Analysing Objections to the UN Declaration on the Trafficking of Enslaved Africans

On 25 March 2026, the UN General Assembly (UNGA) adopted Resolution A/80/L.48 titled “Declaration on the Trafficking of Enslaved Africans and Racialised Chattel Enslavement of Africans as the Gravest Crime Against Humanity”. 123 UN member states voted in favour, 3 (the United States, Israel, and Argentina) voted against, and 52 abstained. The abstaining states included all 27 EU member states, the United Kingdom, Canada, Australia, and Japan. The resolution was led by Ghana on behalf of the African Union and co-sponsored by all 54 AU member states.

The Declaration is among the most consequential normative statements on slavery and reparatory justice adopted by the UNGA since the 2001 Durban Declaration. And it is a decisive shift from Durban’s carefully crafted subjunctive that acknowledged that the slave trade “should always have been” a crime against humanity (emphasis added), to a declarative assertion that it “is” the gravest crime against humanity. It invokes jus cogens, obligations erga omnes, and the forms of reparation from the ILC Articles on State Responsibility: apology, restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

The three negative votes and 52 abstentions were accompanied by detailed explanations of position from the United States, the European Union, and the United Kingdom. These explanations raise distinct but overlapping legal objections. They deserve serious analytical engagement, not only because the objecting states include several of the historical participants in the transatlantic slave trade, but because the quality of the legal arguments varies considerably.

The analytical fulcrum: what kind of non-bindingness?

It is well-known that the UNGA resolutions are recommendatory under Articles 10-14 of the Charter. This is a structural constant. The ICJ, however, has long recognised that formal non-bindingness does not exhaust the question of their legal significance. In its Nuclear Weapons Advisory Opinion (1996, para. 70), the Court acknowledged that UNGA resolutions “may sometimes have normative value” and can be evidence of “the emergence of an opinio juris”. In Nicaragua v. United States (1986), the Court treated Resolution 2625 as an authoritative statement of customary international law. In Western Sahara (1975), Resolution 1514 received similar treatment.

The question raised by A/80/L.48 is not whether an UNGA declaration can bind states. It plainly cannot. The question is whether a declaration whose sponsors have affirmatively disclaimed its normative character can nonetheless contribute to the formation of customary international law on the specific legal claims it seeks to advance.

This distinction is important. The UK’s explanation of vote records that Ghana, on behalf of the African Union, “consistently stressed during negotiations that this resolution was not to be read as a legal document”. The UK expressed regret at “the failure to accept language that would have put the matter beyond doubt”. The sponsors of Resolution 2625, by contrast, did not disclaim normative intent. They understood themselves to be articulating legal norms as they existed in customary international law. This is precisely why the ICJ could treat Resolution 2625 as evidence of opinio juris in Nicaragua.

A/80/L.48 presents the inverse situation. Its text invokes peremptory norms. Then it calls for forms of reparation corresponding precisely to Articles 35-37 of the ILC Articles on State Responsibility. But the sponsors told other states that the resolution should not be read as a legal document. Certainly, when one tells states that “this is not a legal document” to secure their votes, it becomes harder to argue before the ICJ that those same votes constitute evidence of a legal conviction. The Declaration’s contribution to the development of customary international law will depend almost entirely on what states do after the vote, not on the vote itself.

The United States objection

The US argued that characterising the transatlantic slave trade as a violation of jus cogens is anachronistic. They invoked the intertemporality doctrine (Island of Palmas, 1928) and Article 13 of the ILC Articles on State Responsibility. When applied mechanically, this would mean that conduct preceding the VCLT’s articulation of peremptory norms in 1969 cannot be characterised as a jus cogens violation. But the argument conflates two distinct questions: (1) whether jus cogens as a doctrinal category existed during the slave trade, and (2) whether the substantive prohibition of slavery was part of international law during the relevant period. The 1815 Congress of Vienna Declaration and the 1890 Brussels Conference Act are good evidence of an emerging customary prohibition well before the formal concept of jus cogens crystallised. Former ICJ judge Patrick Robinson argued in the ASIL symposia on reparations (2021) that the substance of the prohibition has preceded the doctrinal label. The US objection is doctrinally tidy but historically incomplete. It is strongest as applied to the fifteenth and sixteenth centuries and least convincing as applied to the nineteenth, when the slave trade was the subject of bilateral and multilateral treaty prohibitions.

The European Union objection

The EU raised three objections that are more precisely articulated than the US position. Firstly, the “gravest” formulation gives an impression that there is a hierarchy among atrocity crimes. This has merit when viewed strictly through the doctrinal lens of modern international law. Article 7 of the Rome Statute lists crimes against humanity without ranking them. The African Group responded that the characterisation follows a factual assessment of singular scale and duration, not a formal hierarchy. But it is equally true that the Declaration’s categorical language does not draw this distinction; and if the “gravest” characterisation gains normative traction, it has the potential to affect prosecutorial priorities in ways that disadvantage the recognition of other crimes against humanity.

Secondly, the EU objected to the inclusion of regional jurisprudence (the African principle that “a crime does not rot”) as “at odds with accepted UN practice”. This objection is procedurally grounded but substantively weak. The principle that grave crimes are not subject to temporal limitations has independent existence in international criminal law, in Article 29 of the Rome Statute. Third, the EU’s retroactivity objection engages the same intertemporality argument as the US position. But it is done with greater restraint and a pointed reservation of its “full position … in all current and future relevant processes”.

The United Kingdom objection

The UK’s explanation of vote is the most legally detailed and merits the closest analysis. It acknowledged “with deep regret” that the prohibitions on slavery “had not yet been established in international law at the time of the transatlantic slave trade,” citing Article 38 of the ICJ Statute. This claim is historically contestable. The UK was itself a party to the 1815 Congress of Vienna Declaration and the leading architect of nineteenth-century anti-slave-trade enforcement, including the Royal Navy’s West Africa Squadron. For the UK to argue that the prohibition of slavery had not yet been established, it must mean either that nineteenth-century treaty commitments did not amount to a customary prohibition, or that the claim applies only to the pre-nineteenth-century period. The explanation of vote does not specify which reading is intended.

The UK’s most significant legal claim is that intertemporality and non-retroactivity “cannot be circumvented by recourse to the concept of continuing harms”. This directly targets the core legal strategy of the reparations movement. It is true that the ILC Articles on State Responsibility distinguish between a completed act (Article 14(1)) and a continuing wrongful act (Article 14(2)). They, however, do not address the situation where a historical act, itself potentially lawful at the time, produces effects alleged to constitute ongoing wrongs. Neither the UK’s position nor the sponsors’ position is supported by an authoritative judicial determination in this regard. The ICJ has not ruled on whether the structural after-effects of slavery constitute a continuing violation within the meaning of state responsibility law.

The UK’s final contribution, that the sponsors cannot have it both ways, is the strongest of all the objections advanced by the abstaining states. If the Declaration is not a legal document, it cannot generate legal obligations or establish that the slave trade violated jus cogens. If it is a legal document, it should say so.

Concluding thoughts

For states in the Caribbean and the broader Global South, the moot question is not whether A/80/L.48 has settled the law. It has not. The question is whether it satisfactorily carries forward the state-led movement that started with the Durban Declaration. One should note that the CARICOM Reparations Commission’s Ten-Point Plan, the AU’s Decade of Reparations, and later, the October 2024 Commonwealth Summit communiqué acknowledging that “the time has come for a meaningful, truthful and respectful conversation” on reparatory justice, have progressively advanced the normative strength of this project.

On this measure, A/80/L.48 shifts the declarative baseline. Where Durban used the subjunctive, the 2026 Declaration uses the indicative. 123 states voted to characterise the transatlantic slave trade as the gravest crime against humanity. This does not create binding obligations. But it redefines the terms on which subsequent negotiations and judicial proceedings will be conducted. Before A/80/L.48, the question was whether the slave trade should be recognised as a crime against humanity. After it, the question is whether the legal consequences that normally follow from such recognition can be resisted by the doctrine of intertemporality. That is a different, and more difficult, argument for the abstaining states to sustain indefinitely.

The legal objections of the UK, the EU, and the US are, for now, doctrinally available. Their life in international law, however, will depend on subsequent state practice, on the trajectory of the Crimes Against Humanity treaty negotiations and on whether the ICJ or other tribunals are asked to address the continuing effects of slavery. A/80/L.48 certainly does not resolve these questions. But it ensures that they can no longer be deferred.

The views expressed in this article are personal to the authors and do not necessarily reflect the official policy or position of the Ministry of Foreign Affairs of The Bahamas.