A Deal with the Devil: French Extortion and Haitian Debt Recovery in International Law.

• Author: Jiha, Christine

TABLE OF CONTENTS I. INTRODUCTION 906 II. HAITIAN-FRENCH RELATIONS 908 A. Slave Trade and Colonization 908 B. Haitian Revolution and Its Aftermath 909 III. ARGUMENT ONE: LEGAL RESTORATION 913 A. Void Ab Initio Contract 913 1. Duress 913 2. French Loans and the Adhesion Contract Doctrine 914 B. Violation of International Charters 915 IV. ARGUMENT TWO: LEGAL REPARATION 916 A. Reparations as Legal Recourse 916 B. Case Studies: Country--Country Reparation Agreements 919 1. Wartime Case Studies 919 2. Colonial Case Studies 927 C. Case Study Analysis 936 1. Wartime Cases 936 2. Colonial Cases 938 D. Viable Legal Reparations Claim 939 1. Internationally Wrongful Act 940 2. Injury 942 3. Redress 943 4. Analysis 944 V. TWO-PRONG SOLUTION: PUBLIC AND PRIVATE INTERNATIONAL LEGAL ARENAS 945 A. Public International Law: Solicitation of an ICJ Advisory Opinion 946 B. Private International Law: Arbitration Services 947 VI. CONCLUSION 949 I. INTRODUCTION

If you Google Image search "Haiti," the results do not show-images of crystal clear, blue Caribbean waters along white sand beaches, smiling schoolgirls walking home together, or vibrant scenes from Carnival. Instead, the search produces photographs of collapsed, unrecognizable buildings, civilians rioting in the streets against the government, families living in makeshift tents, and hundreds of people storming aid convoys to get anything they can. (1) A longstanding political joke in Haiti for the past decade is that there are so many nongovernmental organizations in the county, each citizen could have their own. Haiti has more nongovernmental organizations present per capita than any other country in the world. (2) This is the new Haiti--a country that notoriously cannot catch a break.

Still, Haiti did not become the poorest country in the Western hemisphere accidentally. (3) Haiti, a small Caribbean island nation, holds the title for the first successful slave-led rebellion in history--a rebellion that inspired slaves across the Americas--yet has been paying for it ever since. After the recent assassination of Haitian President Jovenel Moise, the international community sat in awe, wondering how circumstances had gotten this bad. (4) How is it possible, many ask, that Haiti shares an island with the Dominican Republic, with its booming tourist economy, healthcare system, and infrastructure? (5) "Corruption" is usually the first word that comes to mind, and not without reason--Haiti has a long history of corrupt government officials that have ransacked the country for their personal gain. (6) Even so, "another story is rarely taught or acknowledged: the first Black colony to free themselves from slavery were forced to pay for their freedom yet again--this time in cash." (7)

This Note seeks to explain Haiti's current economic and social crises through the lens of this "independence debt" (8) imposed by the French, and to propose a system in which the state can seek redress to ameliorate Haiti's desperate economic circumstances. Part II of this Note will establish a contextual foundation by delving into Haitian history, encompassing the Atlantic slave trade, French colonization, and the Haitian Revolution, as well as exploring the immediate and long-term effects of independence. Part III presents the restorative legal argument that the original repayment contract was not only void ab initio, but the continued payment was contrary to international law principles well into the twentieth century after the adoption of the Covenant of the League of Nations and the UN Charter. Part IV explores the reparative legal argument that France dealt with Haiti in such a way in which Haiti has and continues to suffer and must be repaired for the wrong that was done. It also explores other similar country--country reparation agreements (Israel-Germany, Iraq-Kuwait, Great Britain-Kenya, and Germany-Namibia) and analyzes why each agreement is incompatible within the Haitian--French historical context. Lastly, it details current proposed solutions by the Haitian government, as well as hurdles that Haiti must overcome in order to achieve success in its quest for redress. Finally, Part V of this Note proposes a novel solution: the solicitation of an International Court of Justice (ICJ) advisory opinion and the utilization of private arbitration mechanisms, which gives Haiti two avenues, private and public, to raise its claims. Additionally, it will explain why this is a superior way to assess and redress the colonial-era travesty that occurred in Haiti and identify how this solution is better-suited than the case-study solutions.

2. HAITIAN-FRENCH RELATIONS

   1. Slave Trade and Colonization

      Christopher Columbus once wrote about Quisqueya to the Spanish crown, "I swear to your Majesties that there is not in the world a better land or a better people." (9) Columbus first discovered Quisqueya (renamed Hispaniola by the Spanish) modern-day Haiti and the Dominican Republic, in 1492, which became one of the first Spanish colonies in the New World. (10) To build their own Little Spain, Spanish conquerors annihilated native people and destroyed a way of life nearly 7,500 years old. (11) According to one estimate, of the one million natives that Columbus discovered in 1492, fewer than sixty thousand were left after fifteen years. (12) To maintain a steady supply of labor, the Spanish moved natives from surrounding islands onto Hispaniola and started purchasing African slaves from the Portuguese in 1502. (13) This was the first introduction of the Black race in the Americas. (14) This influx of slaves was necessary in order to cultivate the Spanish-brought sugarcane crops. (15) After successfully establishing the first Catholic cathedral and the first European university, the Spaniards decided to spread their empire elsewhere and moved onto Cuba and mainland Latin America, namely Mexico. (16)

      French occupation of the western portion of the island came about in an unexpected way. Beginning around 1530, the island of Tortuga, on the northern coast of Haiti, became a frequent rest point for Caribbean pirates from France, who slowly pushed themselves onto the island of Hispaniola, established a settlement, and imported thousands of African slaves. (17) Back in Europe, in 1697, the Nine Years' War between France and other European nations, including Spain, concluded, resulting in a peace treaty, the Peace of Ryswick. (18) In this treaty, Spain officially recognized French control of Tortuga and the western third of Hispaniola, which would become Saint-Domingue (modern-day Haiti). (19) Saint-Domingue's slave-based sugar and coffee industries grew rapidly, and by the 1760s it was the most profitable colony in the Americas. (20)

   2. Haitian Revolution and Its Aftermath

      The impending slave rebellion in Haiti drew upon the rights-based discourses of the Enlightenment and the Age of Revolutions. As the United States fought for its independence in the American Revolutionary War, American diplomats signed the Treaty of Alliance with France in 1778, creating a military alliance between the United States and France against Great Britain. (21) Under this treaty, the French Antillean colonies, including Saint-Domingue, sent volunteers to help the Americans fight for independence. (22) Soon after, the French Revolution of 1789 inspired other revolutions around the world that were rooted in the idea of liberty to fight against aristocratic and colonial rule. (23) These infectious ideals even inspired Saint-Domingue to lend Simon Bolivar material aid while he fought for the independence of Venezuela and Colombia. (24)

      As news of these revolutions and rebellions reached Saint-Domingue, "the whole colony was speedily thrown into excitement, turmoil, and finally anarchy" starting in 1791. (25) A slave rebellion arose and was led by the future heads of state, Toussaint L'Ouverture, Jean-Jacques Dessalines, Alexandre Petion, and Henri Christophe. (26) Fear of slave revolts spread throughout the Americas; even then-President Thomas Jefferson cut off aid that his anti-slavery predecessor, President John Adams, sent to Saint-Domingue and switched to a policy of isolation. (27) In 1794, the French acquiesced and proclaimed emancipation for all slaves in its colonies; although the slaves were "legally free," the island economy rested on plantation profits which kept the Black workers in a subservient position. (28) In 1802, Napoleon Bonaparte rescinded this proclamation and sent over twenty thousand troops to reestablish slavery in Saint-Domingue. (29)

      Although the French had an established, cohesive military armed with advanced weaponry, their arsenal was no match for the small yet fiercely determined slave combatants. The rebels stopped at nothing to prevent the reestablishment of slavery, including concealing weapons and ammunition from colonial authorities, fleeing to the mountains, killing French soldiers and plantation owners, and setting fire to the plantations themselves. (30) These tactics, in combination with tropical diseases, led to the plight of the French in the colony. (31) In the paramount Battle of Vertieres (November 1803), Dessalines and his army defeated some of the last French fighters on the island. (32) On the following day, the terms of the French surrender were settled. Two months later, on January 1, 1804, Dessalines promulgated the Declaration of Haitian Independence, making Haiti the first Black-led republic in the world. (33)

      Unfortunately, this newfound freedom came at a steep cost. As the only independent, Black-led nation in the world, Haiti was viewed as a pariah state by world powers that no one wanted to touch. (34) Not even its former ally, the United States, wanted to associate itself with a nation run by freed former slaves, (35) since slave-driven cotton production was becoming more lucrative. (36) Even in 1815, at the Vienna Congress, France still maintained that Saint-Domingue was in...