Friday, November 22, 2019

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D. African Reparations and the Nonjusticiable Question Doctrine

Whether African states pursue slavery reparations under international law by way of the FSIA, or as a tort under the ATCA, they will still have to contend with the nonjusticiable question doctrine. First and foremost, the African states should argue that the slave-trading states are completely unwilling to negotiate or consider any form of compensation or reparations by legislative or executive means. The African states should point to the overwhelming size of the injustice perpetrated over centuries of colonial domination and enslavement as a dual indicator of both the reason why treaty settlement is impossible and why judicial remedy is essential. The African states should argue that the debt is so great that slave-trading states will never give repayment an adequate consideration.

For the same reason, however, African states should argue that it is imperative that some organ of government address the issue. Judicial resolution of the reparation issue is necessary because treaty or legislative action by the other branches of Western governments is unlikely. To strengthen this argument, the African states should actively pursue settlements by treaty or U.N. resolution. On the one hand, the potential for litigation may help the African states achieve their primary objectives of debt forgiveness and a formal apology through international agreement. On the other hand, the failure to reach such an agreement will fortify the assertion that diplomatic resolution is impossible.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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