Slavery Notes - QUB Undergraduate degree PDF

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Property In Persons Introduction Era of Slavery -

Consideration of when slavery was legal – based on property, the Roman Law of Slavery – dominion over a person, Aristotle;

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The manners in which people were treated as property: bought/sold – transfer; inheritance, used, managed but also manumission and the Code Noir;

Era of Abolition

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Abolition: freedom for people or loss of property (security of holding/expropriation);

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US Civil War – against the South no compensation, slaves as enemy property to be confiscated; North and Western Territories, compensation paid for loss of property;

Neo-Abolitionist Era -

Recognition of slavery in the 21 st Century – a crime in the context where legal ownership is no longer possible;

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1926 definition as seen through a property paradigm – through the lenses of ownership reflects the lived experience of slaves;

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Application of 1926 in Tang, reference to the Bellagio-Harvard Guidelines to unpack what constitutes slavery by reference to the definitional ‘powers attaching to the right of ownership’;

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Like Honoré instances, reference to control as possession allowing for other type of powers to be exercised such as, transfer, manage, profit, dispose of a person;

General Summary Slavery is an ancient social institution worldwide with direct links to ancient Rome, imperial Britain and the Americas. Historically, slaves were a long-term investment as they were bought and sold as personal property and had an economic value to their ‘owner.’ However, as it is legally impossible in all countries to ‘own’ a person, contemporary slaves are disposable and are treated with even less care. Slavery is not as blatant as it once was, nor is it legally acceptable as it was before the 18th century abolitionist movement, but it has always been with us (3 out of every 1000 humans are trafficked today). Is the current legislation sufficient to criminalise the new forms of slavery which have taken over from chattel slavery?

Historical Examples of Slavery 

England played a key role in the lucrative Atlantic slave trade from the 17 th to the 19th century, second only to the Portuguese in volume of slaves shipped. It was acknowledged that humans could be the “subject of property” in the Zong case (also see Somerset v Stewart). However, due to economic changes, religious movements and the work of abolitionists such as William Wilberforce (pioneer of anti-slavery movement) legislation was passed to reflect the changing attitudes on slavery (Slave Trade Act 1802/Slavery Abolition Act 1833). Wilberforce said: “God Almighty has set before me two great objects, the suppression of the Slave Trade and the Reformation of Manners [moral values].” Wilberforce also labelled slavery a “disgrace and dishonor” to Britain.

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Aristotle argued that slavery was part of the natural order of the world: “Some are marked out for subjection, others for rule.” However, he did recognise that the concept may be contrary to nature, and therefore unjust and illegitimate in law. In Roman times slavery was justified by the ius gentium (predecessor of modern international law) and the ius natural (natural law), which allowed foreigners captured in wars to be kept as slaves instead of being killed (‘right to slavery’). Rousseau (18 th century) rejected this ‘right to slavery’ and said it was “illegitimate, absurd and meaningless” as the words slavery and right are contradictory. Montesquieu said it was an unchristian doctrine.

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In France, Louis XIV’s Code Noir (1685) gave ‘owners’ extreme disciplinary powers over slaves who carried weapons, attempted escape or showed general disobedience; ‘owners’ had wide discretion to beat and chain slaves when they believed they “so deserved”, which legitimised the infliction of pain and suffering on slaves in addition to subjecting them to the absolute control of their slaveholders.

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Jenny Martinez describes slavery in the USA as an “ambivalent foe”, as it is in contradiction with the ideals of liberty the nation was founded upon. American links with the African slave trade were lambasted as a violation of human rights by Thomas Jefferson, and they eventually followed Britain’s lead in the abolitionist movement. The oppression of black people in the South of America was a major factor in the outbreak of the American Civil War, during which time black people fled to the North to fight against their southern oppressors, and helped the North achieve victory. It was during this war that the Emancipation Proclamation was enacted (1863) by President Lincoln, freeing 2-3 million slaves in the process. Even with ‘freedom’ however, black people still suffered extreme hardship without a master to protect them and found it hard to get jobs, own property or achieve social equality. Civil rights for black people were not as extensive as those provided to their white counterparts, and this struggle against racist prejudice stemming from the foundations of slavery is arguably still going on today in terms of social equality, despite the work of activists such as Martin Luther King in the 1960’s and the historic inauguration of African American President Barack Obama in 2008.

Contemporary Examples of Slavery

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A recent UN report finds that there are over 20 million slaves worldwide today, falling victim to sexual exploitation (social acceptance and police complicity in ThailandBales says “girls are so cheap that there is little reason to take care of them over the long term”- disposable bodies), forced labour, trafficking, bonded labour (bound by eternal debt in South-East Asia) and forced marriage. Slavery raises $150 billion per year of illegal, invisible profits “behind a wall of coercion, threats and economic exploitation.”

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In Mauritania (the last country to officially outlaw slavery- 1981/2007) the number of slaves is still roughly 20% of the population, the largest proportion in the world. Kevin Bales says that despite the abolition of slavery “for most legal freedom never

translated into actual freedom… slavery survives here in a primitive, tribal form.” Anti-slavery groups are persecuted and government agencies/the judiciary have not helped the cause of slaves, with no jurisdiction provided to legislate against this apparently illegal practice. Slavery is “so deeply ingrained in the minds of both slave and master that little violence is needed to keep it going.” 

Islamic militant extremist group Boko Harem (meaning “Western education is forbidden”) abducted over 200 schoolgirls and said they would treat them as slaves and marry them off (forced marriage) in a response to hatred of perceived Western social and political institutions such as the Nigerian education system. This led to social media campaign #BringBackOurGirls which David Beckham and Michelle Obama took part in, raising awareness of modern incidences of slavery. The divided economic situation between the poverty-stricken North and oil-rich South has exacerbated the religious tensions between Christians and local Muslims.

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FIFA President Sepp Blatter referred to Cristiano Ronaldo as a “modern-day slave” in 2008 when Manchester United would not allow him to leave to go to Real Madrid, which Ronaldo concurred with: “I am a slave.” Of course, this is not a real example of modern slavery as footballers have an element of choice and are governed by contractual obligations, not by threats or coercion. There is NO control tantamount to possession (see 1926 definition). Kevin Bales: “Dilution of the reality of slavery is a disservice to those who might suffer it.”

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Qatar, hosts of the 2022 World Cup, has faced recent pressure for their antiquated labour laws, which restrict construction workers free movement rights and allow employers to treat them with impunity. The International Trade Union Confederation has warned that 4,000 workers could die before a ball is kicked in 2022 if nothing is done to protect their rights. 28 workers died via suicide in 2012 alone. Popular rhetoric speaks of the 2022 World Cup as a catalyst for change in the Middle East.

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Lord Morrow’s Human Trafficking and Exploitation Bill is currently being considered by the Northern Ireland Assembly, an attempt to update NI laws on prostitution and trafficking, which is a significant facilitator of modern day slavery through sexual exploitation. The PSNI have voiced their support of aims to “minimise harm caused by prostitution.” However, Amnesty International have urged the NIA not to introduce the Bill as it may not reduce the demand for trafficking in the field of sexual exploitation and risks forcing the prostitution trade further underground, thereby increasing the risks faced by sex workers (more likely to be subjected to absolute

possession and control by another). Pope Francis has referred to human trafficking as a “crime against humanity.” On the other hand, Kate Mogulescu warns against categorising all prostitution as modern day slavery and suggests that criminalisation actually hinders the justice system and marginalises those who partake in such activity of their own accord. 

See Draft Modern Slavery Bill 2013 proposed by Home Secretary Theresa May, which was recently scrutinised by a parliamentary committee as insufficient and “selfdefeating” for the aims pursued by the legislation.

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***Brilliant quote by British director Steve McQueen upon accepting Best Director Oscar for 12 Years A Slave: “Everyone deserves not just to survive, but to live. This is the most important legacy of Solomon Northup. I dedicate this award to all the people who have endured slavery, and the 21 million people who still suffer slavery today.”***

What Can Be Done? (Kevin Bales)

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***Kevin Bales: “The new slavery is a crime with millions of victims but very few identifiable criminals- and that makes its eradication very difficult… laws must be crafted to guarantee that increased distance doesn’t mean increased responsibility.” (Conspiracy to enslave or profiting from slavery laws- not just the ‘owner’ of slaves should be criminalised if we are to combat modern slavery).*** William Greider analyses the discrete, indirect roles of human consumption and commercialisation in slavery: “The true social values of Californians or Swedes will be determined by what is tolerated in the factories of Thailand or Bangladesh.”

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Bales insists that the key to ending slavery is putting pressure on the profits of businesses: “The freedom of human beings must have priority over the free market in goods.”

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Ridding ourselves of ignorance of the existence of slavery is also vital. We must recognise that slavery is not a “’third world’ issue but a global reality” (Bales).

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The laws ‘enforced’ worldwide to combat the slave trade are “vague, crippled by neglect, and ignored” (Bales).

Property and the Definition of Slavery (Jean Allain and Robin Hickey)

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In the context of modern slavery, the authoritative definition of slavery provided by Article 1 of the Slavery Convention 1926 is increasingly meaningless. The legal scope of slavery is still uncertain, and it is possible that emerging forms of slavery may slip through the gap of the 1926 definition without reform or clarification.

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Tony Blair in 2008: “We also need, while reflecting on the past, to acknowledge the unspeakable cruelty that persists in the form of modern day slavery.”

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The Coroners and Justice Act 2009 deals with slavery, servitude and forced or compulsory labour.

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The UK has a historically ambivalent position on slavery. Having once determined that Britain has “a soil whose air is deemed too pure for slaves to breathe in it” (Somerset v Stewart (1722)), the UK actually led the abolitionist movement and now finds itself having to combat modern slavery with legislation (see draft Modern Slavery Bill).

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Legal definition of slavery provided by Article 1(1) of 1926 League of Nations Slavery Convention which reads: “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” Ever since 1926 there have been no sufficient legislative domestic developments on slavery: does the present law ensure the slave age will not happen again?

The Problem of Interpreting the Definition of Slavery 

In 1951, the Ad Hoc Committee on Slavery determined that there was “not sufficient reason for discarding or amending the definition of slavery contained in Article 1 of the International Slavery Convention of 1926.” The definition continues to be accepted as accurate and it was included as part of Article 7(a) of the 1956 Supplementary Convention.

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However, slavery often goes beyond the concept of slavery as understood during the slave age and can be used to explain a variety of situations which do not exactly fit within the legal definition/common understanding of what slavery is. For example, Jane Kim radically argues that rape should be equated with slavery as victims of rape are “subject to the domination and degradation” by another person. Hickey and Allain claim there is “a general interpretative malaise in defining slavery.”

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In the 1990’s, the United Nation’s Working Group on Contemporary Forms of Slavery considered the following issues as falling under its expansive definition of slavery: child pornography, children in armed conflict, child soldiers, removal of organs, incest, migrant workers, sex tourism, illegal adoption, early marriages and detained juveniles. Using the term of enslavement to cover such a wide range of practices renders the 1926 definition “meaningless” according to Suzanne Miers. Such practices may be “analogous” to slavery in substance in the sense that they are morally repugnant, but is this justification for extending the definition in law? Will we ever see this expansive definition incorporated and enforced in law?

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** If controversial and morally repugnant practices can be eradicated from society or at least lessened by defining and punishing them as acts of slavery in law, is it worth doing so even if they are not traditionally or even popularly seen to be acts of enslavement? ** The 1926 definition does not use the phrase ‘slavery and all its forms’; Miers’s expanded notion of slavery is more of a result of the influence of nonlegal entities than the relatively unambiguous wording of the 1926 definition itself.

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On the other hand, outside of the definition there are two important provisos which may allow a wider definition of slavery, one of which was to bring about the “complete abolition of slavery in all its forms” and the other of which was to “take all necessary measures to prevent compulsory and forced labour” from developing into a slavery situation. Therefore, the 1926 definition is not necessarily limited to ‘common slavery’, so is reform really required?

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The 21st century has seen renewed emphasis on slavery in two ways. 1. In 2000, the signing of the Palermo Protocol, a United Nations instrument related to trafficking

in

persons

which

explicitly

mentioned

slavery.

2. In 2002, the Statute of the International Criminal Court which established the crime against humanity of enslavement. Definition: “The exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” These developments represent missed opportunities, a “false dawn” according to Allain and Hickey. The contrasting judgments of international cases Kunarac (2003) and Siliadin v France (2005) highlight the inconsistent understandings of what connotes slavery in modern society. In Kunarac, rape camps were treated as a form of slavery but courts were more reluctant to expand 1926 definition to instances of servitude as a live-in domestic worker despite deprivation of personal autonomy

(Siliadin). The ECJ held that the 1926 definition only applies where there is a de jure (concerning law) right of ownership over a person. It is unlikely that the same approach would be taken if she was also subjected to violence and/or non-consensual sexual activity. 

Sociological approach to slavery more concerned with new forms: Claude Welch says “the struggle to eradicate all forms of slavery continues”, and he also doubts the fundamental aspect of ownership to slavery. Kevin Bales outlines the three essential criteria of slavery: 1. Complete control of one person by another, through the use of violence (physical and psychological); 2. Hard labour for little or no pay; 3. Economic exploitation by the slaveholder.

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Four cases hint at modern relevance of the 1926 definition: Brima (2007)/Mani Karoau (2008)/Tang (2008)/Rantsev (2010). Rantsev left behind the notion that slavery is only applicable in de jure situations as trafficking is certainly based on exploitation and the exercise of powers attaching to the right of ownership.

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Honoré says that a right to possess is “the foundation on which the whole superstructure of ownership rests.” However, there are no longer private property rights in respect of persons; it is a “legal impossibility” (Gleeson CJ in Tang). Despite the absence of technical property rights however, factual conditions may well still pertain as a kind of control which is at least analogous to slavery, and this is what modern slavery laws must combat. ** De jure v de facto ownership **

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Common slavery no longer exists but people are still made the subject of transactions for labour and/or sexual gratification, all in the name of profit.

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See globeandmail article on modern slavery costing billions, Boko Harem story, powerpoint slides, footballers and transfers, human trafficking, the overall role of money in slavery, Qatar World Cup as well as The Guardian page on modern slavery (own heading= MY FINDINGS).

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Hayne J in Tang discouraged the overemphasis on formal slavery relations, highlighting that the principal concern should be to identify “a state of affairs in which there is the complete subjection of” one person by another: even de facto exercise of powers attaching to ownership is a profound restriction on a person’s freedom/personal autonomy.

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Hickey and Allain: “There is no very great gulf between legal and factual senses of ownership. Ownership is concerned with control.”

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The substance of the modern slavery problem is that it remains a “social institution”, but over-elaborate reading of the 1926 definition may inhibit the overall aim of eradicating relationships where one person is controlled by another.

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Some incidences of ownership are necessary in pursuit of legitimate goals, such as the detention or restriction of identified individuals by the government (public policy). The manifestations of powers attaching to ownership must occur against the background of a control relationship between persons that is tantamount to possession. Without these factual conditions, exercise of any incidental power of ownership is not slavery.

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See Bellagio-Harvard guidelines.

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Article 2(1) of the 1930 Forced Labour Convention defined forced labour as “all work or service which is exacted from a...