Michelle E. Lyons

excerpted Wrom: TZRCLBDXRQBGJSNBOHMKHJYFMYXOEAIJJPH Against Racism: New Avenues for Slavery Reparations?, 35 Vanderbilt Journal of Transnational Law 1235-1268 (October, 2002) (272 Footnotes)

The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR or Conference) took place in Durban, South Africa from August 30, 2001 to September 7, 2001 pursuant to U.N. General Assembly resolution 52/111. Prior to the actual discussion, the WCAR boasted five "themes," or issues, to serve as the basis for the Conference. First, the WCAR wished to address the sources, causes, forms, and contemporary manifestations of racism, racial discrimination, and related intolerance. Second, the WCAR aimed to discuss the treatment of victims of racism, racial discrimination, and related intolerance. Third, the Conference wished to consider and implement measures of prevention, education, and protection, thereby eradicating racism, racial discrimination, and related intolerance at the national, regional, and international levels. Fourth, in response to the discussion and acknowledgment of the sources, victims, and prevention of racial discrimination, the Conference aimed to create a provision for effective remedies, recourses, redress, and other measures at the national, regional, and international levels. Finally, the WCAR wished to explore strategies to achieve full and effective equality, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, and xenophobia.

The WCAR, which included representatives from 166 nations, adopted a non-binding "Declaration and Programme of Action that commits Member States to undertake a wide range of measures to combat racism and discrimination at the international, regional and national levels." Slavery was one of the key issues addressed through the Conference. The WCAR acknowledged that slavery and the slave trade constituted a crime against humanity, and urged "concerned States" to participate in compensation for its victims. Of the 166 nations in attendance, only 163 adopted the Declaration. The United States and Israel were among the dissenting nations.

The debate regarding reparations for slavery started, however, long before the opening of the Conference in Durban. Prior to the WCAR, U.S. Secretary of State Colin Powell intended to represent the United States at the Conference as the first black U.S. Secretary of State. However, two pivotal issues emerged prior to the Conference: a proposal that the United States and other nations that participated in the slave trade pay reparations for slavery, and language singling-out Israel for "practices of racial discrimination against the Palestinians." Before the Conference commenced, the United States sent diplomats to a final preparatory session in Geneva in an effort to eliminate references to demands for reparations and references offensive to Israel. In lieu of an apology for slavery or reparations for the descendants of slaves, the United States proposed an expression of regret combined with a pledge to aid African countries. Furthermore, the U.S. administration announced that unless the agenda was adjusted to its liking by the opening of the conference, the United States would be unable to attend.

By the conclusion of the Geneva session, the United States felt that a compromise had been reached on the issue of slavery reparations, but continued to reject the contentious language regarding Israel. As a result of the brewing controversy, Secretary Powell stayed in Washington and sent a mid- level delegation to the WCAR.

With four days remaining in the Conference, U.S. representatives had not successfully negotiated the removal of "hateful language" regarding Israel contained in a draft document, and Secretary Powell decided to remove the U.S. delegation from the Conference. Israel followed suit, removing its delegation and calling the Durban conference a "farce." Although the United States cited the controversy surrounding the anti-Israel language as its motivating factor for walking out of the Conference, other nations accused the United States of pulling out because of its own refusal to "accept responsibility for slavery and for injustices to Native Americans." Following the walk-out, U.S. National Security Advisor Condoleezza Rice stated that, rather than focus on reparations, other nations in the Conference should "look forward and not point fingers backward." Two days later, the European Union was also close to abandoning the Conference, fearing a decreased possibility of a meaningful outcome, because of its objections to the Arab nations' continued negative focus on Israel. A published quotation from one non-governmental observer stated, "without the EU and the U.S. there won't be any major rich countries left for the rest of the world to shout at."

While the Conference's final Declaration declared slavery a "crime against humanity," conflicting demands existed regarding reparations for the descendants of slaves. Zimbabwe led some African countries and African Americans in asking for an apology, as well as cash compensation to be paid to individuals by the Western countries that practiced the slave trade. South Africa and other African countries, however, supported reparations in the form of development funding from the former slave-trading countries.

After a week of debate the delegates reached a resolution, labeling the slave trade a "crime against humanity," and determining that states that benefited from the slave trade should help rebuild countries "and the diaspora" caused by slavery. However, the WCAR final documents were not released until January 3, 2002 because of the controversy surrounding the African countries' demand that several paragraphs referring to slavery be placed in the main part of the text, as opposed to the declaration. Western countries were fearful that the placement of wording in the text that "slavery and the slave trade are a crime against humanity and should always have been so" would change the context of the document. Ultimately, the final document stopped short of calling for reparations and an explicit apology from nations that benefited from the slave trade and colonialism. Instead, it simply encouraged nations benefiting from the slave trade to provide aid.

This Note discusses the legal implications surrounding the final documents produced at the WCAR, and the possibility of their use as a springboard for jurisdiction in both domestic and international judicial fora. In particular, this Note explores the recent moves toward forming a legally- grounded claim for slavery reparations, as opposed to the recent focus on public policy and moralistic compensation for past injustices.

[a1]. J.D. Candidate 2003, Vanderbilt University. B.S.B.A Marketing 1999, University of Missouri-Columbia. B.J. Advertising 1999, University of Missouri-Columbia. .