Reparations for Slavery and Post-Slavery Racial Discrimination in the United States: Incorporating international human rights standards into domestic law

Abstract

The pursuit of reparations for slavery and post-slavery racial discrimination in the United States is associated with a range of grassroots, civil, and political initiatives. Some are anchored in Civil Rights activism and domestic law, others in the Black nationalist tradition, which has consistently drawn on the language of universal human rights and international law of repair. This paper discusses the incorporation of international human rights standards into three interconnected realms of politics: reparations for slavery litigation, Black nationalist reparations discourse and activism, and reparations legislation. These efforts reveal an awareness of reparations precedents in the post-World War II period, at home and abroad, as well as a determination to frame historical grievances and reparative justice demands in terms of evolving human rights standards, particularly with respect to the crime of genocide, crimes against humanity, and the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law (2005). My analysis of H.R. 40, the historic federal reparations study bill (1989–today), and the California Assembly Bill 3121, which passed into law in 2020, shows that both pieces of legislation exemplify what Harold Hongju Koh calls the transnational legal process—a process that results in the internalization of human rights standards into domestic law (Koh 2005: 131) —marking a shift away from America’s long tradition of legal exceptionalism and exemptionalism.