THE PREVAILING SCHOLARLY LEGAL OPINION categorically shuts the door on claims for justice and slavery reparations by referring to the principle of non-retroactivity and to the allegation, presented as if it were a fact, that transatlantic slavery would have been "legal" at the time.
This is indeed the basic argument that European and US ex-enslaver states always come up with first. In fact, this is really the principal argument that they persistently repeat each time they are confronted with the topic, indicating that this is where the crux of the legal matter lies.
This principle of non-retroactivity, a tenet of international law, has the effect that a state can only be found legally responsible if that state committed an act that was "internationally wrongful" at the time it occurred.
It is the combination of the allegation of international "legality" of slavery at that time with this principle of non-retroactivity that is invoked to categorically block transatlantic slavery reparation claims.
This is not a scientifically pertinent and tenable position, however. When one contends that "slavery" was "legal", it needs to be asked by whose standards it is supposed to have been legal. The allegation of legality is based solely on the colonial laws that European enslaver states passed after they had been the driving force in transatlantic slavery for more than a century already. However, transatlantic slavery was not legal by the laws of affected Africans, nor was it compliant with international law standards of the time. It was not even "legal" by the laws of European enslaver states, most of which had come to pass, in developments up to the 16th century, legislation abolishing, or at least severely restricting, slavery and outlawing chattel slavery. In their majority, these laws were never abrogated and thus continued to be in force throughout the transatlantic slavery period.
Before the time of transatlantic slavery, many regions of Africa were active participators in international relations, and many African societies had highly developed political and social institutions. Contrary to what we are often made to believe, African political entities of that time were as much the creators, actors and subjects of international law as their European counterparts.
The available historical evidence shows that these rules of international relations were known and respected by African states in their encounters with European officials and traders before and at the beginning of transatlantic slavery.
Tragically, this conformity with international law was not reciprocated by their European counterparts who disrespected agreements, ignored the sovereignty of African states and violently deposed rulers who were unwilling to collaborate with them in enslavement.
In the 17th and 18th centuries, when European nations started to legislate on transatlantic slavery, international law was no tabula rasa [blank slate]. And Europeans, having always been only a global minority (and before transatlantic slavery not a particularly powerful one), could neither unilaterally impose what international law was, nor change it.
And contrary to hegemonic opinion, historical sources referring to African, European and international law show that transatlantic slavery was indeed illegal at its time. Now, the concept of legal responsibility and its ensuing obligation to make reparations for wrongful conduct too was, in one form or another, historically present in all legal systems concerned--African, European and international. Once the illegality of transatlantic slavery can be established and responsibility legally attributed, in appliance of the law of the time and looking at the facts, reparation is due for this most massive crime.
Quite obviously, the assessment on its own that African states were subjects of international law does not yet tell us anything about the legal status of transatlantic slavery at that time. …