Patrick Robinson | Inadequacies in CARICOM 10-point plan

The letter of Jamie Pearson, published in the Daily Observer on August 30, ‘CRC reparation plan inadequate’, provides an opportunity not only to address his specific concern but also to comment on certain elements of the plan.

Mr Pearson makes the point that the CARICOM 10-Point Plan (the Plan) does not provide for direct financial compensation to individuals. In fact, compensation is not frequently mentioned in the Plan. This is an odd result, since compensation is, arguably, the most common form of reparations.

The CARICOM 10-point plan is a scheme created by the CARICOM Reparations Commission (CRC) to address reparations due from former European slave-holding states for the practice of transAtlantic chattel slavery (TCS) in the Caribbean.

In my view, the plan is not altogether clear, and in important respects, is quite confusing. The CRC would have been better advised to follow the approach taken by the International Law Commission (ILC), which was established by the United Nations in 1947 and charged with the codification and progressive development of international law.

In 2001, the ILC produced 59 Articles on the Responsibility of States for Internationally Wrongful Acts. Articles 34-39 are devoted to reparation for injury.

The ILC identifies three forms of reparations: restitution, (Article 35) compensation (Article 36) and satisfaction (Article 37).

The purpose of restitution is to ‘re-establish the situation which existed before the wrongful act’. This is not possible in relation to the descendants of transatlantic chattel slavery (TCS), which commenced over 400 years ago and was formally terminated in 1888. However, we must protect the interests of those groups of Jamaicans and other Caribbean nationals, e.g. the Rastafarians, which have for decades argued for repatriation to Africa.

Since restitution cannot make good the damage caused by TCS, we move to compensation which is applicable if the damage is financially assessable.

On June 8, 2023, the Report on Reparations for TCS in the Americas and the Caribbean (The Report) was launched at the UWI. It consists of an Introduction, the Brattle Quantification and two Annexes, which set out periods over which reparations may be paid. Brattle quantified the compensation due for TCS based on the following heads of damages: loss of life and loss of income, personal injury, loss of liberty, pain and anguish, and gender-based violence. Brattle’s Quantification demonstrates that the damage caused by TCS is financially assessable.

MULTI-LAYERED WRONG

The TCS is a complex and multi-layered wrong, and neither restitution nor compensation will make good the damage it has caused. The responsible states must therefore give satisfaction, which covers injury to a state that is not financially assessable, i.e. non-material injury. Satisfaction ‘may consist of an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality’. It should be noted that it is at this final stage that an apology takes place.

The ILC approach may be contrasted with the CARICOM 10-point Plan, the first point of which calls for a full, formal apology. The disadvantage of that approach is that an apology may be made and no reparations follow. On December 19, 2022, the Dutch prime minister made a long apology for the role of his country in TCS. However, despite the prime minister’s statement that with the apology ‘we have written, not a full stop, but a comma’, implying that reparations would follow, to date no reparations have been paid by the Netherlands. On the other hand, the ILC’s approach is more practical in that when the apology is made, compensation, as a remedy, has already been applied, but found to be insufficient to make good the damage caused by the wrongful conduct of TCS.

In my view, what CARICOM states need is not so much a formal apology from the former slave holding states, as the payment of compensation by them to remedy the many ills of TCS. I will shortly be publishing the compensation to be paid by the Church of England in respect of Barbados, the Drax family in respect of Barbados, the Drax family in respect of Jamaica, the Trevelyan family in respect of Grenada, the Gladstone family in respect of Guyana and the Gladstone family in respect of Jamaica.

Note that the 10th point of the Plan contains the only explicit reference to compensation: Debt Cancellation and Monetary Compensation. The third point in the Plan indirectly addresses compensation by calling for a fully funded resettlement programme for those who wish to return to Africa. There is no other reference to compensation in the Plan.

DEVOID OF IMPLEMENTATION DETAILS

The Plan is devoid of implementation details. It merely ‘calls upon European Governments to participate in the CARICOM Reparations Justice Programme’. My information is that this participation will principally take the form of investments by former European slave-holding states in CARICOM states.

That form of participation is not attractive because the funds used by former slave-holding states for investment are actually funds that should be paid to Caribbean states as compensation for TCS. CARICOM states should ensure that these funds are isolated from other government funds and managed by a specially appointed body that is insulated from political pressure. The success of the Electoral Commission of Jamaica shows that such bodies can function effectively. These funds should be used for development purposes to provide services, in areas such as health and education, for the benefit of the descendants of the enslaved. I do not support a call for direct monetary compensation for the descendants of the enslaved. However, I acknowledge that the use of the compensatory sums is best left for determination by each victim state of TCS.

Sixty-two years after the first Caribbean state became independent, there is no need for Europeans to be invited to demonstrate to us how funds, that belong to us as compensation for TCS, should be used for development purposes. I make it clear that there is no objection to Europeans continuing to invest in the Caribbean; the objection is to Europeans utilizing for investment in the Caribbean funds that belong to us as compensation for TCS.

It cannot be overstressed that reparations owed by former European slave-holding states are not to be seen as aid. The USA provided aid to Germany through the 1948 Marshall Plan. Reparations of the unlawful practice for TCS are not of that ilk.

There is another aspect of the Plan that warrants consideration. In the very first paragraph (the first page), the Caribbean Reparations Commission asserts that ‘victims and descendants of these crimes against humanity have a legal right to reparatory justice’. I certainly support a claim that the descendants of the enslaved in the Caribbean have a legal right to reparations for the unlawful practice of TCS.

INCONGRUOUS

However, the claim of a legal right to reparations is incongruous with the tone of the Plan, which is one of entreaty and supplication for help from the former slave-holding States, because Caribbean states cannot on their own clean up the mess left over from colonisation. For example, Point 4 states that Caricom states cannot build the required institutions ‘on their own’ in view of their limited resources, Point 5 which is actually headed, ’Assistance in Remedying the Public Health Crisis’, indicates that Caricom states ’cannot shoulder on their own’ the chronic health conditions and that the health crisis calls for capital ‘beyond the capacity of the Region’; and in Point 7 it is stated that ‘the region cannot do it alone’.

The request for assistance from former slave holding states in Europe could undermine the claim of a legal right to reparations. European states are likely to be confused as to whether we are seeking reparations from them for the unlawful practice of TCS or requesting development assistance from them to address the ill consequences of TCS. What we seek is compensation for the unlawful practice of TCS; this has nothing to do with seeking assistance to remedy particular crises. We will use the compensation to improve our health and other services.

In my view, many of the points in the Plan may be covered by the phrase, ’another appropriate modality ’in the definition of satisfaction in Article 37 of the ILC’s Articles, e.g. Point 4: the Establishment of Cultural Institutions and the Return of Cultural Heritage; Point 7: the Enhancement of Historical and Cultural Knowledge Exchanges. However, satisfaction must not relate to a matter already covered by compensation.

In sum, the Plan is unsatisfactory in many respects.

Judge Patrick Robinson is a former Jamaican member of the International Court of Justice (ICJ) where he served from 2015 to February 2024. Send feedback to columns@gleanerjm.com.