking (reparation) and forward-looking (compensation) responsibilities are taken on
by former coloniser states and the international community (as duty bearers) in respond-
ing to reparations calls. This requires a multifaceted effort involving institutional, pro-
cedural, legal, and policy actions by a wide range of actors operating at various levels,
as explained below, noting that the suggestions made here revolve around duty bearers
and distinguishing the type of responsibility they each have for historical injustices.
202
Baxi (n 17) 30.
203
Spitzer (n 179) 1319.
204
Clarke (n 19) 263.
205
Gathii (n 56)15.
206
Spitzer (n 179) 1319, 1342.
207
UNHRC, ‘Report of the Working Group’ (n 24) para 36.
208
Following from Boxill’s understanding of compensation, the international community

has a forward-looking responsibility to give equal consideration to Caribbean nations,
and accordingly to create a space in the international arena, including in the international
human rights legal frameworks, that is conducive to resolving reparations concerns.
International endorsement of the CRC plan may offer a concrete modality for creating
such a space. This suggestion gives consideration to the fact that the CRC plan is a pro-
posal for what reparations should entail based on the needs of the affected Caribbean
former colonies, designed and owned by these nations, and thus resonant with them.
Grounded on a combination of historical scrutiny (a backward-looking obligation to
repair, like an apology) and present structural injustices considerations (a forward-
looking tool for development, like debt relief), its proposal is pragmatic rather than an
abstract theoretical endeavour.209 The backward-looking responsibility entailed in a
full formal apology would fall under the responsibility of former colonising states, and
would represent an act of recognition of historical wrongs committed as well as an
acknowledgement that Caribbean states and their peoples are equals.210 For the former
colonies, apology signifies ‘ … closure from an indisputably wrong committed’,
emotional healing, and reaffirmed dignity.211 Regarding debt relief, while the unsustain-
ably high debt of Caribbean states is rooted in past colonial exploitation and impoverish-
ment, this CRC demand is a forward looking responsibility intended to remedy the
present situation,212 which economic research identifies as the only plausible measure
for Caribbean economy recovery. 213 Such a forward-looking responsibility requires
that the international community and its relevant financial actors as well as the former
colonising states commit to designing and implementing a reparatory justice plan for
debt cancelation.
Furthermore, demands for technology transfer and advancement of science involve a
forward-looking responsibility applicable not only to states but also to non-state actors
such as relevant Western universities. The historic Memorandum of Understanding
signed by The University of the West Indies (The UWI)214 and the University of
Glasgow (UoG) in 2019 under the ‘Reparatory Justice’ initiative is a particularly signifi-
cant example of assumed forward looking responsibility by non-state actors.215 Acknowl-
edging the university’s historical connection to slavery and its financial benefits from
African enslavement in the Caribbean,216 UoG has committed to collaborating with
The UWI on reparatory-oriented policy research and teaching, taking responsibility to
fully fund research on the legacies of colonialism and slavery in the Caribbean, and to
allocate resources for scholarships and other engagements.217
209
CRC, ‘CARICOM Ten Point Plan for Reparatory Justice’ (n 13).
210
Boxill (n 43) 118.
211
Biholar, ‘Imagining Caribbean Development’ (n 30) 330–31.
212
Boxill (n 43) 117.
213
J Johnston, ‘Partners in Austerity: Jamaica, the United States and the International Monetary Fund’ (Centre for Econ-
omic and Policy Research 2015) 14. See also, Biholar, ‘Imagining Caribbean Development’ (n 30) 322–23.
214
The University of the West Indies (The UWI) is a regional tertiary institution serving the entire Anglophone Caribbean.
215
The UWI Press Release ‘Historic MoU Signed between The UWI and The University of Glasgow’ (31 July 2019) <https://
sta.uwi.edu/news/releases/release.asp?id=21946> accessed 20 December 2021.
216
S Mullen and S Newman, ‘Slavery, Abolition and the University of Glasgow. Report Recommendations of the University
of Glasgow’ (History of Slavery Steering Committee 2018) <www.gla.ac.uk/media/Media_607547_smxx.pdf> accessed
20 December 2021.
217
The UWI Press Release (n 215).
92 R. BIHOLAR
The CRC plan is evidently intended to address present structural injustices within the
Caribbean Community as well as the deep-seated histories of injustice. Its endorsement
by the international community, including the countries responsible, would have a pro-
found impact because it would imply their commitment to taking backward looking and
forward-looking responsibility for historical injustices. This would require rehabilitative
and reparative programmes combining recognition of injustices committed with institut-
ing specific laws and policies applicable to reparations for chattel slavery. It necessitates
scrutinising and amending existing laws with the view to equipping states with the power
to undo legacies of historical injustices, including ‘ … looking to indigenous and other
value and legal systems to inform the process’.218 States would thus engage in a
process of decolonising their laws, policies, and practices.219
Clearly, incorporating the CRC plan in international structures would involve multi-
faced action mobilising a wide range of actors operating on various levels to address the
reparatory requests. This could be operationalised through an international instrument,
i.e. policy, intended to establish and strengthen international, regional, and national
structures concerned specifically with historical injustices and reparatory measures.
Its implementation may be undertaken under the guidance of an international monitor-
ing mechanism, such as a human rights treaty body, mandated to monitor compliance
with the policy. Premised on a forward-looking responsibility, the scope of such initiat-
ive is to mainstream reparatory justice action, as well as to ground the CRC plan in a
human rights legal language. I thus suggest that the already drafted Convention on the
Right to Development220 could provide such a supranational institutional space condu-
cive to reparations for chattel slavery, by which the ‘reparations policy’ would be incor-
porated in the treaty reporting mechanisms overseen by the Convention’s monitoring
body. Involving reparations as a forward-looking responsibility taken by the inter-
national community, such an initiative would be a tool for development or
compensation.
As the Convention does not explicitly articulate reparations for historical injustices
per se, reporting on the reparations policy could be supported by a thematic General Rec-
ommendation (GR) on reparations for historical injustices, including chattel slavery,
guiding states on ways to incorporate reparations in the interpretation of the Convention
and further apply them in implementing the Convention standards. This is done to
address violence against women (VAW) under CEDAW, although the Convention
does not expressly mention VAW in its provisions. In its GR 19,221 the CEDAW Com-
mittee indicates that states must interpret and apply CEDAW having regard of VAW
under specific Convention provisions.222
Notwithstanding the limitations presented by RTD, mainly existing at the global level
because of politics of power and divisions between developed and developing nations,223
this suggestion considers its potential to create an authoritative human rights ground for
reparations claims. Furthermore, notwithstanding the uncertainties about states’
218
219
Ibid.
220
UNHRC, Draft Convention (n 53).
221
Committee on the Elimination of Discrimination Against Women (CEDAW), ‘General Recommendation No 19: Violence
against women’ (1992) A/47/38.
222
Ibid. para 6.
223
See discussion at section 5.2 above.
expression of consent to a global Convention on the Right to Development,224 its recent

drafting expresses the interest of the international community to effectively operationa-
lise the right to development on the international arena,225 and promises to open a space
in international human rights law conducive to reparations for chattel slavery. This pro-
grammatic draft treaty not only encompasses components similar to those identified and
defined in the CRC plan,226 but also makes unambiguous connections between current
human rights violations and, inter alia, colonialism (Article 5(5)) and imposes the obli-
gation on state parties to eliminate such present-day violations. The draft treaty thus
aligns to reparations demands for holding the relevant states accountable for historical
injustices that affect developing societies today, challenging the status-quo. In establish-
ing remedial measures (Article 15), the draft further acknowledges that due to historical
injustices, vulnerable and developing states ‘ … may require special or remedial
measures … through international legal instruments, policies and practices’ (Article 15
(2)). This document therefore has the potential to contribute to an international
human rights law that is more inclusive of ‘peripheral’ calls for justice.
6.2.2. Rethinking international law doctrines

Reimagining international law to enable reparations for chattel slavery would involve the
forward-looking responsibility of the international community to ensure equal standing
for all on the international arena.227 This would require parting with an ahistorical
interpretation of injustices in international law reflected in the application of Article
13, ILC Report as a barring method for reparations claims, and making specific pro-
visions that consider the continuous character of the historical injustices of colonialism
and slavery, including clarifying the application of the exceptions in Article 14, ILC
Report to reparations. This aligns with the statement from the Special Rapporteur on
contemporary forms of racism that ‘[i]nternational lawyers and judges must play their
parts to ensure the decolonization of the applicable legal doctrines’.228 Essentially, the
decolonisation of legal doctrines, such as the intertemporal principle of law in the
context of reparations for chattel slavery, implies a scrutiny of the justice international
law truly administers if its rules dismiss multiple forms of historical wrongs still being
manifested in some parts of the contemporary world. Revising Articles 13 and 14 by
giving consideration to the continuous character of the injustices of colonialism and
chattel slavery, would advance an international law mechanism that ensures that the
backward-looking responsibility to repair of the former colonising states can be
demanded through judicial action under international law.
It can also be argued that establishing such a mechanism corresponds to a backward-
looking responsibility to address injustice and to repair owed by international law
through the international community as well, given that international law has served
as a legitimising tool for the historical oppressions of colonialism and chattel slavery,
224
Consent is expressed through signature and ratification or accession.
225
UNHRC, Draft Convention (n 53) Preamble paras 25–26.
226
To highlight a few similar components: promoting economic and social progress and development (Article 13 (1) (b));
addressing economic, social, health issues, and promoting cultural and educational cooperation (Article 13 (1) (c));
enhancing cooperation on and access to science, technology and innovation (Article 13 (4) (f); facilitating migration
and mobility of persons (Article 13 (4) (h)).
227
Boxill (n 43) 115.
228
94 R. BIHOLAR
enabling the consolidation of colonial structures of subordination and exclusion affecting

contemporary Caribbean societies. The responsibility of the international community
discussed here is reflected in Boxill’s explanation that
Since it is by demanding and giving justice where it is due that the members of a community
continually reaffirm their belief in each other’s equality, a stable and equitable society is not
possible without reparation being given and demanded when is due.229
Demanding justice through reparations is to ask that histories of past injustices in inter-
national law are no longer rendered invisible,230 and to propose, essentially, an inter-
national institutional intervention into colonialism and the ensuing inequalities in
contemporary administration of the larger body of international law.231 Drawing on
TWAIL, the decolonising call proposed here is that international legal systems expand
from a corpus of rules and procedures enabling a few to a more inclusive one embracing
and platforming other nations’ and peoples’ experiences and logics.232
Overall, reflecting on Gathii’s call to challenge the conventional and convenient nar-
rowness of the larger field of international law by stepping outside its beltway to ‘places
often unfamiliar’,233 this section envisions a potential space for reparations for chattel
slavery in international (human rights) law materialised through widening the perspec-
tive from the Western ‘centre’ to the non-Western ‘periphery’234 by endorsing the CRC
plan in an international instrument (a policy or programmatic document); challenging
the dominant narrative of international law by adopting a global legally binding treaty
on RTD to operationalise the endorsed CRC plan;235 and scrutinising and enlarging
international law to enable other meanings, sensibilities, and literacies by revising the
intertemporal principle contained in the state responsibility doctrine to give consider-
ation to the continuous character of historical injustices of colonialism and chattel
slavery.236 Without claiming comprehensiveness, this suggested space sheds light on
the material implications of the forward-looking and backward-looking responsibilities
owed by former coloniser states and the international community, respectively, to Car-
ibbean nations. These suggestions are ultimately intended to provoke further reflection
on what is required for establishing a space in international (human rights) law that
enables, through standards, doctrines, structures, mechanisms, and institutions, Carib-
bean calls for reparations for chattel slavery.
7. Conclusion
This article examined international legal mechanisms, namely international law and
international human rights law, to establish a human rights legal ground for reparations
for chattel slavery. Searching for possibilities but mainly confronted by limitations, it has
shown through the lens of Caribbean reparations for chattel slavery that global legal
229
Boxill (n 43) 119.
230
Clarke (n 19) 33.
231
Ibid. 263.
232
Spitzer (n179) 1319, 1342.
233
Gathii (n 56) 2.
234
Ibid. 22.
235
Ibid.
236
Ibid.
systems make all but no space for ‘ … alternate imaginations of legality and justice’.237 In
fact, these systems continue to spin on the compass of ideologies and regimes of domina-
tion/subordination, inequality, and exclusion,238 reproducing centre–periphery asymme-
tries. The article proposed a reimagining of the existent international legal frameworks to
make them conducive to Caribbean reparations for chattel slavery, which inevitably
requires the re-examination of well-established doctrines, standards, and mechanisms,
as well as challenging prevailing ideologies of superiority/inferiority that maintain
certain nations, peoples, and ideas at the ‘periphery’.
Drawing on the disruptive and reformist drive of TWAIL and adopting Boxill’s theor-
isation of justice and reparation, I made suggestions for a more inclusive international
(human rights) law, in which both backward-looking (reparation) and forward-
looking (compensation) responsibilities are taken by former coloniser states and the
international community (as duty bearers) to respond to Caribbean reparations for
chattel slavery. Concretely, this implies a multifaceted effort involving institutional,
structural, legal, and policy actions by a wide range of actors operating at multiple inter-
national and national levels.
Thinking through such undertakings indicates that for international (human rights)
law frameworks to be truly meaningful, they must reflect and resonate with experiences,
needs, and knowledge traditionally relegated to the ‘periphery’, and subvert the centre–
periphery dichotomy. Caribbean histories, experiences, and worldviews have the poten-
tial to enrich international legal frameworks and contribute to their inclusiveness. This
article argued thus that Caribbean reparations calls for reimagining international
(human rights) law are essentially pleas for an international legal system that is truly uni-
versal, with capacity to ensure ‘ … equality for all in dignity and rights’.239 A more
inclusive future for human rights therefore requires a decolonising of international
(human rights) law.
Disclosure Statement
No potential conflict of interest was reported by the author.
ORCID
Ramona Biholar http://orcid.org/0000-0002-4891-0025
237
Baxi (n 17) 36.
238
Mutua, ‘What is TWAIL?’ (n 63) 31.
239

Reparations For Chattel Slavery A Call From The Periphery To Decolonise International Human Rights Law

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Reparations For Chattel Slavery A Call From The Periphery To Decolonise International Human Rights Law

Uploaded by

Copyright:

Available Formats

Nordic Journal of Human Rights

ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/rnhr20

Reparations for Chattel Slavery: A Call From the

To link to this article: https://doi.org/10.1080/18918131.2022.2082042

Published online: 26 Jul 2022.

Submit your article to this journal

Article views: 289

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

Reparations for Chattel Slavery: A Call From the ‘Periphery’ to

racial discrimination, xenophobia and related intolerance, materialize in structural racial

Accordingly, chattel slavery should be understood as a complex process encompassing

2. Caribbean Reparations for Chattel Slavery: Context and Concept

Furthermore, acknowledgment of injustice is essential to reparation, otherwise ‘ …

3. A TWAIL Conceptual Framework and Methodology

3.1 TWAIL critiques of international (human rights) law

3.2 TWAIL as a critical method of analysis

peripheries of international law. Reasserting An-Na’im’s argument that the human

4. International Law and Reparations for Chattel Slavery

4.1. International law barriers to reparations for chattel slavery

5. International Human Rights Law and Reparations for Chattel Slavery

on the Right to Development.116 Detailing ﬁndings on prospects for and barriers to

5.1 Potentialities of international human rights law

economic deprivation are express manifestations of the continuum between colonialism

5.1.1. ICERD and ICCPR

insuﬃcient. Furthermore, the Committee urges state parties in General Recommen-

5.1.2. The right to development

6. Subverting the Procrustean Bed of International (Human Rights) Law

6.1 A critique of the limitations to reparations for chattel slavery under

colonialism, given the continuing legacies of racial discrimination’.176 But understand-

6.2.1. Accommodating reparations for chattel slavery in international human

Following from Boxill’s understanding of compensation, the international community

expression of consent to a global Convention on the Right to Development,224 its recent

6.2.2. Rethinking international law doctrines

enabling the consolidation of colonial structures of subordination and exclusion aﬀecting

You might also like