Excerpted From: Günther Handl, Redress for Historical Injustices: Haiti's Claim for the Restitution of Post-independence Payments to France, 55 U. Miami Inter-Am. L. Rev. 48 (Fall, 2023) (121 Footnotes) (Full Document)

GüntherHandlOne of the more notable themes of our times is the remarkable increase in the demand--both within domestic societies and at the international level--for the redress of social, economic and other related consequences associated with historical injustices. At the international level, especially in a North-South context, claims related to slavery and the Transatlantic slave trade, as well as other colonial-era atrocities, have acquired special prominence. While these demands tend to vary in terms of their specific objectives, they usually seek an acknowledgement of the moral, if not legal wrongfulness of the incriminated conduct concerned. Frequently, these inter-state level claims are couched in terms of “reparations,” although not necessarily in a technical legal sense. Nevertheless, they always amount to the assertion of a right to what might be referred to as “reparatory justice.” In this surging wave of international representations for redress, Haiti's claim for the restitution of post-independence payments to France, stands out not only because of the monetary amount in issue is relatively “precise and well-documented,” but also, and more importantly, because of the solid international legal basis on which it rests.

There is no need to dwell in detail on the well-known facts that gave rise to the Haitian government's campaign in 2003 advancing its claim for restitution. Rather, it should be briefly noted that following Haiti's successful rebellion and declaration of independence from France in 1804, the former colonial master, in 1825, forced upon its ex-colony an arrangement, pursuant to the terms of a Royal Ordinance of April 17, 1825, whereunder it formally recognized Haiti's status as an independent nation in exchange for an exorbitant sum of money and a 50% reduction of customs duties on all imported French goods. It is unclear what France's grand design, if any, might have been in imposing this deal. It is evident, however, that the terms of the Royal Ordinance were undeniably harsh and ultimately devastating for Haiti: The amount of indemnity demanded--150 million gold francs--was pegged to the gross income generated in pre-independent Haiti, the size of income in turn being a direct function of an economy based on slave labor. As a result, Haiti was forced into adopting a rural code that maintained a country-wide system of servitude resembling pre-independence conditions of slavery. Still, the country proved unable to generate sufficient funds to meet its annual payment obligations beyond a first installment of 30 million francs. And although in 1838 France agreed to reduce the indemnity to 60 million francs, Haiti had to take out massive loans from French bankers, at extremely unfavorable terms, whose repayment created a secondary decades-long financial burden now being referred to as Haiti's double debt. The net result was (as the French King's envoy, Baron Mackau, accurately had predicted) that Haiti, although now fully recognized as independent and sovereign, became “a highly profitable and costless province of France.” Conversely, for the obligated party, the Republic of Haiti, the 1825 Arrangement proved to be a major factor in the decline of its long-term prospects as an economically, politically, and socially viable entity. When President Aristide raised the matter of the “French debt” in April 2003, France quickly rejected the Haitian government's demand as unfounded in international law, as legally being without merit. The French government has essentially maintained this position ever since.

It is the purpose of this article to challenge the validity of this characterization and to document the intrinsic merits of an international legal claim related to Haiti's independence debt, if and when the Government of Haiti might be able and willing again to raise the matter internationally. Specifically, by highlighting the idiosyncratic nature of Haiti's claim for restitution the article will show that its legal basis is stronger, its prospects for successful vindication therefore also more promising compared to the claims of most other countries presently seeking redress for historical injustices associated with slavery or colonialism.

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As noted at the outset, it is the well-founded legal basis of its claim that crucially distinguishes Haiti's situation from that of other nations seeking redress of historical injustices. In other words, while Haiti's demand for redress unquestionably would benefit from the growing world-wide movement calling for reparations for the horrors of slavery and colonialism, it is also categorically different from the latter: It represents a demand for restitution, rather than reparations or reparatory justice. It thus draws on an international legal concept extant contemporaneously with the underlying conduct concerned--the payment of indemnity without valid cause--rather than an ex-post facto legal rationale that has yet to be fully developed or generally accepted. However, notwithstanding this intrinsic advantage relative to other actual or would-be claimant states similarly demanding redress of past injuries, Haiti's way forward is a particularly difficult one. Sadly, the country's present state of quasi-anarchy makes it all but improbable that it might be able to pursue the issue of the French debt in the foreseeable future. To succeed in pressing its claim internationally, indeed, even to be able to benefit fully from international support in this matter, the country must first unite behind the restitution effort, and marshal its national political and legal assets for that singular project. Alas, such a national coming together is inconceivable without prior restoration, throughout the country, of democratic governance and the rule of law, including the respect of fundamental human rights. The long-overdue settlement of France's historic debt to Haiti, it seems, thus must await another day.

Günther Handl is the Eberhard Deutsch Chair in Public International Law at Tulane Law School at Tulane University where his teaching and research interests include public international law, international environmental law and law of the sea.