Recouping the Price of Independence - Evaluating a Haitian Claim of Reparations From France
In 1804, Haiti became the first state where enslaved people successfully revolted and liberated themselves.[1] However, Haitian independence came at a steep price. Fearing the spread of slavery, the international community refused to recognize or trade with the new Haitian state.[2] In 1825, the French government sent a battalion of warships to Haiti’s shore to recoup all that France had lost during the slave revolt.[3] Under threat of imminent invasion,[4] Haitian leaders signed an ordinance (the “Ordinance”)[5] which set the price of independence at 150 million francs.[6]
I argue that the Independence Debt was void ab initio, or from the beginning. This paper will evaluate how the Haitian government could recover reparations through a claim of unjust enrichment in the International Court of Justice (“ICJ”).[7] Unjust enrichment is a well-established principle of international law, and is codified in the Statute of the ICJ, Article 38.[8] A claim of unjust enrichment “gives one party a right of restitution of anything of value that has been taken or received by the other party without a legal justification.”[9]
To prevail under a claim of unjust enrichment, a plaintiff must prove three elements: (1) the defendant gained some benefit, (2) the benefit occurred at the plaintiff’s expense, and (3) there is no justification for the enrichment—the enrichment was wrongful.[10] The Haitian government could likely satisfy the first and second elements. Courts broadly define a “benefit” as “something positive” — most commonly the transfer of capital, credit, or labor.[11] There is no doubt that the Independence Debt benefited France’s economy at the expense of Haiti’s.[12] By the end of the 19th century, 80 percent of Haiti’s national expenditures went to financing debts, while the remaining 20 percent supported Haiti’s internal education, healthcare system, and public infrastructure.[13]
Therefore, whether the Haitian government prevails in proving unjust enrichment would likely hinge on whether they could satisfy the third element: that the benefit was obtained through wrongful conduct. International Courts define unjustness broadly—as conduct that is inconsonant with a community’s conception of fairness.[14] To satisfy the unjustness prong, a plaintiff must show that wrongdoing violated notions of fairness when it occurred—a plaintiff may not graft contemporary norms onto past action.[15] The Haitian government has two primary arguments for unjustness. First, Haiti may argue that the Independence Debt was unjust because it lacked consideration. Under international law, a contract is void if one party fails to provide the other with real consideration.[16] There is no consideration where the benefit induced is illegal or violates public policy.[17] In agreeing to recognize Haitian independence, the only “consideration” that France provided Haiti was its freedom—including the liberation of formerly enslaved people. However, by 1825, the international slave trade violated French and Haitian law,[18] as well as international norms.[19] Thus, the “consideration” that France paid Haiti was, in part, the value of their bodies, violating then-contemporary international law.
A Haitian plaintiff could also argue that the contract was void because the Haitian government signed the Ordinance under duress. In both France and Haiti, a contract was unenforceable where one party forced the other to consent through violence.[20] Haitian leaders signed the Ordinance in fear of their safety and livelihoods, and thus could not have properly assented to its terms.[21] Because France and Haiti’s then-contemporary domestic law held that lack of assent nullified a contract, the Ordinance was invalid ab initio.
In conclusion, the Haitian government may bring a successful claim of unjust enrichment against the French government because the 1825 Ordinance between the two countries unjustly deprived the Haitian government of crucial resources. Because of this drain on government resources—paired with political instability, bloody foreign interventions, and devastating natural disasters—Haiti remains the poorest country in the Western Hemisphere.[22] The French government should return what is owed to Haiti so it can begin rebuilding.
Nell Fitzgerald is a staff member of Fordham International Law Journal Volume XLVII.
[1] See Westenly Alcenat, The Case for Haiti Reparations, Jacobin (Jan. 2017) https://jacobin.com/2017/01/haiti-reparations-france-slavery-colonialism-debt/.
[2] See Catherine Porter et al., The Root of Haiti’s Misery: Reparations to Enslavers, N.Y. Times (May 20, 2022), https://www.nytimes.com/2022/05/20/world/americas/haiti-history-colonized-france.html.
[3] Id.
[4] The fleet was armed with cannons and was given an express instruction to obtain Haitian assent through “whatever means possible, including that of arms.” See Alcenat, supra note 1.
[5] See Porter et al., supra note 2.
[6] See id. The 1825 indemnification, or “Independence Debt,” began a cycle of foreign borrowing that impoverished the young nation—Haiti became “the prey of modern finance.” To pay off the debt, Haiti borrowed from foreign lenders who charged high interest rates and administrative fees. The “double-debt” impoverished the young nation’s economy. See Porter, supra note 2, at 196.
[7] The ICJ is the proper forum for the dispute because both Haiti and France are UN members, and all Members of the United Nations are ipso facto entitled to appear before the Court. See States Entitled, International Court of Justice, https://www.icj-cij.org/states-entitled-to-appear.
[8] See Saluka Investments BV, ¶ 449 (Perm. Ct. Arb. 2006) (“[T]he concept of unjust enrichment is recognized as a general principle of international law”); Michalopoulos Stavros, Enrichment Without Cause, Jusmundi (May 31, 2023) https://jusmundi.com/en/document/publication/en-enrichment-without-cause. For a history of unjust enrichment extending back to the Roman civil law system, see The Intellectual History of Unjust Enrichment, 133 Harvard L. Rev. 2077 (Apr. 2020).
[9] See Saluka Investments BV, ¶ 449 (Perm. Ct. Arb. 2006).
[10] See Michalopoulos Stavros, Enrichment Without Cause, Jusmundi (May 31, 2023). https://jusmundi.com/en/document/publication/en-enrichment-without-cause
[11] See David N. Fagan, Achieving Restitution: The Potential Unjust Enrichment Claims of Indigenous Peoples against Multinational Corporations, 76 N.Y.U. L. REV. 626, 642–57 (2001).
[12] See Simon Henochsberg, Public Debt and Slavery: the case of Haiti (1760 – 1915) Paris School of Econ., 26 (Dec. 2016), http://piketty.pse.ens.fr/files/Henochsberg2016.pdf.
[13] See Alcenat, supra note 1.
[14] See id.
[15] See id.
[16] Christina Binder & Christoph Schreuer, Unjust enrichment, Oxford Public International Law (Oct. 2017), https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1002.
[17] Illegal Consideration, Black’s Law Dictionary, https://thelawdictionary.org/illegal-consideration/ (last visited Dec. 6, 2023).
[18] The Haitian government outlawed slavery when it gained its independence in 1805. The French government banned the slave trade in 1818 (although it did not fully abolish the practice of slavery until 1848). See Kelly Buchanan, Slavery in the French Colonies: Le Code Noir (the Black Code) of 1685, Library of Congress Blogs (Jan. 13, 2011), https://blogs.loc.gov/law/2011/01/slavery-in-the-french-colonies/.
[19] In 1815, France signed the Treaties of Vienna and Paris, documents that condemned the slave trade as barbaric. See Kristen Casey et al., France’s Overdue Debt to Haiti, 54 NYU J. of Int’l L. and Politics 34, 35 (Jan. 2022) https://www.nyujilp.org/frances-overdue-debt-to-haiti.
[20] See Jiha, supra note 12, at 913–14.
[21] See Porter et al., supra note 2.
[22] See Diana Roy and Rocio Cara Labrador, Haiti’s Troubled Path to Development, Council on Foreign Relations (Oct. 3, 2023) https://www.cfr.org/backgrounder/haitis-troubled-path-development.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.