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Excerpted From: Patricia M. Muhammad, The Trans-Atlantic Slave Trade's African Elephant in the International Courtroom: West Africa's Debt of Reparations to the Descendants of the Black Diaspora, 27 U.C. Davis Journal of International Law and Policy 81 (Fall, 2020) (128 Footnotes) (Full Document)

The Trans-AtlaPatriciaMMuhammadntic Slave trade has garnered extensive academic discourse in the areas of history, sociology, and law. For decades, scholar-activists and other advocates for reparations to Blacks of the African Diaspora have found support for their research and proposals in economics and the law of nations. Publicists, such as philosophers and early historians, established that the crimes against humanity that occurred throughout the tenure of this international institution violated public international law. Their economic analyses discuss the vast financial interests that both African and European governments had to consider to ensure that the slave trade was as profitable as their non-human wares, such as textiles and metals. Thus rendering these countries liable for monetary compensation to Blacks of the Diaspora.

Historians have steered the reparations debate toward European nation states for their facilitation, profiteering and leading the helm of crimes against enslaved Africans and their Black descendants. However, this legal and historical discussion has yet to adequately address the role of African kingdoms, specifically tribes and territories in the historic beginnings of the Trans-Atlantic Slave trade under the guise of public international laws. Many blacks of the Diaspora ancestry can be attributed to both Africans and Europeans. The likelihood of both functioning as pivotal actors within the slave trade presents a peculiar dynamic for their pursuit of reparations for the slave trade and its lingering legacies. Whether historians, scholars and grassroot activists' omissions are intentional due to cultural embarrassment of this probability or are due to political implications which may influence the reparations debate, is not clear.

This article will shift the scholarly paradigm concerning reparations, as well as illuminate Africans' intricate function in organizing and receiving financial efficacies from the slave trade. The Trans-Saharan slave trade marked a significant period in North and West African histories pre-sixteenth century. African slavery had already existed in one form or another, and trading in slaves had cultural and geographical implications in both North and West Africa. Religion and economics were also important factors in the development of African slave trading. Additionally, Africans and African Arabs had already established slave trading prior to European explorations and expansion into North African and the western interiors along its seaboard. This article will examine the role that North Africans and primarily West African Catholic converts had during the inception of the Trans-Atlantic Slave trade. Both adherents to Christianity and Islam practiced slavery, whether as a cultural norm or based on interpretation of religious doctrine. However, this article will provide insight as to how race and classism, coupled with religious distinction, factored in and influenced North and West Africans' inclination to participate and help generate the infrastructure of the Trans-Atlantic Slave trade from the sixteenth century onward.

In order for this international market to garner financial success, North and West Africans would have to stabilize their source of African slaves. Amongst the Africans belies a tradition of enslaving captors of war and kidnapping other Africans rendered as immediate servants of the victors. However, this notion was not only practiced by Africans, but was also an accepted tradition among medieval Europeans. As the Trans-Atlantic Slave trade began to formalize, Europeans also initially kidnapped West Africans to become a staple of the slave trade and to ensure a steady flow of revenue for its European participants. Between the two, this paper will discuss how formal negotiations became the norm of international customary practice that would support the Asiento, as well as less formal slave trading agreements and licenses.

Undoubtedly, the slave trade provided economic benefits to European monarchs and privateers. However, economics were not unilateral; just as European nation states benefited financially, so did African monarchs and merchants. Africans were involved in negotiating the sale and price of African slaves to be sold to European merchants, and later codified certain guidelines and policies concerning the slave trade in a series of agreements between the Portuguese and various rulers, and then later with the Dutch. Part II will elucidate how African parties and their European counterparts organized these quasi-legal instruments into a series of documents known as Regimentos, just as European monarchs negotiated peace and the slave trade monopoly amongst themselves by incorporating the terms of the Asiento into international treaties As trading continued between African monarchs and their complements, contact between European slavers and merchants became more frequent, and increasing the former's interest in European goods. In order for African monarchs to maintain their elite privilege among the plebeians that they ruled, it was necessary for the African tribal-elite to possess goods that were unknown to other Africans, or that were simply branded as European. This garnered the curiosity of neighboring hostile tribes and monarchs and would be a primary motivator for the raid and capture of other Africans for sale to the European slave market. This section will also explore the expansion of the Trans-Atlantic Slave trade with regards to imported goods and exported African slaves to European traders, which subsidized their respective commercial interest to the detriment of enslaved Africans and their multi-heritage descendants.

Financial interests, the opening of territorial borders, and the increasing international relationships between African monarchs and European autocracies contributed to the European degradation, slaughter, and torture of Africans. These relationships rendered Africans to slave status with or without justification, to be traded as human commodities deemed as piezas de raza or simply negroes. Both Europeans and Africans are responsible for the crimes against humanity perpetrated against African slaves as well as Black descendants of multi-racial heritage, which directly resulted from the establishment and proliferation of the Trans-Atlantic Slave trade. It is therefore imperative that applicable African nation states are held just as accountable for reparations to Blacks of the Diaspora as their European counterparts. In order to hold these states accountable for reparations, Part III of this article will briefly examine possible legal arguments under international law in which Black descendants may be awarded restitution. This paper will examine various United Nations (hereinafter “U.N.”) Conventions, as well as the law of the high seas and other legal principles in order to substantiate legal claims that Blacks of the Diaspora may assert against participant African nation states. Further, this article will detail the types of restitution which may be rewarded as an introductory measure to compensate for the atrocities committed as a result of the Trans-Atlantic Slave trade.

This section will also briefly discuss general legal arguments that oppose African nations' issuance of restitution to Blacks of the Diaspora. These arguments include procedural legal defenses, such as sovereign immunity and the issue of statute of limitations. Regardless of these legal obstacles, restitution is a reconciliatory measure which can be used to improve relations between Blacks of the Diaspora who continue to suffer from the vestiges of the Trans-Atlantic Slave trade, and those African nations which propagated and reaped profits to their detriment. Part IV clarifies the obligation for reparation advocates to provide a cohesive legal argument for restitution on an international platform based on justice and equity. Reparationists are thus required to seek restitution from historically documented participants, regardless of where this legal journey may lead. African nations are not exempt from the liability for the suffering, loss of culture, wages, indignities and human rights borne by Blacks of the Diaspora. Although Europeans were the direct inflictors of such pain, degradation, sorrow, and disenfranchisement on the shores of the West, African nations were the conspirators, accomplices that aided European slavers, merchants, corporations and monarchs, and provided a consistent framework for such atrocities to occur traversing time, culture and geography. This article concludes that African nations are therefore similarly accountable for the slave trade's crimes against humanity and its legacy as their European compliments, and thus they owe the debt of restitution to descendant Blacks dispersed throughout the Western world.

[. . .]

Contrary to sentimentalized iterations of African participation in the Trans-Atlantic Slave trade, Africans were not deceived into bartering and conveying other Africans as slaves to European merchants and slavers. Neither were the majority of slave-trading African monarchs and raiders adherents to the religion of Islam in the development of this international commerce. It was not until certain African rulers converted to Roman Catholicism and sought to appease their European partners in African slave trading that Africans of the interior became subject to chattel slavery en masse. In addition, Europeans did not have a well-placed economic advantage to subdue African rulers to provide African slaves for the international chattel market due to maritime superiority which also indicates African elite willingness to engage in the barter of other Africans. Although this may have played a role in the inception of diplomatic relations, African rulers generally entered into informal international relations with the Portuguese, as well as other European nations, to provide slaves as goods as well as manufactured, cultivated, or produced chattel for overseas consumption without undue duress from their overseas trading partners.

African rulers, merchants, and laymen, similar to their European counterparts, voluntarily engaged in the Trans-Atlantic Salve trade. Whether to ingratiate themselves with European monarchs and ecclesiastical efficacies which were intertwined with economic profits, Africans engaged in a pivotal role in facilitating the international trade to ensure their own financial gain to the detriment of Africans and Black Natives of the Diaspora who suffered humiliation, degradation, and what would become considered one of the most heinous crimes against humanity in modern history.

African tribal leaders, slavers, and others in positions of cultural authority, adopted Portuguese ordinances and voluntarily entered into bilateral agreements with the Portuguese Crown. As a result, Central and West African nations have availed themselves of the standards of international custom, including those pertaining to compensation and accountability for human rights atrocities in which they had participated, controlled, and facilitated upon their shores as accessories.

As legal scholars and historians focus on the European complicity in the Trans-Atlantic Slave trade and their financial benefits, scholars and grassroots advocates have yet to provide adequate discourse on the legal aspects of African involvement within the historical, international market. The primary purpose of restitution is for reconciliation and, of course, for the alleviation of economic disenfranchisement that resulted from the legal systems and international institutions that gained financially at the expense of Africans and Black progeny's lives, dignity, and humanity.

There is a special psychological void for Blacks of the Diaspora to be characterized in the same racial and cultural class as their African contemporaries. This is especially true as they do not share the same language, general culture, and are from many different bloodlines, which for separates them into distinct identities. Yet, many West Africans who have migrated to the United States have accepted the advantages of affirmative action and laws stemming from the Civil Rights movement, while looking with disdain upon the very same American Blacks who fought to create the foundation for these opportunities.

Restitution will never be sufficient to compensate for the role African rulers as well as Europeans had in facilitating the horrors and demise of Blacks of the Diaspora. Yet, for reparations to initiate the reconciliatory process, the entire history must be set forth to the extent as historical records may enlighten.

In recent years, representatives of some African governments have issued apologies for their institutional participation in the Trans-Atlantic Slave trade. Although apologies are necessary components of reconciliation, the reality is that monetary compensation is also of vital importance to Blacks of the African Diaspora. African nations which participated in the Trans-Atlantic Slave trade have similar legal obligations as European nation states to provide reparations. Failure to do so is to neglect the validity of the international slave trade and to ignore a more accurate, expanded narrative of such a pivotal point in human rights and modern world history.

Patricia M. Muhammad, University of Baltimore School of Law, B.S., Morgan State University.

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