Benedict vs Barbados

It isn’t often that the world of international arbitration collides with the MARVEL multiverse, but it happened last week, when numerous reports suggested that the Republic of Barbados is preparing to bring a claim against actor Benedict Cumberbatch in “an international arbitration court”.

As it turned out, that wasn’t true, or at least not yet, but the story served to highlight two important issues of international law – the questions of reparations for slavery, and jurisdiction.

First, some background. For over two hundred years, the British Empire was enriched by the use of slavery, especially (but not only) in the plantation colonies of the West Indies. In 1808, the United Kingdom outlawed the trade in slaves, and in 1833 the practice of slavery was declared unlawful in most of Britain’s colonies. Vast personal fortunes were amassed by slave owners who, when slavery was abolished, also received compensation from the government for the loss of their “property”. At least two former British Prime Ministers can trace their family wealth to involvement in the slave trade.

No compensation, however, was paid to the former slaves, their families, or the communities from which they had been removed. In recent times, several West Indian nations have agitated for reparations to be paid to the communities populated by the descendants of slaves, who continue to struggle with the legacies of that brutal institution. Barbados has been very prominent in that movement and in 2015, CARICOM, an association of Caribbean countries, began a systematic campaign for the payment of slavery reparations by European governments. It established a body, the CARICOM Reparations Commission, with a mandate to pursue reparations.

But where could such a claim be made?

It’s unlikely that domestic courts will entertain reparations claims. In January last year, a court in the French territory of Martinique dismissed a claim for slavery reparations, on the basis that there was nothing in French law that allowed for such a claim, which would in any case be statute-barred through the passage of time. An English court, presumably, would reach a similar finding, on the basis that everyone involved in the slave trade was simply operating within the law of England as it stood at the time.

So the rational forum would be an international tribunal, applying international law. International law has always accommodated the idea that actions of states may be wrongful, even though they are permitted by the country’s own domestic law. If that idea applies to any conduct, then it must apply to slavery: and the United Nations Universal Declaration of Human Rights specifically outlaws “slavery and the slave trade in all their forms”.

The fact that a wrongful act has occurred doesn’t, however, mean that a remedy exists. There isn’t any “international arbitration court” with a general jurisdiction to adjudicate with disputes between countries. To be sure, the International Court of Justice exists, but it only has jurisdiction to deal with disputes between countries where both countries have agreed to its jurisdiction. Many other international arbitration tribunals are constituted each year to deal with disputes between, or involving, states, but they are usually established under treaties by which governments have agreed to refer disputes to arbitration. Perhaps unsurprisingly, the governments of the United Kingdom, France and the other major slave powers have not agreed to arbitrate slavery reparations claims. Arbitration tribunals derive their jurisdiction from consent, so a country can protect itself against claims in arbitration simply by withholding its consent to the process.

The same principle applies to individuals. It might be possible (though certainly not easy) to construct an argument that individuals who have benefited from inherited slavery-based wealth have a legal (as opposed to moral) obligation to compensate the descendants of the slaves whose labour generated the wealth in the first place. And if so, Benedict Cumberbatch might be one such individual – his ancestors owned slave plantations in Barbados. But no international tribunal would have jurisdiction over Cumberbatch unless he agreed to it.

Perhaps pressure from the Caribbean states will eventually prompt some response from the European states that, historically, benefitted from slavery. Until then, the case for reparations will need to be argued in moral and political terms, rather than in any legal tribunal.