The case for reparative justice

The discussion around financial reparations for the transatlantic slave trade has been gaining momentum globally for some time. We have seen an increasing number of individuals and organisations rallying for states, businesses and other institutions with links to the transatlantic slave trade to not only acknowledge their role in the enslavement of African people, but also provide some form of compensatory relief to the descendants of the enslaved persons. In the past year, we have seen financial, higher education and religious institutions publicly acknowledging and apologising for past links to the slave trade. Some have also committed to payments to try to rectify the wrongs of the past.

This Perspective considers the reparations cases that have previously been brought before the courts, largely in the United States, discusses the particular issue of limitation periods affecting these claims and looks forward to future developments.

US slavery reparations case law

Unsurprisingly, there have been many legal actions seeking some form of reparation for slavery brought before the courts in the United States. Some of these cases date back to the 1700s and involve small payments, usually in the form of pensions, to formerly enslaved persons. However, no legal action has resulted in any substantial payment from the government or otherwise. We look at two cases which exemplify the issues faced by claimants seeking to obtain compensation

Cato v USA

In the case of Cato v USA (United States Court of Appeals, Ninth Circuit) (1995), three African-American individuals filed a claim against the United States seeking damages from the U.S. government for the lasting impacts of slavery, including loss of culture, psychological trauma, and economic disadvantage, on descendants of enslaved African Americans. The plaintiffs alleged that the “Thirteenth Amendment created a national right for African Americans to be free of the badges and indicia of slavery, [yet] they continue[d] to suffer from the lingering incidents of slavery”, and as such, the United States was liable under the Federal Tort Claims Act (“FTCA”) “for intentionally inflicted harm and violation of duty by the federal government”. The plaintiffs sought “compensation of $100,000,000 for forced, ancestral indoctrination into a foreign society;  kidnapping of ancestors from Africa;  forced labor;  breakup of families;  removal of traditional values;  deprivations of freedom;  and imposition of oppression, intimidation, miseducation and lack of information about various aspects of their indigenous character” and “an acknowledgment of the injustice of slavery in the United States and in the 13 American colonies between 1619 and 1865, as well as of the existence of discrimination against freed slaves and their descendants from the end of the Civil War to the present.” In addition, the plaintiffs sought an apology from the United States.

The case was dismissed for the following reasons:

• Lack of standing: The Court found that the plaintiffs lacked standing because they could not demonstrate a direct and specific injury that the government had caused them personally.
• Sovereign immunity: The US government could not be sued for reparations unless Congress explicitly waived sovereign immunity for such claims, which it had not done.
• Limitation: The Court also noted that the statute of limitations barred the claims.

Re African-American Slave Descendants Litigation

The action in Re African-American Slave Descendants Litigation (United States Court of Appeals, Seventh Circuit) (2006) was brought by descendants of enslaved African Americans. They sought reparations from several companies, including insurers, banks and railroads, who they alleged had directly or indirectly benefited from slavery by facilitating the slave trade, using slave labour, or offering financial services to slaveholders. The legal basis for the federal claim was 42 U.S.C. § 1982, which provides that “all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” The plaintiffs sought disgorgement to the class members of the profits that the defendants obtained from their dealings with slaveowners.

The case was dismissed for the following reasons:

• Lack of standing: The Court held that the plaintiffs lacked standing because they could not demonstrate a direct, personal injury caused by the specific actions of the plaintiffs.
• Limitation: The Court found that the claims were time-barred under the statute of limitations.
• Causation: The Court held that the causal chain was “too long and ha[d] too many weak links for a court to be able to find that the defendants' conduct harmed the plaintiffs at all, let alone in an amount that could be estimated without the wildest speculation.”

Potential limitation solutions

As the above US cases show, a key hurdle to a claim for reparations is the issue of limitation. Given the length of time that has passed since the practice of slavery was legally abolished, potential defendants to a claim will inevitably argue that the limitation period for bringing a claim has long passed.

From an English law perspective, there are a number of solutions to this issue.  First, some causes of action do not have limitation periods.  Notable, there is no statutory limitation period for a restitutionary claim in unjust enrichment.  In High Commissioner for Pakistan in the United Kingdom v Prince Mukkaram Jah [2016] EWHC 1465 (Ch) a claim by Pakistan that it was the beneficial owner of money paid into an English bank account in 1948 by the former independent state of Hyderabad had a real prospect of success.

Further, where the Limitation Act 1980 does apply, it may be possible to extend time under various of its provisions, including Section 14A (Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual); Section 32 (Postponement of limitation period in case of fraud, concealment or mistake) and Section 33 (Discretionary exclusion of time limit for actions in respect of personal injuries or death). 

Of course, for claims relating to the transatlantic slave trade many different laws and jurisdictions will be relevant.  Given that claims may well be formulated as torts and many laws allocate jurisdiction in tort claims to the courts of the place where the harmful event occurred.  That would bring into play the laws of states in Africa, the Caribbean and the Americas. 

Looking forward

As we have seen, there are several obstacles to a claim for reparations. However, the difficulty of the process may not deter potential claimants from taking action. The call for reparations extends beyond monetary relief and the success of such claims is not simply measured by a win in court, but also by raising awareness of the issue and sparking changes in behaviours and procedures.

Claimants here may include states, NGOs and community groups.  The press reports of October 2024’s Commonwealth Summit would indicate that this is an issue that many states believe now is the right time to progress.

That wish should be seen in two wider contexts. First, reparations generally are increasingly a topic being taken up by governments and campaigning groups. A recent example is the previous Polish government’s demand for World War II reparations from Germany. A state’s commitment to litigation could potentially be combined with changes to its own laws that would enable a claim to succeed, such as extending limitation periods.  Another example is the ongoing campaign for the return of artistic and cultural artifacts by Western governments and cultural institutions to their countries of origin.  

Second, there are also alternative measures which strategic litigation could support, including redress schemes and the return of historical artefacts to native countries and communities.  In the UK, schemes are being established to provide redress to the victims of scandals many decades old, including the Infected Blood scandal, which goes back over 50 years to the 1970s.  

Finally, it is important to note that no discussions regarding reparations, in the form of a legal claim or otherwise, can take place without the involvement of the communities directly affected. The tragic irony of the governments that once enslaved Africans being among the arbiters of whether or not their descendants are entitled to compensation should not be lost on anyone. The goal of litigation in this area is not simply to obtain monetary judgments, but to push forward the dialogue on this topic and work towards a holistic package of measures, including an acknowledgement of wrongdoing, an ongoing commitment to initiatives seeking to repair the lasting social and economic damage of slavery in affected communities, and, most importantly, an apology to the descendants of the enslaved persons and their communities for the horrific crimes committed against them. Without this, the affected communities cannot even begin to heal.