Unearthing the Legitimacy of CARICOM's Reparations Bid by Antonius R. Hippolyte University of Hull March 2014

Electronic copy available at: http://ssrn.com/abstract=2416790

1

UNEARTHING THE LEGITIMACY OF CARICOM’S

REPARATIONS BID

Antonius R. Hippolyte*

DRAFT Comments Welcomed! I. INTRODUCTION ..................................................................................................................................................................................... 1

II. THE DARKSIDES OF EUROPEAN COLONIZATION OF THE CARIBBEAN ................................ 2

A. A HISTORY OF THE GENOCIDE OF THE CARIBBEAN’S NATIVE PEOPLES .................................... 2

B. THE TRANSATLANTIC SLAVE TRADE AND CARIBBEAN SLAVERY ...................................................... 4

III. THE IMPACT OF NATIVE GENOCIDE AND SLAVERY ON THE CARIBBEAN REGION

TODAY .......................................................................................................................................................................................... 6

IV. CARICOM: THE MAIN PROTAGONIST IN THE REPARATIONS BID .......................................... 10

A. WHAT IS CARICOM? ..................................................................................................................................................................... 10

B. INSTITUTIONAL MAKEUP OF CARICOM .................................................................................................................. 12

V. LOOKING INTO CARICOM’S REPARATIONS CLAIM ............................................................................. 14

VI. REPARATIONS FOR INTERNATIONAL WRONGS: THE CASE OF NATIVE GENOCIDE

AND SLAVERY IN THE CARIBBEAN ...................................................................................................................... 18

A. THE EUROPEAN POSITION ................................................................................................................................................... 18

B. A LEGAL CASE FOR REPARATIONS ................................................................................................................................ 20

VII. CONCLUDING REMARKS ..................................................................................................................................... 26

I. INTRODUCTION

Fourteen Caribbean countries,1 coalescing under the CARICOM banner, are

preparing to bring a class action suit for reparations for native genocide and slavery

against the United Kingdom, France and the Netherlands in the International Court

of Justice (ICJ).2 CARICOM, an international organization, with a common market

at its core, at its 34th regular meeting of the Heads of Government created the

CARICOM Reparations Committee,3 presided over by the prime minister of St.

Vincent and the Grenadines, Ralph Gonsalves, with Barbados, Haiti, Guyana,

Suriname, and Trinidad and Tobago providing political oversight.4 This claim arises

from the reparation desires of Member States for the legacies of native genocide and

slavery, in which almost an entire population of the regions natives peoples was

wiped out by these European settlers and whereby millions of slaves were

* A.A. (H. Lavity Stoutt Community College) British Virgin Islands, LL.B. (Hull), LL.M. (Hull), Ph.D.

Candidate (Hull), Law School, University of Hull, United Kingdom. All errors and views expressed within are

the Author’s own.

1 Antigua and Barbuda, Bahamas, Barbados, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St.

Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, and Trinidad and Tobago.

2 The Voice: UK Government Blocks Caribbean Reparations Bid [Internet] Available from: <

http://www.voice-online.co.uk/article/uk-government-blocks-caribbean-reparations-bid> Accessed on Friday

October 18th 2013.

3 North American Congress on Latin America: CARICOM Moves Forward with the Reparations Committee.

[Internet] Available from: <http://nacla.org/blog/2013/8/8/CARICOM-moves-forward-reparations-

committee>Accessed on Friday October 18th, 2013

4 Caribbean Community Secretariat, Heads agree on reparations follow up action. [Internet] Accessed from:

<http://www.CARICOM.org/jsp/pressreleases/press_releases_2013/pres147_13.jsp> Accessed on Friday

October 18th 2013.


2

transported from Africa to work on plantations in the West Indies for the economic

benefit of these Europeans. These dark sides of the European colonization of the

West Indies may be classified as crimes against humanity, and international law

provides from reparations for such atrocities, given the myriad historical examples

of such reparations.5 However, in the 1830s when Britain ended slavery, the

enslaved people freed, received nothing from the government in compensation for

generations of forced labor, though there was money for slave-owners.6 These vile

crimes continue to have lingering effects in the Caribbean today. CARICOM Heads-

of-States are unanimous in their opinion that these two tragedies have contributed

significantly to underdevelopment of the region. As such it is hoped that reparations

will begin to right the wrongs of the past, namely some measure of economic

compensation to supplement the economies of these countries and acknowledgement

by these countries of the legacies of slavery. The general view is that reparations are

valuable and there needs to be some European recognition of the legacies of slavery.

As such, this article provides, first, a brief history of native genocide and

slavery in the West Indies, otherwise referred to in this article as the dark-sides of

European colonization of the West Indies. Second, it will consider evidence of the

impact of slavery and native genocide on Caribbean countries today, which has

prompted the reparations desires of these countries. Third, it continues by

considering CARICOM’s organizational structure, in an effort to set out its ability as

an international organization (IO) to raise issues on behalf of its Member States.

Fourth, it focuses on the history of the reparations bid and the creation of the

National Reparations Committee, leading up to the actual reparations claim. Fifth,

this article will delve into the issue of reparations in international law. The legal

validity of CARICOM’s reparations claim will be analyzed, considering its strengths

and weaknesses in an effort to provide some preliminary insight into the success of

this reparations bid in international law. It concludes on the basis that that

CARICOM’s claims are valid, as native genocide and slavery were both crimes

against humanity, based on international jurisprudence,7 and reparations should be

made to CARICOM on behalf of the regions peoples consistently with the myriad

examples of reparations that have been made in international law for crimes against

humanity.

II. THE DARKSIDES OF EUROPEAN COLONIZATION OF THE

CARIBBEAN

A. A HISTORY OF THE GENOCIDE OF THE CARIBBEAN’S NATIVE PEOPLES

Notwithstanding the dominance of black people of African ancestry as the

Caribbean’s largest ethnic group today; as will soon be revealed, they are not

indigenous to the Caribbean region. However, prior to CARICOM’s reparations bid,

5 Daily News: Sri Lanka National Newspaper. [Internet] Available from:<

http://www.dailynews.lk/features/make-reparations-slavery-africa> Accessed on December 20, 2013.

6 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,

Jamaica: University of West Indies Press p. 159

7 See the definition of genocide in the Charter establishing the Nuremberg War Crimes Tribunal.


3

little attention was actually paid to the genocide of region’s native peoples or

Amerindians as they are commonly referred to today. The regions native peoples,

Arawaks (Tainos) and Caribs (Kalinagos) originated from South America along the

banks of the Orinoco River in modern day Venezuela.8 About 500 BC these peoples

set out in their canoes from the mouth of the Orinoco towards the islands of the

Caribbean.9 Over a period of just over a thousand years, being constantly pursued

by the warlike Kalinagos,10 the peaceful Tainos came to settle in the Greater

Antilles11 while the their pursuers settled the smaller islands of the Lesser Antilles.

By the time Christopher Columbus landed on the small Bahamian island of San

Salvador in 1492, these peoples had successfully settled the Caribbean, and met a

thriving community of Tainos on Hispaniola. In 1493 Columbus returned with an

invasion force of seventeen ships, appointed at his own request by the Spanish

Crown to install himself as "viceroy and governor of [the Caribbean islands] and the

mainland" of America, a position he held until 1500.12 Setting up shop on the large

island he called Española (today Haiti and the Dominican Republic), he promptly

instituted policies of slavery (encomiendo) and systematic extermination against the

native Taino population. Columbus's programs reduced Taino numbers from as

many as eight million at the outset of his regime to about three million in 1496.13

Perhaps 100,000 were left by the time of the governor's departure. His policies,

however, remained, with the result that by 1514 the Spanish census of the island

showed barely 22,000 Indians remaining alive. In 1542, only two hundred were

recorded. Thereafter, they were considered extinct, as were Indians throughout the

Caribbean Basin, an aggregate population that totaled more than fifteen million at

the point of first contact with Columbus.14 This was by no means the end of it. The

genocidal model for conquest and colonization established by Columbus was to a

large extent replicated by others such as Cortez (in Mexico) or Pizarro (in Peru)

during the following half-century. In the latter sphere the Spanish example was

followed and in certain ways intensified by other Europeans, notably the British.

The British’s brutal practices of annihilation of native people can be seen in the

United States, beginning at Roanoake in 1607 and Plymouth in 1620. Overall the

process of English colonization along the Atlantic Coast was marked by a series of

massacres of native people as relentless and devastating as any perpetrated by the

Spaniards. One of the best-known illustrations drawn from among hundreds was the

slaughter of some 800 Pequots at present-day Mystic, Connecticut, on the night of

May 26, 1637.15 Thus, in the West Indies the same fate met even the warlike

Kalinagos in the Lesser Antilles, by the later arriving Dutch English and French.

Similarly to the Spanish, the native population of the Lesser Antilles was enslaved

to work on tobacco plantations. Those who were not killed by the hard work, which

8 Honeychurch L. (2006) The Caribbean People. (3rd Edition) London: Nelson Thornes Publishers, p. 78


10 Descendants of the Kalinago (Carib) tribe can be found in Dominica today.


12 Ward Churchill, “Columbus and the Beginning of Genocide in the “New World””. [Internet] Available

from:< http://www.mit.edu/~thistle/v9/9.11/1columbus.html >Accessed on November 29th, 2013







4

they were, not use to, were killed by the diseases brought by the Europeans. As soon

as plantation labor proved too strenuous to the islands’ indigenous peoples who were

not use to working under such harsh conditions, Europeans looked towards African

slave labor.

B. THE TRANSATLANTIC SLAVE TRADE AND CARIBBEAN SLAVERY

Trading in slaves has been a feature of both antiquity and the Middle Ages, and

had formed an important part of the Scandinavian economy between the 8th and the

11th centuries.16 But all this was small in comparison with the massive exportation

of human merchandise that took place between the late 16th and early 19th

centuries.17 Modern slavery was in many ways a new beginning and quite unlike its

ancient and medieval predecessors. The European pioneers of the trade in African

slaves were the nationals of the small State of Portugal.18 It began on the morning of

8th August 1444, when the first cargo of 235 Africans, taken from what is now

Senegal, was put ashore at the Portuguese port of Lagos.19 The trade in black gold

had begun. Modern slavery represented the creation of a new form of empire

building. It was developed to supply the manpower for a particular socio-economic

unit- the sugar plantation.20 Following the demand for labor in the mines of

Spanish America, the Portuguese in 1510, began the sale of African slaves there and

for three quarters of a century enjoyed the dominance of the African coasts and of

the slave trade.21 Nonetheless, Portugal was unable to defend its vast claims in

Africa indefinitely, hence its monopoly was increasingly challenged, first by the

Dutch and then by the English, the French and then other Europeans.

To understand the magnitude of the forced movement of Africans to Caribbean

plantations between the 16th and the 19th centuries, it is important to understand

the importance of the sugar plantations to Europe. Before Columbus stumbled on

the Americas in 1492, few Europeans had ever tasted sugar. The limited supply

came all the way from India, and its cost was so high that even a wealthy London

merchant could only consume, on average, one spoonful per year.22 Spain’s discovery

of the islands of the Caribbean changed all that. Conditions there proved perfect for

the cultivation of sugar cane, and by the early 17th century the Spaniards and the

British, Danes and Dutch were all busily cultivating cane plantations from Trinidad

16 Pagden A. (2002) Peoples and Empires: Europeans and the Rest of the World, From Antiquity to the

Present. Phoenix Press, p. 111



18 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers Limited

p. 1






p. 2

22 Smithsonian: Antigua’s Disputed Slave Conspiracy of 1736. [Internet] Available from:<

http://blogs.smithsonianmag.com/history/2013/01/antiguas-disputed-slave-conspiracy-of-1736/> Accessed on

November 30th, 2013.

5

to Puerto Rico.23 Sugar ceased to be a luxury commodity–but demand soared as

prices fell, leaving the new white planter class that ruled the islands among the

wealthiest merchants of their day. The sugar industry therefore became so

important to Britain that at one point it was described as the “richest jewel in the

English crown”.24 However, planters faced difficulty in finding men to farm their

crops. Sugar cane is tough and fibrous, and requires considerable effort to cut; sugar

was then extracted in the inhuman conditions of “boiling houses,” where vast fires

were kept roaring day and night to heat the cane and refine its juices.25 At first the

planters depended on indentured servants brought from home on long-term

contracts, but the work proved too hard for all but the most desperate, and the

islands acquired a reputation as hotbeds of disease. Most poor whites found it easier

to seek work in the fast-growing colonies of North America.26 When they left, the

planters turned to their only other source of manpower–slaves. Between the 16th

and 19th centuries, the slave trade produced the greatest forced migration known to

history. The Lesser Antilles islands of Barbados, St. Kitts, Antigua, Martinique and

Guadeloupe and St. Lucia were the first important slave societies of the Caribbean,

switching to slavery by the end of the 17th century as their economies converted from

tobacco to sugar production. By the middle of the 18th century, British Jamaica and

French Saint Domingue (Haiti) had become the largest and most brutal slave

societies in the region, rivaling Brazil as a destination for enslaved Africans.

The real boom in the slave trade started in the 17th century, with the need for

labor to work the sugar plantations in the West Indies. The Anglo-Spanish Treaty of

Utrecht 1713, which concluded the war of Spanish succession, raised transactions in

African slaves into definite international obligations. Under it, Britain obtained the

valuable monopoly (which was made over to the South Sea Company) to supply

144,000 slaves of both sexes, and of all ages, at the rate of 4,800 negroes a year over

a period of 30 years.27 Between 1492 and 1820 five or six times as many Africans

went to the Americas as did white Europeans.28 An estimated 12 million Africans

were shipped across the Atlantic, and even allowing for the two million who died en

voyage,29 a vast number of slaves survived to reach destinations that ranged from

Brazil to the colonies of North America. Four million of these men, women and

children finished their journeys in the sugar islands of the Caribbean, where—





p. 2








p. 7



29 An example is the 1781 massacre on the slave trade ship Zong, in which hundreds of Africans were thrown

overboard, alive, so that the voyage’s investors would receive insurance compensation for them. The investors

would not have received compensation if the enslaved people had died while on board the ship. See Beckles,

H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide, Jamaica:

University of West Indies Press p. 72-73

6

thanks to the pestilential conditions—huge numbers were required to replace those

who had died. It has been calculated that more than 150,000 slaves had to be landed

in Barbados to produce a stable population of just 20,000: a phenomenon known to

the planters as “seasoning.” The death rates for black slaves in these islands were

higher than birth rates. The decrease averaged about 3 percent per year in Jamaica

and 4 percent a year in the smaller islands. The main causes for this were overwork

and malnutrition. Slaves worked from sun up to sun down in harsh conditions. They

were supervised under demanding masters, who gave them little medical care.

Slaves also had poor living conditions and consequently they contracted many

diseases. The diary of slave owner Thomas Thistlewood of Jamaica details the

extreme violence against slaves, and constitutes important historical documentation

of the conditions for Caribbean slaves.30 For centuries slavery made sugarcane

production possible. The low level of technology made production difficult and labor

intensive. At the same time, the demand for sugar was rising, particularly in Great

Britain. The French colony of Saint Domingue quickly began to out-produce all of

the British islands' sugar combined. Thus, for almost four centuries, Europeans

carried out the trans-Atlantic slave trade exclusively. The profits that accrued were

so enormous, as to form part of the foundation for the prosperity of the Western

world. Slavery was at the heart of colonialism, especially for the British, central not

only to the American southern plantation economies but also to the northern

economies, which exported products to the slave plantations of the West Indies and

southern mainland.31 The slave trade was once considered not only a lawful but

desirable branch of commerce, participation in which was made the object of wars,

negotiations and treaties, between different European countries.32 The French

Republic first abolished slavery in 1794; this took effect in all French colonies.

Slavery in the French West Indies was reinstated in 1802 by Napoleon I as France

re-secured its possessions in the Caribbean, however unsuccessfully in Saint

Domingue leading to its final declaration of independence on January 1st, 1804.

Britain abolished the slave trade in 1807 and the slavery itself in 1833. In France,

the slave trade was abolished by Napoleon in 1815, while slavery was re-abolished

in 1848. Notwithstanding its abolition, slavery has had negative psychological,

material, and social consequences for the descendants of the enslaved.33

III. THE IMPACT OF NATIVE GENOCIDE AND SLAVERY ON THE

CARIBBEAN REGION TODAY

The consequences of the dark sides of European colonization of the West Indies

30 Hall, D. (1999), In Miserable Slavery: Thomas Thistlewood in Jamaica, 1750-86, Jamaica: University of

the West Indies Press.

31 Mieville, C., (2006) Between Equal Rights: A Marxist Theory Of International Law. London: Pluto Press p.

232.

32 Umozurike U. O (1979), International Law and Colonialism In Africa. Enugu: Nwamife Publishers

Limited p. 7

33 Rupert Lewis “Britain’s Black Debt—Reparations for Caribbean Slavery and Native Genocide by Hilary

McD. Beckles (review)”. [Internet] Available from:<

http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/journal_of_interdisciplinary_history/v044/44

.3.lewis.html> Accessed on November 30th, 2013

7

are vividly clear in the Caribbean today. In contrast to their three European

counterparts who all have industrialized economies and who can be said to have

pioneered the industrial revolution as early as the 18th century, 34 sustainable

development continues to evade most Caribbean countries. Those who believe that

the European economic boom and colonial expansion of Europeans into the non-

European world were merely incidental, ignore the fact that it was only after the

advent of colonialism, were these European countries able to economically surpass

ancient economies such as that of China and India.35 As such, it is no secret that

colonialism laid the foundation for the vast modern economies of Britain, France and

the Netherlands. In 1834, the UK paid in the region £20 million then 40% of

Britain’s budget, to slave masters for lost of their human property following

abolition of slavery.36 It is claimed that this sum is equivalent to £200 billion

today,37 a sizeable portion of the UK’s current Gross Domestic Product (GDP).

Parliament turned to the technologies of accounting and literacy to track and then

decide who was entitled to compensation. 38 Banks, acting as trustees for

beneficiaries of family fortunes built on slave labor, collected compensation for

slaves lost by their beneficiaries.39 Slavery was profitable until the very end’.40 The

profits made from generations of captivity and the final buyout of slave-owners then

passed down through generations; ‘the avenues used to travel deep into the social

heartland of British societies were annuities, marriage settlements, and legacies’. 41

The slave trade and profits from enslaved labor fueled the economic growth of

Europe from the seventeenth through the middle of the 19th century.42 The profits of

slavery were the vehicle for the family rising from the merchant class to that of

royalty. The 7th Earl of Harewood, born in 1923, was a first cousin to Queen

Elizabeth II. He hosted her 1953 visit to the sugar plantation in the West Indies.

While this is only a single family, it illustrates the connections between slavery and

present wealth in the UK today.43 Few twenty-first century historians doubt the

centrality of slavery to economics.44 In 2007, in the Debate on the Bicentenary of the

Abolition of the Slave Trade in the British House of Commons, Vincent Cable,

34 Xing, L., and Hersh J., (2004), The Genesis of Capitalism: The Nexus Between “Politics in Command” and

Social Engineering. American Review of the Political Economy. p. 116

35 Cassese A. (1992), International Law in Divided World. Oxford. Oxford University Press p. 39 36 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,

Jamaica: University of West Indies Press p. 144 37 Quarterly Americas: CARICOM and Reparations. [Internet] Available from:<

http://www.americasquarterly.org/content/caricom-and-reparations> Accessed on Friday October 18th 2013


Jamaica: University of West Indies Press p. 154 39 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,

Jamaica: University of West Indies Press p. 156-157 40 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,


Jamaica: University of West Indies Press p. 151 42 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &

Abolition: A Journal of Slave and Post-Slave Studies p. 1 43 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,

Jamaica: University of West Indies Press 44 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &

Abolition: A Journal of Slave and Post-Slave Studies p. 2

8

Member of Parliament, made it clear that “Britain should acknowledge in some form

that modern British society owes much of its prosperity and many of its institutions

to what happened all those years ago”.45 In 2012, although having a population of

63.7 million,46 the UK’s GDP per capita was $38,514.47 In the same year, the

population of France was 65.7 million; its GDP per capita was $39,772.48 The

population of the Netherlands was 16.77 million, while its GDP per capita was

$46,054.49 These statistics reveal the vast economies of these European countries;

economic superiority, which is underpinned by European expansion into the non-

European world during the colonial era and the exploitation of slave, labor that it

obviously entailed. However, though there was money for slave-owners, the enslaved

people freed in the 1830s, when Britain ended slavery received nothing from the

government in compensation for generations of forced labor. 50 This lack of

compensation left its mark on the Caribbean. It resulted in the inability of these

former slaves to combat the reverberations of emancipation. Although they were

now free, relations between them and these Europeans, which continued to colonize

these territories after emancipation, were far from equal. Little was done in terms of

transitioning these former slaves from the life of servitude and ‘de-humanization’ to

freedom and ‘re-humanization’. For example, it would be many years before formal

education was made available to these former slaves, and even when such education

became available it was vastly insufficient. This still has a major impact on literacy

rates in the region today, especially among older generations. Even less was done to

augment the development of these people coming out of slavery, who would

eventually have to take over governance of these territories. Apart from what they

had learned on the plantation, little knowledge was imparted on them in terms of

agriculture, which would come to form the primary commodity in most of these post-

colonial countries, given the lack of viable natural resources in most of these islands.

As such, and given that former slave owners retained ownership of the land, most

newly liberated slaves focused on subsistence farming, due to lack of knowledge and

land to embark on commercial farming for export. As a consequence, for a long time

the only jobs to be had was on the lands of former plantations owners. So for the

next century or more after emancipation, the livelihood of the newly liberated class

remained at the mercy of their former masters. As revealed by Beckles, prostitution,

which is rampant among Caribbean black women today, is also a legacy bequeathed

upon them during slavery. Documented evidence exist of the practice of slave owners

encouraging sexual relations of black slave women with white men for money. Due

to the social status of Caribbean countries, this practice continues today. So while

prostitution in countries such as the Netherlands is practiced out of want, due to the

45 Vincent Cable, Member of Parliament, Debate on the Bicentenary of the Abolition of the Slave Trade,

House of Commons, 20 March 2007. See Beckles, H. McD (2013) Britain’s Black Debt: Reparations for

Caribbean Slavery and Native Genocide, Jamaica: University of West Indies Press p. 24 46 Office for National Statistics: Population. [Internet] Available from:

<http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Population>Accessed on December 19th 2013. 47 World Bank Data: GDP per Capita. [Internet] Available from:<

http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 48 World Bank Data: GDP per Capita. [Internet] Available from:<

http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 49 World Bank Data: GDP per Capita. [Internet] Available from:<

http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 50 Beckles, H. McD (2013) Britain’s Black Debt: Reparations for Caribbean Slavery and Native Genocide,


9

many opportunities that exist in these countries; lack of such opportunities in

Caribbean countries has made Caribbean women engage in such practices out of

need. The transition from formal, legal slavery to a reformed system of slavery took

the shape of apartheid in the Caribbean.51 It constituted the platform the ongoing

criminal enrichment of the imperial state and its principal colonial institutional

supporters, particularly those who monopolized their ownership of economic

resources in the Caribbean. 52 These historical factors combined, significantly

influenced early socio-economic conditions in Caribbean countries, which have a

telling effect on the lives of Caribbean people today. So, in comparison to the three

economies aforementioned, the CARICOM Member State with the highest GDP per

capita is the Bahamas,53 which stood at $21,908 in 2012, while unsurprisingly Haiti

held the lowest position with a GDP per capita of merely $771.54 The GDP per

capita of sovereign55 OECS Member States range from U.S. $6,558 in St. Lucia to

$13,969 in St. Kitts and Nevis.56 The paradox here is that, while colonialism and its

manifold evils laid down the foundation for the welfare state in these European

countries and very high standards of living in these countries, the descendants of

those that made these living standards possible continue to struggle in abject

poverty in Caribbean today; reaping none of the fruits of the labor of their ancestors.

The past harms are clear; few doubt the contemporary echoes. The causal link

between the crimes of slavery and the ongoing harm and injury to descendants is

everywhere to be found in the Caribbean. Caribbean countries continue to be

plagued by poverty and underdevelopment, which will continue to hinder their aims

at augmenting their domestic economies. For example, Haiti, with its population of

almost 10 million, falls in the category of LDCs, according to the WTO’s list of least

developed countries,57 and hopes of it graduating from this category anytime in the

near future are remote. Antigua and Barbuda defaulted on its debt obligations in

2010.58 Barbados, most recently has had to shelve an attempt to raise $500 million

in international markets.59 Grenada, is currently facing a debt crisis, and its

finances has been described by the Economist as an “unholy mess, [that] threaten to

push up poverty”.60 St. Kitts and Nevis and Jamaica are currently burdened with



Jamaica: University of West Indies Press p. 22 53 The Bahamas has a population of approximately 300,000. 54 World Bank Data: GDP per Capita. [Internet] Available from:<

http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 55 Montserrat and Anguilla are OECS Member States but are British Dependent Territories.

56 World Bank Data: GDP per Capita. [Internet] Available from:<

http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>Accessed on December 19, 2013. 57 Understanding the WTO: The Organization, Least-developed Countries. [Internet] Available from:<

http://www.wto.org/english/thewto_e/whatis_e/tif_e/org7_e.htm> Accessed on December 20th 2013. 58 Caribbean 360: Grenada default has negative implications for ECCU. [Internet] Available from:

<http://www.caribbean360.com/index.php/business/673881.html#axzz2nwPqJyia> Accessed on December 19th

2013. 59 The Economist, The Caribbean Debt Crisis: God vs Bondholders. [Internet] Available from:

<http://www.economist.com/news/finance-and-economics/21589472-small-debt-ridden-countries-could-benefit-

divine-intervention-god-v> Accessed on December 20th 2013. 60 The Economist, The Caribbean Debt Crisis: God vs Bondholders. [Internet] Available from:


divine-intervention-god-v> Accessed on December 20th 2013.

10

government debt that is 1.4 percent of their GDP, 61 causing St. Kitts and Nevis to

default on its debt obligations in 2011.62 According to the Government of Saint

Lucia’s Economic and Social Review 2012, Saint Lucia has achieved universal access

to primary and secondary education. However, issues of quality and relevance of the

education system remain. 63 These issues include low levels of matriculation

requirements to enter tertiary institutions; mismatch between available job

opportunities and the current skills of school leavers; low output of tertiary

education; insufficient opportunities for school leavers to attain skills training post-

secondary education; insufficient programs to empower youth to create employment

opportunities for themselves; deficit of highly technical skills which are required to

produce higher valued goods and services for export; and the lack of opportunities

for retraining and retooling of the labor force to take full advantage of the

pervasiveness of new technologies. Labor force data suggest that over 61% of the

population, 15 years and over, does not possess certificates above primary level

education.64 Notwithstanding the heavy reliance of St. Vincent and the Grenadines

on tourism, following the collapse of the Caribbean banana export regime, up until

2005, talks of an international airport in St. Vincent and the Grenadines was still

unheard of. These problems are only a few of the problems that plague Caribbean

countries. They reveal the encumbrances, which the governments of these countries

have to overcome in an attempt to improve the socio-economic welfare of these

peoples.

IV. CARICOM: THE MAIN PROTAGONIST IN THE REPARATIONS

BID

A. WHAT IS CARICOM?

As mentioned above, CARICOM is an international organization in the

Caribbean Region, with a common market at its core. It consists of 15 Member

States, 5 associate members and 7 states with observer status. To understand

CARICOM’s role in this reparations bid, it is essential that one understand the

framework, which underpins this regional organization. The Caribbean Community

and Common Market (CARICOM) is the result of a 15-year effort to fulfill the hope

of regional integration.65 This desire for regional integration originated with the

establishment of the British West Indies Federation in 1958.66 The West Indies

61 The Economist, The Caribbean Debt Crisis: God vs Bondholders. [Internet] Available from:


divine-intervention-god-v> Accessed on December 20th 2013. 62 Caribbean 360: Grenada default has negative implications for ECCU. [Internet] Available from:

<http://www.caribbean360.com/index.php/business/673881.html#axzz2nwPqJyia> Accessed on December 19th

2013. 63 Saint Lucia Post 2015 National Consultation Draft Preliminary Report No. 1 pp. 3-4

64 Saint Lucia Post 2015 National Consultation Draft Preliminary Report No. 1 p. 3

65 Caribbean Community Secretariat: History of the Caribbean Community (CARICOM). [Internet]

Available from: <http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on


66 Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, the then St Kitts-Nevis-

Anguilla, Saint Lucia, St Vincent and Trinidad and Tobago. The Federation was established by the British

Caribbean Federation Act of 1956 with the aim of establishing a political union among its members.

11

Federation came to an end in 1962.67 However the Federations end may be regarded

as the real beginning of what is now the Caribbean Community. With the end of the

Federation, political leaders in the Caribbean strived to strengthen the ties between

the islands and mainland,68 by providing for the continuance and strengthening of

the areas of cooperation that existed during the Federation.69 Importantly, Jamaica

and Trinidad and Tobago both attained independence in August of that year and

with this independence came the power to control their own domestic and external

affairs. In announcing its intention to withdraw from the Federation, the

Government of Trinidad and Tobago proposed the creation of a Caribbean

Community, consisting not only of the 10 members of the Federation, but also of the

three Guianas and all the islands of the Caribbean Sea–both independent and non-

independent.70 To discuss this concept, the Prime Minister of Trinidad and Tobago

convened the first Heads of Government Conference in July 1963, which was

attended by the leaders of Barbados, British Guiana, Jamaica and Trinidad and

Tobago. At this Conference, the participating leaders of the four (4) Caribbean

Countries all spoke clearly of the need for close cooperation with Europe, Africa and

Latin America.71

In July 1965, talks between the Premiers of Barbados and British Guiana and

the Chief Minister of Antigua on the possible establishment of a Free Trade Area in

the Caribbean resulted in the announcement of definite plans to establish a Free

Trade Area.72 In December that year, Heads of Government of Antigua, Barbados

and British Guiana signed an Agreement at Dickenson Bay, Antigua, to set up the

Caribbean Free Trade Association (CARIFTA).73 The new CARIFTA agreement

came into effect on May 1, 1968, with the participation of Antigua, Barbados,

Trinidad and Tobago and Guyana. The original idea to permit all territories in the

Region to participate in the Association was achieved later that year with the entry

of Dominica, Grenada, St. Kitts/Nevis/Anguilla, Saint Lucia and St. Vincent in July

67 The decisive development, which led to the demise of the Federation, was the withdrawal of Jamaica - the

largest member - after conducting a national referendum in 1961 on its continued participation in the

arrangement. This led to the now famous statement of Dr Eric Williams, the then Premier of Trinidad and

Tobago that, “one from ten leaves nought”, referring to the withdrawal of Jamaica and signifying and

justifying his decision to withdraw Trinidad and Tobago from the Federal arrangement a short while later.

See Caribbean Community Secretariat: The West Indies Federation. [Internet] Available from: <

http://www.CARICOM.org/jsp/community/west_indies_federation.jsp?menu=community> Accessed on


68 Belize, Guyana and Suriname are the non-island members of CARICOM found on the South American

mainland.


Available from: < http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on



Available from: < http://www.CARICOM.org/jsp/community/history.jsp?menu=community> Accessed on





72 Caribbean Community Secretariat: The Caribbean Free Trade Association (CARIFTA) [Internet] Available

from: <http://www.CARICOM.org/jsp/community/carifta.jsp?menu=community> Accessed on November 28th,

2013.




12

and of Jamaica and Montserrat on August 1, 1968. British Honduras (Belize)

became a member in May 1971.74 At the Seventh Heads of Government Conference

in October 1972, Caribbean Leaders decided to transform CARIFTA into a Common

Market and establish the Caribbean Community of which the Common Market

would be an integral part. At the Eighth Heads of Government Conference of

CARIFTA held in April 1973 in Georgetown Guyana, the decision to establish the

Caribbean Community was brought into fruition with the consideration of Heads of

Government of the draft legal instruments and with the signing by the 11 members

of CARIFTA (the exception being Antigua and Montserrat).75 The Accord provided

for the signature of the Caribbean Community Treaty on July 4 and its coming into

effect in August 1973, among the then four independent countries: Barbados,

Guyana, Jamaica and Trinidad & Tobago. The Georgetown Accord also provided

that the other eight territories - Antigua, British Honduras (Belize), Dominica,

Grenada, St. Lucia, Montserrat, St. Kitts/Nevis/Anguilla and St. Vincent which

signed the Accord would become full members of the Community by May 1,

1974. 76 The Caribbean Community and Common Market (CARICOM) was

established by the Treaty of Chaguaramas, which was signed by Barbados, Jamaica,

Guyana and Trinidad & Tobago and came into effect on August 1, 1973.

Subsequently the other eight Caribbean territories joint CARICOM. The Bahamas

became the 13th Member State of the Community on July 4, 1983, but not a member

of the Common Market.77 Suriname became the 14th Member State of the Caribbean

Community on July 4, 1995. Haiti secured provisional membership on 4 July 1998

and on 03 July 2002 became the first French-speaking Caribbean state to become a

full Member of CARICOM.78

B. INSTITUTIONAL MAKEUP OF CARICOM

Under Article 6 of the revised Treaty of Chaguaramas 2001, the objectives of

the Caribbean Community are to improve standards of living and work;79 the full

employment of labor and other factors of production;80 accelerated, coordinated and

sustained economic development and convergence; 81 expansion of trade and

economic relations with third state; 82 enhanced levels of international




75 Caribbean Community Secretariat: The Caribbean Free Trade Association (CARIFTA) [Internet] Available

from: <http://www.CARICOM.org/jsp/community/carifta.jsp?menu=community> Accessed on November 28th,

2013.







78 In July 1991, the British Virgin Islands and the Turks and Caicos became Associated Members of

CARICOM, followed by Anguilla in July 1999. The Cayman Islands became the fourth Associate Member of

the regional grouping on 16 May 2002, and Bermuda the fifth Associate Member on 2 July 2003.

79 Article 6(a)

80 Article 6(b)

81 Article 6(c)

82 Article 6(d)

13

competitiveness; 83 organization for increased production and productivity; 84

achievement of a greater measure of economic leverage;85 effectiveness of Member

States in dealing with third States, groups of States and entities of any description;86

and the enhanced coordination of Member States’ foreign and foreign economic

policies and enhanced functional cooperation.87

In many ways the institutional makeup of CARICOM is similar to that of other

IOs that exist in the international system. Article 10 of the revised Treaty of

Chaguaramas 2001 sets out CARICOM’s institutional arrangement. According to

article 10(1), the principal organs of the Community are the Conference of Heads of

Government,88 which is the supreme organ of the Community89 and the Community

Council of Ministers,90 which is the second highest organ. Article 10(2) of the treaty

sets out that in the performance of their functions, the principal organs are to be

assisted by the following organs: the Council for Finance and Planning;91 the Council

for Trade and Economic Development;92 the Council for Foreign and Community

Relations,93 and the Council for Human and Social Development.94

For the purpose of this article, of particular importance is the Conference of the

Heads of Government; the main proponent of the reparations bid.95 The Conference

of Heads of Government consists of the Heads of Government of the Member

States,96 although any Head of State may appoint any Minister or other person to

represent him or her at any Meeting of the Conference.97 The primary responsibility

of the Conference is to determine and provide policy direction for the Community.98

It is the final authority for the conclusion of treaties on behalf of the Community and

for entering into relationships between the Community and other international

organizations and States.99 The Conference is empowered take decisions for the

purpose of establishing the financial arrangements necessary to defray the expenses

of the Community and is the final authority on questions arising in relation to the

financial affairs of the Community.100 Subject to the relevant provisions of this

Treaty, the Conference is empowered to exercise such powers as conferred on it by or

under any instrument elaborated by or under the auspices of the Community.101 It is

empowered to establish such Organs or Bodies, as it considers necessary for the

83 Article 6(e)

84 Article 6(f)

85 Article 6(g)

86 Article 6(h)

87 Article 6(i)

88 Article 10(1)(a)

89 Article 12(1)

90 Article 10(1)(b)

91 Article 10(2)(a)

92 Article 10(2)(b)

93 Article 10(2)(c)

94 Article 10(2)(d)

95 Caribbean Community Secretariat, Heads agree on reparations follow up action. [Internet] Accessed from:

<http://www.CARICOM.org/jsp/pressreleases/press_releases_2013/pres147_13.jsp> Accessed on Friday

October 18th 2013.

96 Article (11)(1)

97 Article (11)(2)

98 Article (12)(2)

99 Article (12)(3)

100 Article (12)(4)

101 Article (12)(5)

14

achievement of the objectives of the Community.102 The Conference may issue policy

directives of a general or special character to other Organs and Bodies of the

Community concerning the policies to be pursued for the achievement of the

objectives of the Community.103 Notwithstanding any other provision of this Treaty,

the Conference may consider and resolve disputes between Member States.104

Fundamentally, the Conference may consult with entities within the Caribbean

Region or with other organizations and for this purpose may establish such

machinery, as it considers necessary to achieve the aims of the organization.105 The

Conference is empowered to regulate its own procedure and may decide to admit at

its deliberations, as observers, representatives of non-Member States of the

Community and other entities.106 The powers which the Conference of the Heads of

Government are endowed with by virtue of Article 12, is the basis for CARICOM’s

representation of its Member States in this claim for reparations.

V. LOOKING INTO CARICOM’S REPARATIONS CLAIM

Having established the basis of this claim for reparations and the evolution and

institutional framework of CARICOM, this article seeks to unearth the logic behind

using CARICOM as the medium by which to pursue the reparations desires of these

14 Caribbean countries. At first glance, it appears that in addition to providing a

more organized, cost-effective and politically-influential way of pursuing this claim

for reparations; the general aim of CARICOM in promoting social and sustainable

economic development in the Caribbean region as depicted in the preamble of the

revised Treaty of Chaguaramus 2001, through its various initiatives, is largely in

line with seeking compensation for the regions peoples, stemming from the

enslavement and genocide of their ancestors. More fundamentally however, the

CARICOM Reparations Committee,107 is an offshoot of CARICOM’s Conference of

the Heads of Government, with each Head of State aiming to secure the welfare of

his country in this reparations bid. Therefore, each country has appointed a

reparations committee, tasked, inter alia, with determining the manner in which

reparations will be distributed and who will receive these reparations; with the chair

of each of these 14 individual committees holding a seat on the CARICOM

Reparations Committee.108 Reparations for slavery and native genocide have a long

but troubled history in the Caribbean. Despite international politico-economic

intimidation in the Western world, Caribbean governments believe that there is a

reparation case to be answered by the Europeans in respect of their colonial

102 Article (12)(6)

103 Article (12)(7)

104 Article (12)(8)

105 Article (12)(9)

106 Article (12)(10)

107 North American Congress on Latin America: CARICOM Moves Forward with the Reparations

Committee. [Internet] Available from: <http://nacla.org/blog/2013/8/8/CARICOM-moves-forward-reparations-

committee>Accessed on Friday October 18th, 2013

108 Caribbean Community Secretariat: Communique issued at the conclusion of the First Regional

Conference on Reparations. [Internet] Available from: <

http://www.caricom.org/jsp/pressreleases/press_releases_2013/pres201_13.jsp> Accessed on November 29th,

2013.

15

domination of the West Indies.109 Colonialism resulted in two of the greatest crimes

against humanity ever committed, native genocide and the slave regime and the

century of racial apartheid that followed.110 The primary case is based on the past

brutality and economic benefit–and the current underdevelopment of the Caribbean

region. Essentially, it confronts the vast economic divides between France and Haiti,

the Netherlands and Suriname, and Britain and its numerous former colonies in the

Caribbean basin, given the poverty stricken economies of these former colonies and

their role in laying the foundation of the industrialized economies of their former

colonial masters. It entails a case for reparatory justice for the region’s indigenous

and African descendant communities who are the victims of crimes against

humanity in the forms of genocide, slavery, slave trading, and racial

apartheid.111 Thus, CARICOM Heads-of-State under the CARICOM Reparations

Commission (CRC) has embarked on a ten-point claim for reparations. This case

proposes the delivery of this mandate within the formulation of the Caricom

Reparations Justice Program (CRJP). The CRC asserts that victims and

descendants of these crimes against humanity have a legal right to reparatory

justice, and that those who committed these crimes, and who have been enriched by

the proceeds of these crimes, have a reparatory case to answer.112 The CRJP

recognizes the special role and status of European governments in this regard, being

the legal bodies that instituted the framework for developing and sustaining these

crimes. These governments, furthermore, served as the primary agencies through

which slave-based enrichment took place, and as national custodians of criminally

accumulated wealth. 113 As part of its reparations claim, CARICOM, first, seeks a

full formal apology. Instead of the Statements of Regret that European governments

have made in the past, the healing process for victims and the descendants of the

enslaved require as a precondition the offer of a sincere formal apology by European

governments. Statements of Regret do not acknowledge that crimes have been

committed and represent a refusal to take responsibility for such crimes. Statements

of regrets represent, furthermore, a reprehensible response to the call for apology in

that they suggest that victims and their descendants are not worthy of an

apology. According to the CRC only a full formal apology will suffice. 114 Second, the

CRC seeks a program of repatriation back to Africa. Over 10 million Africans were

stolen from their homes and forcefully transported to the Caribbean as the enslaved

chattel and property of Europeans. The transatlantic slave trade is the largest forced

migration in human history and has no parallel in terms of man’s inhumanity to





111 CARICOM nations unanimously approve 10 point plan for slavery reparations: Leigh Day [Internet]

Available from: <http://www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-

approve-10-point-plan-> Accessed on March 25th 2014.










16

man. This trade in enchained bodies was a highly successful commercial business

for the nations of Europe. The lives of millions of men, women and children were

destroyed in search of profit. The descendants of these stolen people have a legal

right to return to their homeland. Consequently it is the case of these countries that

a repatriation program be established and all available channels of international

law and diplomacy used to resettle those persons who wish to return. A resettlement

program should address such matters as citizenship and deploy available best

practices in respect of community re-integration.115 Third, CARICOM seeks the

initiation and funding of an indigenous peoples development program. It is conceded

that European governments committed genocide on the native Caribbean

population. Military commanders were given official instructions by their

governments to eliminate these communities and to remove those who survived

these atrocities from the region. Genocide and land appropriation went hand-in-

hand. A community of over 3,000,000 in 1700 had been reduced to less than 30,000

in 2000. Survivors remain traumatized, landless, and are the most marginalized

social group within the region. The CRC claims that while the University of the

West Indies offers an Indigenous Peoples Scholarship in a desperate effort at

rehabilitation; it is woefully insufficient. It is therefore conceded that a development

plan is required to rehabilitate this community. 116 Fourth, as part of its claim,

CARICOM seeks the establishment of cultural institutions in the Caribbean basin.

According to the CRC, European nations have invested in the development of

community institutions such as museums and research centers in order to prepare

their citizens for an understanding of these crimes against humanity. These

facilities serve to reinforce within the consciousness of their citizens an

understanding of their role in history as rulers and agents of change. However,

there are no such institutions in the Caribbean where these crimes against

humanity were committed. Caribbean schoolteachers and researchers do not have

the same opportunity. Descendants of these atrocities continue to suffer the disdain

of having no relevant institutional systems through which their experience can be

scientifically told. This crisis must be remedied within the CJRP. 117 Fifth, the CRC

has highlighted the public health crisis in the Caribbean. According to research in

the region, the African descended population has the highest incidence in the world

of chronic diseases in the forms of hypertension and type two diabetes. This

pandemic is the direct result of the nutritional experience, physical and emotional

brutality, and overall stress profiles associated with slavery, genocide, and

apartheid. The CRC claims that while over 10 million Africans were imported into

the Caribbean during the 400 years of slavery, at the end of slavery in the late 19th

century less than 2 million remained. The chronic health condition of Caribbean

blacks now constitutes the greatest financial risk to sustainability in the region.

Arresting this pandemic requires the injection of science, technology, and capital










17

beyond the capacity of the region. Thus, Europe has a responsibility to participate in

the alleviation of this heath disaster. The CRJP addresses this issue and calls upon

European governments to take responsibility for this tragic human legacy of slavery

and colonialism. 118 Sixth, the CRC seeks a program of illiteracy eradication. At the

end of the European colonial period in most parts of the Caribbean, the British in

particular left the black and indigenous communities in a general state of illiteracy.

Some 70 percent of blacks in British colonies were functionally illiterate in the 1960s

when nation states began to appear. Jamaica, the largest such community, was

home to the largest number of such citizens. Widespread illiteracy has subverted the

development efforts of these nation states and represents a drag upon social and

economic advancement. Today, Caribbean governments allocate more than 70

percent of public expenditure to health and education in an effort to uproot the

legacies of slavery and colonization. European governments, therefore, have a

responsibility to participate in this effort within the context of the

CRJP.119 Seventh, the CRC seeks the establishment of an African knowledge

program. The forced separation of Africans from their homeland has resulted in

cultural and social alienation from identity and existential belonging. Denied the

right in law to life, and divorced by space from the source of historic self, Africans

have craved the right to return and knowledge of the route to their roots. According

to these countries, a program of action is required to build ‘bridges of

belonging’.120 Such projects as school exchanges and culture tours, community

artistic and performance programs, entrepreneurial and religious engagements, as

well as political interaction, are required in order to neutralize the void created by

slave voyages. Such actions will serve to build knowledge networks that are

necessary for community rehabilitation.121 Eighth, the CRC seeks psychological

rehabilitation, according to this body, for over 400 years Africans and their

descendants were classified in law as non-human, chattel, property, and real estate.

They were denied recognition as members of the human family by laws derived from

the parliaments and palaces of Europe. This history has inflicted massive

psychological trauma upon African descendant populations. This much is evident

daily in the Caribbean. Only a reparatory justice approach to truth and educational

exposure can begin the process of healing and repair. Such an engagement will call

into being, for example, the need for greater Caribbean integration designed to

enable the coming together of the fragmented community.122 Ninth, the CRC seeks

a technology transfer request from European governments. For 400 years the trade

and production policies of Europe could be summed up in the British slogan: “not a
















18

nail is to be made in the colonies”. The Caribbean was denied participation in

Europe’s industrialization process, and was confined to the role of producer and

exporter of raw materials. This system was designed to extract maximum value from

the region and to enable maximum wealth accumulation in Europe. The

effectiveness of this policy meant that the Caribbean entered its nation-building

phase as a technologically and scientifically ill-equipped- backward space within the

postmodern world economy. Generations of Caribbean youth, as a consequence,

have been denied membership and access to the science and technology culture that

is the world’s youth patrimony. Technology transfer and science sharing for

development must be a part of the CRJP. Tenth, Caribbean governments seek a

program of debt cancellation. Caribbean governments that emerged from slavery

and colonialism have inherited the massive crisis of community poverty and

institutional unpreparedness for development. These governments still daily engage

in the business of cleaning up the colonial mess in order to prepare for development.

The pressure of development has driven governments to carry the burden of public

employment and social policies designed to confront colonial legacies. This process

has resulted in states accumulating unsustainable levels of public debt that now

constitute their fiscal entrapment. This debt cycle properly belongs to the imperial

governments who have made no sustained attempt to deal with debilitating colonial

legacies. Support for the payment of domestic debt and cancellation of international

debt are necessary reparatory actions. 123

VI. REPARATIONS FOR INTERNATIONAL WRONGS: THE CASE OF

NATIVE GENOCIDE AND SLAVERY IN THE CARIBBEAN

A. THE EUROPEAN POSITION

In 2007, the British Prime Minister Tony Blair expressed regret for slavery

during the events marking the bicentennial anniversary of the abolition of the slave

trade by the British Parliament. But he stopped short of an apology, which could

have led to discussions about remedial measures.124 Others have sought to provide

justification as William Devaynes, a former Chairman of the East India Company

did in the 19th century. He supported the slave trade on the basis that if the slave

merchants did not purchase from him and others, their prisoners taken in war

would be killed.125 Since the mid-nineteenth-century abolition of slavery, the call

for reparations for the crime of African enslavement and native genocide has been

growing, but call for reparations have been fragmented, given the diversities that










19

exist among the region’s peoples.126 As such calls for reparations for slavery and

native genocide have been given short shrift by those responsible. A primary reason

for this is as a result of the legal constraints involved in pursuing reparations. For

example, in undermining the reparations objectives of these countries, it is claimed

that slavery existed in antiquity and formed one of the major characteristics of

ancient society. All Empires in history prior to the beginning of the nineteenth

century have been slave-owning societies.127 It was therefore recognized by the

ancient Law of Nations.128 Slavery and the slave trade was facilitated and sustained

by international law. Sadly, it is difficult to say that customary international law

condemns two of the greatest curses which man has ever imposed upon his fellow

man, the institution of slavery and the traffic in slaves.129 In the 19th century case of

The Antelope,130 the U.S. Supreme Court found that since Europe and America had

embarked on the slave trade for two centuries without opposition and without

censure, no jurist could hold that it was illegal or that those who engaged in it might

be punished or deprived of their property.131 The status quo, as it is so often, was

powerful. Arguments against slavery were frequently met first with the response

that slaves, as property could not be taken from their owners.132 The opposition to

slavery was, as Ralph Waldo Emerson acknowledged, a piece with other reform

movements; they were all attacks in some way on property.133 According to Emerson,

“slavery and anti-slavery is the question of property and no property, rent and anti-

rent; and Anti-slavery dare not yet say that every man must do his own work, or, at

least, receive no interest for his money. Yet that is at last the upshot”.134 It is a sad

fact that inhumane behavior frequently has no better defense than that rights to

private property must be respected. Morality is so often sacrificed for money. Just as

people at the time understood the inhumanity – indeed immorality – of slavery, they

also understood the economic necessity of slavery to slave-owners. The pro slavery

literature at the time frequently justified the institution on economic grounds. In

this case, the defense of slave property served its purpose well. For the slave trade

and profits from enslaved labor fueled the economic growth of Europe from the

seventeenth through the middle of the 19th century.135 It is most unfortunate that

these arguments have survived and continue to be argued in the modern day. Sir

Hilary Beckles, who is now the Chairman of the National Reparations Committee,

led the Caribbean, lobby for reparations at the 2001 conference on racism in Durban,

South Africa. The position taken by government delegations from the United States


Jamaica: University of West Indies Press



128 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers

Limited p. 6

129 Umozurike U. O (1979) International Law and Colonialism In Africa. Enugu: Nwamife Publishers

Limited p. 8

130 25 U.S. 66, (1825)

131 Wheaton’s Reports X, 66

132 See, e.g. ‘House of Delegates’, Richmond Enquirer, January 21,1832, 2 (reprinting speech of James

Gholson during debates about the future of slavery in Virginia in the wake of Nat Turner’s rebellion).

133 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &


134 Journals of Ralph Waldo Emerson 7 (Boston: Houghton, Mifflin Co., 1912): 205.

135 Brophy, A. L. (2013) The Case for Reparations for Slavery in the Caribbean (Review Essay), Slavery &


20

and the European Union was that slavery should have been a crime against

humanity, though it was not considered so at the time.136 So, claims for reparations

have been hindered so far for being devoid of any legal content as per Europeans.

Nonetheless, the basis of all European trade law, during colonialism, was that the

colonies were part of the domestic economic space of the nation; hence the capacity

of government to enforce trade laws and investment rights, and ensure compliance

with the will of parliament.137 Thus, for example, the official position of the British

government, that slavery was legal at the time it was enforced does not stand up to

scrutiny of British law. It is insufficient to argue that it was legalized by the colonial

government, which in turn, understood, from its judicial arm, that its illegality in

England created a double standard a contradiction within English civil and common

law.138

B. A LEGAL CASE FOR REPARATIONS

The question of reparations is not just a question of reading twenty-first

century morals back onto actors several centuries ago. To the contrary, some people

at the time knew slavery was wrong. This was not just an attitude held in high-brow

circles; a British newspaper reported in 1824 that the ‘crime of creating and

upholding the slavery of the West Indies is a national crime, and not the crime of

slave-holders alone’.139 Moreover, judges such as U.S. Supreme Court Chief Justice

John Marshall recognized the inhumanity of slavery, even as they justified their

refusal to take action against the international slave trade with arguments such as

other countries are engaged in the international slave trade and have been since the

beginning of time; slavery is economically necessary; and law is distinct from

morals.140 Thus, the National Reparations Committee is drawing on the anti-slavery

movement in Britain. It also draws upon the liberal philosophical, religious, and

legal traditions of Europe, however, to show that the institution and practices of

European slavery in the Caribbean were highly contested and that a considerable

body of opinion opposed slavery on moral grounds.141 For example in Sommersett

v. Steward,142 Chief Justice Mansfield held that, Sommersett, a slave detained on a

ship on the Thames pending his return to the West Indies, was to be discharged;

after a writ of habeus corpus was brought on his behalf. According to his Lordship:

“the state of slavery is of such a nature that, that is incapable of being introduced on

any reasons, moral or political, but only by positive law, which preserves its force

long after the reasons, occasion, and time itself from whence it was created, is erased









140 The Antelope, 25 U.S. 66, 115–16 (1825)





142 (1772) English Reports, Kings Bench vol. 98, p. 499

21

from memory; it’s so odious, that nothing can be suffered to support it, but positive

law”.143 So, while the call for reparations remains a fractured, contentious and

divisive call; in recent years it has generated considerable public interest, especially

within sections of the community that are concerned with issues of social justice,

equity, civil and human rights, education, and cultural identity. The reparations

discourse has been shaped by the voices from these fields as they seek to build a

future upon the settlement of historical crimes. From this has arisen CARICOM’s

case for reparations for slavery and native genocide, as these may be classed as

crimes against humanity. Whether international law recognizes the mass

annihilation of the native people of the Caribbean and the mass kidnap and

enslavement of Africans from their homeland and transportation to plantations in

the Caribbean as crimes against humanity, the following propositions cannot be

denied. First, the mass genocide of the region’s native people and the kidnap and

enslavement of Africans were two of the most wicked criminal enterprises in

recorded human history. Second, no compensation was ever paid by any of the

perpetrators of these vile acts to any of the sufferers. Third that the effects of the

crime continue to be massive, both in terms of the enrichment of the descendants of

the perpetrators, and in terms of the impoverishment of their descendants in the

Caribbean today.144 As soon as these propositions are acknowledged, then the

justice of CARICOM’s claim for Reparations is proved beyond reasonable doubt.145

Culminating in the following: first, native genocide of the regions native peoples and

slavery and the slave trade, both constituted crimes against humanity; second,

international law recognizes the right of victims of crimes against humanity to

reparation; third, international law does not recognize any legal barrier to prevent

those who still suffer the consequences of crimes against humanity from claiming

reparations, even though the crimes were committed against their ancestors; fourth,

reparations agenda should be directed against the governments of those countries,

which promoted and were enriched by the slave trade and the institution of slavery.

Even so, as attractive as the ideals of reparation may sound in practice, in

theory things are not so simple, but this is not because international law does not

provide a remedy for crimes against humanity. It is merely because the

international community attaches minimal importance to this issue. However, in

this context reference should be made to the Latin legal maxim: ubi jus, ibi

remedium: where there is a right, there must be a remedy. In other words,

notwithstanding the unique, massive and multi-faceted nature of the claim, and the

fact that creative and imaginative international jurists will be needed; once the

claim is well-founded in legal principle, and well-recognized by the international

community, remedies and mechanisms will be found.146 International law has never

been static. New structures have often been devised to give effect to recognized

principles. The Nuremberg War Crimes Tribunal is an example of new legal

thinking which brought a measure justice following the atrocities of Nazi Germany

against the Jews. After all, the International Court of Justice, where states can now

143 (1772) English Reports, Kings Bench vol. 98, p. 510

144 Anthony Gifford, “The Legal Basis of the Claims for Reparations”. [Internet] Available

from:<http://www.shaka.mistral.co.uk/legalbasis.htm>Accessed on November 29th, 2013.





22

settle disputes with each other by law rather than by war, was unheard of prior to

1945 establishment of the United Nations (U.N.). Given this state of affairs, the

author finds himself perturbed by the length of time that has elapsed since the

abolition of slavery and the fact that no reparation has ever been made to these

people or their descendants.

In considering the Charter establishing the Nuremberg War Crimes Tribunal, it

is the author’s opinion that CARICOM’s claim for reparations against Britain,

France and the Netherlands for native genocide of the regions native peoples and

slavery is legally valid as they both constitute crimes against humanity. The

Charter of the Nuremberg Tribunal, which later compensated the Jews for the

atrocities of Hitler’s Third Reich, defined crimes against humanity in these words:

“Murder, extermination, enslavement, deportation, and other inhumane acts

committed against any civilian population.... whether or not in violation of the

domestic law of the country here perpetrated”.147

The Charter also gave jurisdiction to the Tribunal to try perpetrator for, among

other crimes, deportation to slave labor or for any other purpose of civilian

population of or in occupied territory. The tribunal found that acts so reprehensible

as to offend the conscience of mankind, directed against civilian populations, are

crimes in international law.148 In 1948, the U.N. promoted the Convention of the

Prevention and Punishment of the Crime of Genocide. Most countries in the

world have ratified it. However, the Convention was merely giving a new legal form

to an old concept in international law. The preamble to the Convention recognized

that ‘genocide is a crime against international law, and that at all periods of history

genocide has inflicted great losses on humanity. Article 2 of the Convention defines

genocide as “any of the following acts committed with intent to destroy, in whole or

in part, a national, ethnical, racial or religious group, such as: killing members of

the group;149 causing serious bodily or mental harm to members of the group;150

deliberately inflicting on the group conditions of life calculated to bring about its

physical destruction in whole or in part 151 ...”. Historians can show without

difficulty how the invasion of African territories, the mass capture of Africans, the

horrors of the middle passage, the chattelisation of Africans in the Americas, the

extermination of the language and culture of the transported Africans, constituted

violations of all these international laws. Therefore, the argument that these

enterprises were legitimate under European law, and accepted as normal most

Europeans, is unavailing today. Europeans did not, then or now, constitute all

mankind, and the conscience of all decent mankind must always have been outraged

by the atrocities that Europeans inflicted on Africans for over 400 years. Thus, it is

not hard to see how the denial of human status to a vast section of humanity,

whether through their enslavement or their annihilation were the ultimate crimes



148 O’Connell D.P. l, International Law for Students

149 Article 2(a)

150 Article 2(b)

151 Article 2(c)

23

against humanity.152

Likewise, international law recognizes the right of victims of crimes against

humanity to reparation. The right to reparation for international wrongs is well

recognized, going as far back as the Permanent Court of International Justice

(predecessor of the International Court of Justice).153 In the Chorzow Factory

Case,154 it was held that: “the essential principle contained in the actual notion of an

illegal act–a principle which seems to be established by international practice and in

particular by the decisions of arbitral tribunals-is that the reparation must, as far as

possible, wipe out all the consequences of the illegal act and re-establish the

situation which would, in all probability, have existed if that act had not been

committed. Restitution in kind, or, if this is not possible, payment of a sum

corresponding to the value which a restitution in kind would bear; the award, if need

be, of damages for loss sustained which would not be covered by restitution in kind

or payment in place of it - such are the principles which should serve to determine

the amount of compensation due for an act contrary to international law [must be

made]”.155 Leading commentators on the subject have recognized the efforts that are

being made by international judicial institutions, which have slowly groped their

way towards the articulate formulation of the rule that the commission of an

international tort (wrong) entails the duty to make reparations.156 The author

acknowledges that most of the case law on reparations concerns the compensation

for specific losses such as the destruction of property, buildings, ships etc. But the

principle is just as valid in the case of illegal actions on a larger scale, which affect

entire peoples, and indeed there are direct precedents for the payment of reparations

in such cases. In 1952, the Federal Republic of Germany reached an agreement with

Israel for the payment of $222 million, 157 following a claim by Israel for

compensation. Israel which was limited to the costs of resettling 500,000 Jews who

had fled from Nazi controlled countries. Much later, in 1990, Austria made

payments totaling $25 million to survivors of the holocaust.158 A number of

agreements have been made under the British Foreign Compensation Act of

1950; lump sum settlements were made by Bulgaria, Poland, Hungary, Egypt and

Romania, and a Tribunal was set up to make awards from the sums made available,

so as to do justice as between many thousands of claimants whose property had been

expropriated. A US-Iran Claims Tribunal was established on 19th January 1981, to

compensate American investors whose properties had been nationalized in Iran.159

Japan has made reparation payments to South Korea for acts committed during the

period of invasion and occupation of Korea by Japan.160 The U.N. Security Council



153 Predecessor of the International Court of Justice.

154 (Germany v. Poland) 1928 PCIJ (Ser. A) No. 17 (Judgment of September 13)

155 (Germany v. Poland) 1928 PCIJ (Ser. A) No. 17 (Judgment of September 13) at 47

156 Schwarzenberge

157 Daily News: Sri Lanka National Newspaper. [Internet] Available from: <




159 Iran-United States Claims Tribunal. [Internet] Available from: < http://www.iusct.net/>Accessed on

December 20, 2013.



24

passed a resolution in 1991, binding in international law, requiring Iraq to pay

reparations for its invasion of Kuwait.161 In 2008, Italy agreed to pay Libya $5

billion as compensation for its 30-year occupation of the country, which ended in

1943.162 Most recently Britain has had to pay reparations in the sum of £19.9

million to the Mau Mau Kenya for torturing these people during the Mau Mau

uprising in the 1950s.163 It is therefore clear that the concept of reparations is firmly

established and actively pursued by states, on behalf of their injured nationals,

against other wrongdoing states.164 Furthermore, the entire body of tort law is

based on the understanding that those who suffer wrongs should be compensated

and that political expediency and moral doubt out not to preclude the onward march

of justice and its conclusion in a fair settlement.165 However, though there was

money for slave-owners, the enslaved people freed in the 1830s when Britain ended

slavery received nothing from the government in compensation for generations of

forced labor,166 and up to this day is yet to receive even an apology from these

European countries. This was the greatest crime committed by the British state

against the African people.167

As news of CARICOM’s reparations desires began circulating, a certain

uneasiness crept into the minds of even those with some basic legal knowledge. This

uneasiness concerned the fact that all the victims of slavery or native genocide must

have perished by now. So how was CARICOM going to overcome the hurdle of

establishing itself as the claimant in this lawsuit on behalf of citizens of its Member

States? These citizens are the descendants of the victims of these atrocities.

However, international law does not recognize any legal barrier to prevent those

who still suffer the consequences of crimes against humanity from claiming

reparations, even though the crimes were committed against their ancestors.168

Whether the descendants of the immediate victims of a crime have a right to

reparations, will depend on the nature of the claim being made. The Austrian

payment, for example, was to survivors of the concentration camps, again to make

reparation for the physical and mental agony of the concentration camps. If a victim

died before the claim was agreed, his claim died with him, since the pain and

161 United Nations Security Council Resolution 687 of 3rd April 1991 provides that “Iraq...is liable under

international law for any direct loss, damage, including environmental damage and the depletion of natural

resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful

invasion and occupation of Kuwait”. See UN Compensation Commission. [Internet] Available from:<

http://www.uncc.ch/introduc.htm> Accessed on December 20, 2013.

162 The New York Times: Italy agree to pay Libya $5 billion [Internet] Available from: <

http://www.nytimes.com/2008/08/31/world/europe/31iht-italy.4.15774385.html?r=0>Accessed on December 20,

2013. 163 The Voice: UK Government Blocks Caribbean Reparations Bid [Internet] Available from: <

http://www.voice-online.co.uk/article/uk-government-blocks-caribbean-reparations-bid> Accessed on Friday

October 18th 2013.










25

suffering were personal to him. For instance, the Order made under the British

Foreign Compensation Act of 1950 provided that the Foreign Compensation

Commission was to treat as established any claim relating to certain property in

Egypt which had been sequestrated by Nasser’s government if the applicant was the

owner “or is the successor in title of such owner”, making it plain that the children

and the grandchildren of the original dispossessed owners were entitled to claim.

Since the unification of Germany, the sons and daughters of property owners, whose

lands were seized after the German Democratic Republic was created, have pursued

claims successfully. No one doubts their right to claim, even though they may have

been children, or even unborn, when their family’s land were taken over. Claims

have been made not only by descendants, but by the nation state which has had to

bear the burden of paying for the consequences of the crime. As stated above, Israel

successfully claimed reparations from West Germany for the costs of resettling

Jewish refugees–even though the state of Israel did not yet exist at the time when

the Nazi regime committed its crimes against the Jews. It is also significant that

West Germany, which felt obliged to meet the claim, was also a different state,

territorially as well as politically, from the German Reich which was responsible for

the atrocities.169 If international law harbors this level of ingenuity and creativity, to

allow a state, which was not, created at the time an atrocity was committed to

successfully claim against another state whose frontiers were fundamentally

different at the time the atrocities were committed; then it should not take any feat

of genius to allow an IO that is representative of the interest of its Members States

to bring claims against states who are more or less the same today as when these

atrocities were committed. In principle, therefore, the passage of time since slavery

ended should be no barrier to CARICOM’s claim provided that it can be established

that the consequences of the crimes of slavery and native genocide continue to

manifest themselves to the prejudice of Caribbean people living in the Caribbean

today and the Diaspora. On this point, the evidence of historical experts is clear and

unequivocal.

CARICOM’s reparations agenda should be directed against the governments of

those countries, which promoted and were enriched by the slave trade and the

institution of slavery. While this IO has done just that, in seeking reparations from

Britain, France in relation to Haiti and the Netherlands in relation to Suriname, it

is the author’s opinion that Spain should be included for its role in the decimation of

the native population of Jamaica. Moreover, here it is more appropriate to

concentrate on the Governments o the countries, which encouraged and supported

the slave trade, which legitimized the institution of slavery, and which has profited

as a result. While it would be possible to identify individual companies which could

be proved to have made vast profits from slavery, and there are plantation owners in

Jamaica, and titled families in England, whose living heirs owe their wealth to

slaving, should these individuals be pursued, the process would inevitably be

somewhat arbitrary, and potentially oppressive, and it would be rejected both by the

targeted individuals themselves and their governments as these defendants had not

perpetrated any wrongs. In the author’s opinion, the reasons why the ‘Defendants’ to

the reparation claim should be governments, are that it is governments which have



26

some measure of control over their national wealth, through their reserves and their

taxation powers; it is governments who must in the end be persuaded that

reparations are to be paid as a matter of justice; it is governments who can

determine whether the debt burden of CARICOM Member States should be forgiven;

and it is governments which are responsible for making international treaties and

implementing them through the passage of laws.

VII. CONCLUDING REMARKS

The forgoing has considered the legitimacy of CARICOM’s reparations claim. It

has considered the atrocities of native genocide of the region’s native peoples and

slavery and the transatlantic slave trade, which have both been summed up as

crimes against humanity. It has considered the consequences of these atrocities on

the Caribbean region today, revealing that the poor economic performance of most

CARICOM Member States is a direct consequence of the economic exploitation of

these territories during the colonial era. It has considered the origin and evolution of

CARICOM, which emerged in an effort to foster a greater degree of integration

among these islands. The debate focused on the ten-point plan in CARICOM’s claim

for reparations as set out by CARICOM’s legal representatives. It then focuses on

the legal claim for reparations. Presenting evidence from both sides of the divide

reveals that like most areas of international relations, considerations of this claim

differ significantly. Notwithstanding this, it is the author’s opinion, for the reasons

aforementioned, that these 14 Member States have a valid legal claim against these

three European countries and CARICOM is the ideal medium for bringing this claim

for reparations. What is less clear is whether IOs such as CARICOM, may pursue

such claims on behalf of their Member States. Representative of the welfare of its

Member States, not only is CARICOM’s Conference of the Heads of Government

endowed with the power, by virtue of Article 12 of the Revised Treaty of

Chaguaramas 2001 to bring this reparations claim; it is also the best means of

bringing a claim on behalf of 14 countries, which span three different languages in

terms of unity, organization, cost-effectiveness and political influence. Moreover, as

previously stated, international law has never been static. New structures have

often been devised to give effect to recognized principles. So, notwithstanding the

unique, massive and multi-faceted nature of the claim, and the fact that creative

and imaginative international jurists will be needed; once the claim is well-founded

in legal principle, and well-recognized by the international community, remedies

and mechanisms will be found.170 If successful, this claim will mark a major

milestone in the fight for a true racially equal world. It will go a long way in putting

to rest the claim of black people that the world is biased against their interests, and

foster greater concern for minority indigenous populations worldwide. Native

genocide of the Caribbean’s native peoples and slavery both constituted two to the

vilest crimes against humanity. In relation to the genocide of the Caribbean’s native

peoples, it has been said that this constitutes an attrition of population in real

numbers every bit as great as the toll of twelve to fifteen million about half of them



27

Jewish most commonly attributed to Himmler's slaughter mills.171 The proportion of

indigenous Caribbean population destroyed by early European settlers in a single

generation is, no matter how the figures are twisted, far greater than the seventy-

five percent of European Jews said to have been exterminated by the Nazis.172 One

issue of contention remains, however, namely in considering the issue of Native

Genocide, Spanish colonizers was the pioneers of this inhumane practice. While it

may be said that no country formally colonized by Spain is a CARICOM Member

State, the Spanish were responsible for the decline of the native Taino population in

Jamaica. Therefore, it seems illogical to not include a key pioneer of both of these

inhumane practices in this reparations bid.





News & Politics

Unearthing the Legitimacy of CARICOM's Reparations Bid by Antonius R. Hippolyte University of Hull March 2014