Eingang zum Volltext in OPUS
Hinweis zum Urheberrecht
Dissertation zugänglich unter
Slavery and Its Consequence Under International Law
Sklaverei und ihre völkerrechtliche Folge
Dokument 1.pdf (4.476 KB)
Freie Schlagwörter (Deutsch):
Atlantische Sklaverei , Sklaverei und ihre Folge für Afrika , völkerrechtliche Folge der Sklaverei , Dreiecksklaverei in Afrika
Freie Schlagwörter (Englisch):
Slavery , Atlantic Slavery , Slavery and its consequence , The effect of Slavery on Africa , International Law and Slavery
Oeter, Stefan (Prof. Dr. )
Tag der mündlichen Prüfung:
Kurzfassung auf Englisch:
Slavery is a historical antecedent, which affected all continents, sometimes simultaneously, sometimes successively; its genesis is the sum of all that happened during an intermediate period of history. Paradoxically, slavery and slave trade still exist today under various pseudonyms: servants, nannies, prostitutes, indentured servants, extremely low paid workers. The examination here is confined to the Atlantic Slave Trade and its implications to Africa and its people, both in Africa and in Diaspora. Various aspects and instruments of law, particularly, international and inter-temporal law were examined to justify or repudiate the demand for compensation vis-à-vis reparation.
The Atlantic Slavery, which began in the year 1440 was first abolished in 1787 throughout British Empire and in 1833, the British parliament abolished slavery in its colonies. In 1838, the slaves were emancipated and by 1880, slavery had been abolished in southern United States and across the world an estimated figure of over 14 million blacks was forcibly transported to overseas countries. This figure does not include those who died before they arrived to their various destinations.
The thesis that slavery and slave trade contributed to the development of capitalism because slave trade constituted an essential element in the early mercantilist stage of capitalist development and abolition, which was a reflex of the resulting industrialism and its free commercial policies may have adherence here and there. Apparently, the increased demand for slaves not only reallocated resources, but also produced externalities thought to impede long-time development in Africa. These impediments were constraints on the growth of African states, increase in ethnic and socio stratification and sustained a culture of political violence.
The history of West Africa will be used as a model for the economic marginalisation and depopulation of Africa. While most scholars agree that the depopulation of Africa was a consequence of Atlantic Slave Trade and must have reduced the aggregate population between 1700 and 1850, nevertheless it is problematic to assess the causal impact of slave population growth and development.
The regular slave raiding was a constraint to production, social life obscured the ethnic boundaries and the inability to distinguish insider from outsider as the people scattered to escape the risk of being caught. Between the 16th and 19th centuries more than 14 million slaves were produced in Africa and transported to overseas.
Book one Chapter I addresses the term “Slavery” and its concepts in all its ramifications. The instruments of semantics, philology and biology e.t.c. were used to arrive at an acceptable definition of slavery.
Chapter II have as its priority the examination of slavery as an ancient institution of all cultures and the subsequent break of this culture by the Europeans. Enough evidence were advanced to prove that almost every continent and country practiced one form or another of slavery and slave trade, but this seemingly established culture and norm were put to question by the Europeans. The practice of the Atlantic triangular slave trade and the colonial Plantation economy with the attendant exploitation of the slave workers were extensively discussed in this chapter.
Chapter III have as its priority racism, cultural differences, and above all, economics as the motives for Atlantic slave trade vis-à-vis triangular slave trade. The roles and the works of intellectuals, movies, newspapers, and physical contacts with the Africans contributed to slavery and also to the Atlantic slave trade.
Book Two Chapter IV dealt with the examination and analysis of the motives of Atlantic slavery and slave trade using the economic, social and political yardstick as the most compelling factors. Mathematical calculations and economic diagrams were used here to describe the demand and supply of slaves and its effect on African economies.
In Book Two, the implications of Atlantic slave trade to Africa and its people in strictly economic and demographical terms were examined.
Chapter V presented various definitions of natural law and present its prominent progenitors and contributors. The role of natural law in the examination of the atrocities of the Atlantic slave trade cannot be underestimated considering the fact that during this period, international law or positive law as we understand it today, had hardly existed therefore, the only appropriate yardstick open for the examination of the treatment and trade of the Africans appear to be the instrument of natural law vis-à-vis moral law.
Chapter VI examined in detail the merits and demerits of the concept of “Pacta sunt servanda” as applied by the Europeans in trade with his African partners. The unfolding implications that resulted because of the failure of adherence to “Pacta sunt servanda” to the contracting persons, nations, villages also featured here prominently. It is on record that the European expansion over other parts of the world was undertaken by the acts of states and governments and later also private business partners participated in the slave trade. Therefore, the implication of this under international law was evaluated.
Chapter VII combined the extent and influence of the Radbruch’s Formula of Ratio Juris, its logicality and the nature of legal theory and Robert Alexy's conceptual analysis and the theory about the nature of law to determine the degree of morality and justice embodied in the slave laws enacted in the United States during the Atlantic Slave Trade. For example, Radbruch postulated that the objective of legal philosophy is to appraise the law in terms of congruency with its ultimate goal, i.e. to realize the ideas of law.
Chapter VIII highlighted the abolition and emancipation of slavery and emphasized the role of Quakers, Anglicans and most importantly anti-slavery campaigners, like Granville Sharp and Thomas Clarkson. They initiated, campaigned and fought for the abolition and emancipation of African slavery, without which the history of Africa and its people would have being hitherto be rewritten today. Just as the instruments of publications, sermon, pamphlets, treatise, poems, narratives, newspaper articles, reports and petitions were used to promote and aggravate Atlantic slave trade and slavery so also were these instruments used to fight for the emancipation of slavery.
Though the cause of reparation for Africans and Africans in Diaspora cannot be seriously questioned, particularly under natural law and the laws of morality, the conceptual, legal, moral and historical issues were discussed extensively in Chapter IX. The normative arguments for and against reparations and the identity of beneficiaries and those sued for reparations were the object of analysis. Causation and attenuation arguments of reparations, particularly in tort liability, for example, act attenuation, victim attenuation and wrongdoer attenuation will help to determine culpability.
Tort law analogy in slavery reparations and more so lawsuits for Jim Crow, constitutional requirements and unjust enrichment are all indispensable legal instruments to ascertain the merits and demerits of reparations. The concepts of restitution and genealogical determinism are also essential parts of this chapter. And finally, the philosophy of Libertarianism also constituted to the evaluation of the case for reparations.
Reparation has been a common feature or idea in public international law before the emergence of international human rights law. The various international courts have defined the notion of reparation in relation to the notion of international responsibility of the state in
• Art. 31: ILC (s. pages 238, 241)
• Art. 3: ILC
• Art. 13 Universal Declaration of Human Rights (1948)
• Art. 11(2)
• Art. 7(1)
The international law advances that any conduct, which is attributable to the state and which constitutes a breach of an international obligation of the state is an international wrongful act and comes under the state responsibility. The international law that adjudicates on state responsibility stipulates that there must be a link between a past wrong and present claim, consequently any legal claim for reparation at the international level will be confronted with the problem of proving that the present day western countries caused the injury inflicted on slaves. Other bodies of law like restitution, which deals with benefit-based liability or benefit-based recovery, has become an increasingly powerful tool in the case of reparation, particularly for mass wrongs. The merits and demerits were done justice to in this Dissertation.
Natural Law has played an important role in the affairs of men through the ages because it entails basic principles of moral law and legislation and is in some cases objective, accessible to reason and based on human nature. Though, the concept of natural law is controversial, however, the Nuremberg War-Crimes trials after World War II, had no foundation in written laws. The prosecutors and judges justified their sentences on the assumption of natural laws binding all human beings and the present insistence on human rights also implies the affirmation of a kind of natural law. Natural law is therefore, a reflection of morality and consequently, legally valid if they conform to morality. He appraised human rights as surpassing all written laws and advanced that the law of nature should be sufficient to address the issue of restitution. Therefore, the kidnappings, the involuntary enslavement, the killings or murder of protesting or rebellious African slaves were an offence and a crime that needed to be addressed. Africa and the Africans in Diaspora can seek for justice albeit post mortem of the slaves.