Slavery reparations: there's little legal basis to make companies pay for historic actions

The founder of the pub owner Greene King was associated with slavery. CC BY-SA
Two large British companies have announced that they will make undisclosed payments to black and ethnic minorities to pay for their former owners' involvement in the transatlantic slave trade. Pub group Greene King and insurance broker Lloyd's of London both apologized for what they call "inexcusable" acts and "unacceptable misconduct".
This is because the United Nations High Commissioner for Human Rights, Michelle Bachelet, has called on countries to deal with their previous involvement in colonialism and slavery in order to make amends for those still affected. It also follows the announcement last year from the University of Glasgow that it is providing a £ 20m fund to redress the transatlantic slave trade.
What is the legal position when it comes to redressing slavery, and where is the liability of companies likely going from here?
The litigation
For centuries, reparations for slavery have been demanded for the African Americans, the British Caribbean and the Caribbean peoples. In 2001, the UN World Conference against Racism in Durban recommended reparations for racism, but the momentum was lost as these debates were quickly overtaken by September 11 and the war on terror.
Since then, research has uncovered numerous individuals and companies who have benefited from slavery in the past. In addition to Greene King and Lloyd's of London, the British banks HSBC, Barclays and Royal Bank of Scotland have similar connections. In the U.S., JP Morgan, Bank of America and clothing retailer Brooks Brothers were on the list.
Nobody paid reparations, although JP Morgan, for example, set up a scholarship fund and apologized in 2005 for the involvement of its predecessor companies in slavery. A lawsuit in which reparations were requested from the bank and other insurance companies collapsed in 2006. The payments then collapsed from Greene King and Lloyd's of London are not reparations in the legal sense.
In recent decades, reparations have become an important part of international law in order to provide an effective remedy for those suffering from violations. Reparations are meant to defend the rights of victims, to affirm their dignity as human beings and to blame those responsible for their wrongdoing.
Repairs are less about money - though money can certainly offer victims new opportunities - rather than confronting those responsible with their misconduct and getting them to recognize the value of their victims as human beings.
In the past two decades, companies have increasingly paid reparations for their involvement in historical violations. These mainly affected the Holocaust, such as the French and Dutch train operators who transported Jews to concentration camps, Swiss banks that keep Jewish accounts, and various German companies, including Bayer and Volkswagen, that benefited from forced labor during the Second World War.
However, these successful cases occurred when the survivors were still alive or there was sufficient evidence to find a responsible actor for the redress. Time is making legal claims obsolete. All victims of the transatlantic slave trade are long dead, making it legally difficult to speak legally of a direct victim who would be entitled to make a claim. Unless there is new evidence that a company has historically benefited from slavery, there is unlikely to be a basis for legal proceedings.
Under domestic law, there were more general redress claims for colonialism, such as the British government's Mau Mau settlement in 2013, and compensation was granted in Holland for the murder of Indonesian civilians under Dutch colonial rule.
However, these claims were directed against states that are more permanent entities than companies and have different international obligations. The 2011 United Nations Guiding Principles on Business and Human Rights speak of companies that "respect" human rights by preventing violations and "addressing adverse effects on human rights". On the other hand, states have clear obligations to offer reparations in such situations.
However, if the legal claim against companies is quite weak, many can still be considered morally or politically obliged to consider changes.
What reparations require
Repairs can be designed in a different way if legal channels are closed. The Caribbean community (CARICOM) has for years demanded former European colonial powers to make collective and moral reparations for the continuing damage suffered by its 15 member states through the transatlantic slave trade, colonialism and genocide against the indigenous people.
The group's ten-point plan focuses on collective measures in the form of an apology, repatriations to Africa, educational and research opportunities for the reconstruction of cultural institutions, psychological rehabilitation and debt relief. However, no European power has made efforts to meet the demands - including Britain, which refuses to apologize.
At the same time, the "reparations" announced by Lloyd's and Greene King do not perfectly match the victim-centered reparations within the meaning of the international human rights law. There is a danger that only paying money and apologizing for past misconduct can get rid of the past. Such payments run the risk of being seen as a self-serving PR exercise and not a genuine attempt to atone and prevent the wrong.
Instead, an important legal requirement for international reparations is to ensure that victims participate so that compensation is as effective as possible and not just for charity. This is also to avoid repeating the power dynamics of benefactors and beneficiaries, so that victims are treated as rights holders with decision-making powers.
How far can such claims go in the past? Perhaps in today's dealings with slavery and its pervasive effects, we need to look again at the results of the 2001 Durban conference. This would include a broader discussion about the continuing consequences of historical injustice and how we can identify and remedy the continuing effects.
Repairs cannot provide a complete solution. No amount of money, no memorial, or no excuse can completely eradicate the past. However, they are a way to recognize wrongdoing and victimization while striving for justice and social transformation so that such violations do not recur.
This article is republished by The Conversation under a Creative Commons license. Read the original article.
The conversation
Luke Moffett receives funding for researching reparations from the Arts and Humanities Research Council.

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