C. African Reparations Under the Alien Tort Claims Act
Another alternative is to file a suit for reparations in the United States under the Alien Tort Claims Act (ATCA). The primary difficulty with this avenue of slavery reparations is the ten-year statute of limitations derived from the Torture Victim Protection Act (TVPA). African states could argue that the statute of limitations was tolled by the delayed development of a cause of action in international law. This argument reflects the condition of customary international law that is formulated and developed according to the evolving conception of human rights within the international community. The African states would argue that a cause of action did not exist and that, therefore, the statute of limitations did not begin to run until the concept of the prohibition of slavery as a facet of the jus cogens body of international law reached a sufficient level of general acceptance. This argument is, of course, susceptible to the contention that a state cannot be liable under a cause of action until that cause of action actually exists.
Alternatively, the African states could argue that the statute of limitations was equitably tolled by the refusal of the slave-trading states to recognize the jus cogens status of the prohibition of slavery. This argument suggests that the continued practice of slavery until the end of the nineteenth century and the survival of colonialism into the twentieth century represent a fraudulent misrepresentation of the true nature of human rights upon the international community by slave-trading states. By employing this argument, the African states place the slave-trading states in a "catch-22" scenario. From one perspective, the slave-trading states' continued insistence that slavery is not a transcendent evil represents a continuation of that fraud on the international community. However, acceptance of the freedom from slavery as a universal right extending back through time opens the slave-trading states to the same responsibility for their actions. Additionally, African states that have remained in a state of tutelage, as described by Judge Ammoun in Security Council Resolution 276, might argue that their subordinate status on the world stage entitles them to equitable tolling of their causes of action.
At the time of publication for this Note, a class action complaint was initiated in federal district court that will present this equitable tolling argument in the context of reparations for African-Americans. The suit was filed against four companies in the United States that allegedly participated in the slave trade. The first count of that action alleges conspiracy by the companies and asserts that they acted individually and in concert with their industry groups to profit from uncompensated labor derived from slavery. The second count demands the production of records from the period of slave trading. The plaintiff class asserts that the defendants knew or should have known of the existence of these records and that the defendants should be required to produce them. The third count asserts that the defendants committed human rights violations by enslaving and persecuting the ancestors of the African American class members. Counts four and five allege conversion and unjust enrichment, respectively, for the failure by the defendant companies to compensate the enslaved ancestors of the plaintiff class for their labor. The complaint asserts that the general lack of reliable shipping records from the period, the unwillingness of companies to release their records, and the reluctance on the part of Congress to address the issue of reparations justify the delay by the plaintiff class in bringing this action. Arguably, the plaintiffs should not be made to suffer because of the lack of diligence in record keeping and reluctance in producing those records by the defendant companies.