Reconceiving reparatory justice: transatlantic enslavement, the maangamizi, and the making of international law

In recent decades, a groundswell of public and political attention has turned towards the injustices of the past, and the legacies of antecedent atrocities that resonate in the present. Gradually, presumptions of a linear historical progression (and thus an automatic process of ‘moving on’) are being displaced in favour of recognition of the potential for transgenerational transmission of wrongs. On this account, simply looking forward is insufficient. The past must be acknowledged and accounted for. In the history of international law, this necessarily involves engagement with European expansion into the ‘New World’, and the forced migration and enslavement of over twelve million Africans. Thus, centuries of advocacy and activism coalesce in the contemporary movement for reparatory justice for the system of transatlantic chattel enslavement. While social, political, and philosophical discourse has evolved to engage with the increasing impetus for historical justice, international legal argumentation has evidenced little development, and the orthodox position has held steady. The system of transatlantic enslavement represents a feature of the morality and legality of the times, albeit a regrettable one, and thus is not amenable to judicial reparatory processes. Not only does this narrative preclude the operation of judicial mechanisms in response to the reparations case, but the maangmamizi – the African holocaust of chattel, colonial, and neo-colonial enslavement – is legitimised through its purported legality. A permissive rule of international law enabling enslavement is employed in denying the moral and political calls for redress, as well as the legal case. Yet, simultaneously, reparations activists and scholars rely on contrary assertions of international prohibition to cement their calls for justice within the judicial frame. This thesis explores the limits of the international legal system, and the place of enslavement within it, reconsidering the development of modern international law to account for subaltern perspectives. The history of prohibition is resituated within the context of the marginalisation of African peoples in the birth of the nation State, the construction of civilisation, colonial encounters, and the longer history of enslavement’s regulation in international law. Thus, the persistent assertion of uncontroversial legality is destabilised, providing an entry point for the reassessment of additional legal barriers to recovery in the face of widespread historical injustice, and for a broader understanding of reparatory justice premised on the international legal frameworks, but also transcending them