‘AFTER THE CARAVELS SAILED’: CONTINUING WRONG, STATE RESPONSIBILITY, AND THE UNITED NATIONS RESOLUTION ON THE SLAVE TRADE

Abstract

This article examines whether the United Nations General Assembly’s Resolution 80/250, which declares the transatlantic trafficking of enslaved Africans and the racialised chattel enslavement of Africans the ‘gravest crime against humanity’ and identifies claims for reparations as ‘a concrete step towards remedying historical wrongs’, can be grounded in the law of state responsibility. The states that opposed the Resolution, and most of those that abstained, did not dispute the gravity of the trade. Rather, they denied that it could ground a present legal remedy, invoking the intertemporal principle of the Island of Palmas award. This article argues that this objection does not withstand scrutiny. It rests on a partial reading of Island of Palmas, which distinguishes the creation of a legal situation from its continued existence; it assumes a uniform lawfulness which the nineteenth-century treaty record contradicts; and it overlooks the distinction between Article 13 and Articles 14(2) and 15 of the Articles on State Responsibility. The article then develops a ‘doctrine of living harm’, according to which a situation originating in the trade is a continuing wrong only where a determinate obligation binds the state now, the state presently controls the situation, and its present conduct fails to conform to that obligation. Drawing on the case law of the Inter-American Court of Human Rights, the European Court of Human Rights, and the International Court of Justice, the article identifies three modes of continuing wrong (persisting illicit possession, composite wrong, and inherited structural injury) and the five obligations that follow from them.