Private Law Theory

ABSTRACT
Over the past ten years, states in the Caribbean Community and Common Market (CARICOM) have called on European States to make reparations for transatlantic chattel slavery (TCS). CARICOM states have suggested that if former colonial powers were unwilling to adequately respond to their demands for reparations, they would seek them through judicial means before international tribunals, such as the International Court of Justice (ICJ). If brought, these claims would face major challenges that are likely to result in the ICJ finding that it lacks jurisdiction to hear them. This Article proposes a novel approach to reparations claims that can be made by CARICOM States under private law against individuals and institutions that have been unjustly enriched by slavery. Undertaking a detailed analysis of existing domestic efforts at reparations litigation, this Article argues that reframing reparations claims through the lens of unjust enrichment can provide avenues that are especially ripe to State claimants. It offers a comprehensive analysis of the value of unjust enrichment claims in historical justice cases, examining the benefits of such claims through the lens of the failures of existing reparations litigation. It also explains how unjust enrichment claims brought by States may avoid standing issues that have impeded individual reparations plaintiffs. Finally, it elaborates on how emerging archival research may expand opportunities to bring such cases.

Redwood, Britta, Reframing Reparations: Sovereign Unjust Enrichment Claims as a Private Law Model for Reparatory Justice (February 15, 2024).