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PROPERTY AND THE DEFINITION OF SLAVERY

Published online by Cambridge University Press:  26 October 2012

Jean Allain  and
Robin Hickey
Jean Allain
Affiliation:
Professor of Public International Law, School of Law, Queen's University Belfast, Extraordinary Professor, Human Rights Centre, Faculty of Law, University of Pretoria, South Africa, [email protected]
Robin Hickey
Affiliation:
Senior Lecturer, Durham Law School, [email protected].
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Abstract

Currently there is no clear understanding of the meaning of ‘slavery’ in modern international law. While generally it is accepted that the authoritative definition of slavery is provided by Article 1 of the Slavery Convention 1926, in recent times slavery has been understood in such a wide variety of ways that effectively it is a meaningless term. This paper reflects on this interpretation problem and aims to redress this balance by reclaiming the core meaning of the legal definition. It applies property law perspectives to explain the conception of ownership invoked by Article 1, to argue that it remains relevant and to explore how it might be applied in identifying modern cases of slavery.

Keywords

enslavementexploitationpossessionpropertyslaverytrafficking
Type
Articles
Information
International & Comparative Law Quarterly , Volume 61 , Issue 4 , October 2012 , pp. 915 - 938
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 T Blair, Times Online, ‘Tony Blair's Statement on the Slave Trade in Full’, 27 November 2006.

2 Somerset v Stewart (1722) Lofft 1; 98 ER 500.

3 Art 31(3)(a), Vienna Convention on the Law of Treaties 1969.

4 This point bears some emphasis, because generally examples abound of League of Nations era treaties which are no longer applicable, whether in virtue of having been overridden by more up-to-date agreements (such as the Covenant of the League of Nations being superseded by the Charter of the United Nations), or because some of their elements have become dead-letter law, desuetude brought on by a lack of use (such as those transitional provisions of the 1930 Forced Labour Convention [Articles 3–24], which have been declared to be no longer applicable, the window of their possible application now considered closed. See International Labour Organisation, Report of the Committee of Experts on the Application of the Conventions and Recommendations, Eradication of Forced Labour, 2007, 6).

5 Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, 7.

6 See Article 7(a), Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956; which reads:

‘Slavery’ means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and ‘slave’ means a person in such condition or status.

7 United Nations, General Assembly, Preparatory Committee on the Establishment of an International Criminal Court, Summary of the Proceedings of the Preparatory Committee during the Period 25 March-12 April 1996, UN Doc. A/AC.249/1, 7 May 1996, 64.

8 See Article 7(2)(c), Rome Statute of the International Criminal Court, 1998, which reads:

‘Enslavement’ means 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.

9 See Kim, J, ‘Taking Rape Seriously: Rape as Slavery’ (2012) 35 Harvard Journal of Law and Gender 294Google Scholar.

10 ibid 293.

11 See the reports of the Working Group on Contemporary Forms of Slavery (UN Doc: E/CN.4) at the website of the UN High Commissioner for Human Rights: <http://ap.ohchr.org/Documents/gmainec.aspx > .

12 Miers, S, Slavery in the Twentieth Century (AltaMira Press 2003) 453Google Scholar.

13 ibid 130.

14 Report of the International Commission of Inquiry into the Existence of Slavery and Forced Labour in the Republic of Liberia, 8 September 1930; Publication of the Department of State, United States Government Printing Office, 1931.

15 ibid 4. Emphasis added.

16 ibid 15.

17 See Allain, J, ‘The Definition of Slavery in International Law’ (2009) 52 HowLJ 249–51Google Scholar.

18 United Nations Sub-Commission on the Promotion and Protection of Human Rights, Contemporary Forms of Slavery: Updated review of the implementation of and follow-up to the conventions on slavery, Working Paper prepared by David Weissbrodt and Anti-Slavery International, UN Doc. E/CN.4/Sub.2/2000/3, 26 May 2000, 5. Emphasis in the original quotation.

19 For the various servitudes, see ibid 5.

20 See United Nations, Economic and Social Council, Social Committee, Summary Record of the Five Hundred and Thirty-Sixth Meeting, 7 July 1966, UN Doc E/AC.7/SR.536, 14 December 1966; and United Nations, Economic and Social Council, Resolution 1126 (XLI), 26 July 1966.

21 See Allain, J, The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (Martinus Nijhoff 2008) 50–60CrossRefGoogle Scholar.

22 League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI.B.5, 24 September 1926, 2.

23 International Criminal Tribunal for the former Yugoslavia, Kunarac et als (IT-96-23 & IT-96-23/1-A) Judgment, 12 June 2002, para 117.

24 ibid paras 118–119.

25 European Court of Human Rights, Siliadin v France (Application 73316/01), 26 July 2005, para 122.

26 C Welch, ‘Defining Contemporary Forms of Slavery: Updating a Venerable NGO’ (2009) 31 HumRtsQ 97–8. Consider also N McGeehan, ‘Misunderstood and Neglected: The Marginalisation of slavery in International Law’ (2012) 15 IJHR 436. This piece demonstrated the level of confusion in the literature as the author argues first, that slavery ‘is related exclusively to ownership, and therefore only applicable to chattel slavery’; but concludes by stating that it is a ‘fallacious notion that slavery relates to ownership’. See 442 and 457.

27 Welch (n 26) 97–8.

28 Bales, K and Soodalter, R, The Slave Next Door: Human Trafficking and Slavery in America Today (University of California Press 2009) 13CrossRefGoogle Scholar.

29 See Brima et als, Special Court for Sierra Leone, Trial Chamber, SCSL-2004-16-T, 20 June 2007, paras 744–747; which relates to the enslavement of men as a means of extracting forced labour in alluvial diamond fields. Hadijatou Mani Koraou v Niger, ECOWAS Community Court of Justice, ECW/CCJ/JUD/06/08, 27 October 2008; which relates to the enslavement of a female from childhood onwards under the pretext of marriage. The Queen v Tang, High Court of Australia [2008] HCA 39, 28 August 2008; and Rantsev v Cyprus and Russia, Application no. 25965/04, 7 January 2010.

30 Rantsev (n 29) paras 276, 280–281. See Allain, J, ‘Rantsev v. Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 HRLRev 546–57Google Scholar.

31 Tang (n 29) para 2.

32 ibid paras 25–26.

33 The powers attaching to the right of ownership set out by the United Nations Secretary-General in: United Nations, Economic and Social Council, Report of the Secretary-General on Slavery, the Slave Trade, and Other Forms of Servitude, U.N. Doc. E/2357, 27 January 1953, 36, n 1; read:

  1. 1.

    1. the individual of servile status may be made the object of a purchase;

  2. 2.

    2. the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction other than that which might be expressly provided by law;

  3. 3.

    3. the products of labour of the individual of servile status become the property of the master without any compensation commensurate to the value of the labour;

  4. 4.

    4. the ownership of the individual of servile status can be transferred to another person;

  5. 5.

    5. the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it;

  6. 6.

    6. the servile status is transmitted ipso facto to descendants of the individual having such status.

34 Tang (n 29), para 26.

35 The best-known and most influential explanation of ownership in these terms is an essay by Tony Honoré first published in 1961, where the kinds of activities described above are distilled to 11 ‘incidents’ of ownership: AM Honoré, ‘Ownership’ in AG Guest (ed), Oxford Essays in Jurisprudence (OUP 1961). Honoré's work has informed later scholarship on property, and is generally accepted as a departure point in conceptualizing ownership see: Becker, LC, Property Rights: Philosophic Foundations (Routlege & Kegan Paul 1977, repr 1983) 7, 18Google Scholar; Waldron, J, The Right to Private Property (Clarendon Press 1988), 27–18Google Scholar, 49; Munzer, SR, A Theory of Property (CUP 1990), 22–7CrossRefGoogle Scholar; Penner, JE, ‘The Bundle of Rights Picture of Property’ (1995–6) 43 UCalLALRev 711Google Scholar; and see Harris, JW, Property and Justice (OUP 1996) 125–30Google Scholar.

36 Katz, L, ‘Exclusion and Exclusivity in Property Law’ 58 (2008) University of Toronto Law Journal 275CrossRefGoogle Scholar.

37 Specifically we want to avoid the impression that in engaging the explanatory value of an incidents-based description of ownership we are committed to a bundle of rights account of property. Generally substantive description of the standard case of ownership may be consistent with a theoretical position which contends, in contradistinction to bundle of rights accounts, that property does not lack coherent conceptual unity. Consider for example: Penner (n 35) esp 731–3, and 754ff, treating Honoré's account as a ‘elaboration’ of the entitlements entailed by the ‘right to exclusive use’, which latter is argued to provide the core conceptual base of property.

38 For the subdivision of all jural relations (of which the content of ownership is but one example) into rights, liberties, powers and immunities, see Hohfeld, WN, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913–14) 23 YaleLJ 16Google Scholar.

39 Honoré says a right to possess is ‘the foundation on which the whole superstructure of ownership rests’: Honoré (n 35) 113.

40 J Penner, The Idea of Property in Law (Clarendon Press 1997); B McFarlane, The Structure of Property Law (Hart Publishing 2008) 22–3.

41 Penner (n 40); Harris (n 35) 24–6.

42 Indeed, on one theoretical view commonly-held by property scholars, the whole content of ownership consists in the proposition that A has a right to exclude everyone else from the resource in question. See for example McFarlane (n 40) 22–3. For an overview of the theoretical position which emphasizes the right to exclude as the basis of ownership, see L Katz (n 36), 279–85, and the discussions cited there.

43 Penner (n 40) 103; and J. Penner, ‘Ownership, Co-ownership, and the Justification of Property Rights’ in T Endicott et al (eds), Properties of Law: Essays in Honour of Jim Harris (OUP 2006), 167–8.

44 There might (and almost certainly will) be outside limits to this freedom. So A might commit a civil or criminal wrong if, say, she allows her thing to cause nuisance or physical harm to her neighbour. In this sense legal systems will always fix the boundaries of permissible uses, but within those parameters, there is freedom, not regulation.

45 Tang (n 29), para 20 (Gleeson CJ). For a rare exception, see: Hadijatou (n 29); noted Allain, J, ‘Hadijatou Mani Koraou v. Republic of Niger’ (2009) 109 AJIL 311CrossRefGoogle Scholar.

46 As occurred on the facts of the European Court of Human Rights decision in Siliadin (n 25).

47 See Tang (n 29), para 26.

48 See United Nations, Economic and Social Council, Report of the Secretary-General on Slavery, the Slave Trade, and Other Forms of Servitude, U.N. Doc. E/2357, 27 January 1953, 36, n 1.

49 If it is usually the case that sovereign States will not recognize that one person might hold a private property right in respect of another person, correlatively we are unlikely to find a regime which expressly secures such relations from expropriation.

50 Tang (n 29) para 148.

51 Hohfeld, WN, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913–14) 23 YaleLJ 16Google Scholar, continued (1916–17) 26 YaleLJ 710.

52 See generally: Markby, W, Elements of Law (6th edn, Clarendon Press 1905)Google Scholar, paras 307, 309, 314; Holmes, OW Jnr, The Common Law (Little Brown 1881) 245Google Scholar; Pollock, F and Wright, RS, An Essay on Possession in the Common Law (Clarendon Press 1888), 22Google Scholar, 93.

53 In a legal dispute over a thing, a claimant would allege he was dominus ex iure Quiritium (owner by Quiritiary right), the Quiritiary law being the ancient civil law of Rome: see Nicholas, B, An Introduction to Roman Law (Clarendon Press 1962), 63Google Scholar, 101.

54 Christian, E (ed), Commentaries on the Laws of England by Sir William Blackstone (15th edn, Cadell & Davies, 1809)Google Scholar, Book 2, ch 1.

55 Katz (n 36) 275.

56 Katz makes this same observation in the case of things subject to private law ownership, where others sometimes have property rights which are not inconsistent with the rights of the owner, but which nevertheless will contribute to determination of how the thing is to be used: for example, a right of way over particular land: ibid 294–5.

57 For more on this difference between slavery and forced labour, see further below.

58 For the examples set out by the United Nations Secretary-General see (n 33); with regard to the International Criminal Court, the secondary legislation of the Court, its Elements of the Crime touching on enslavement states that the ‘The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’. See International Criminal Court, Assembly of States Parties, Elements of the Crimes, ICC-ASP/1/3, 9 September 2002, 117. Emphasis added.

59 See Hadijatou (n 29) para 8 which reads: ‘In 1996, while she was only twelve (12) years old, the applicant, Mrs Hadijatou Mani Koraou, of the Bouzou custom was sold to the tribe chief, Mr El Hadj Souleymane Naroua, of the Haoussa custom, aged 46 years old, for two hundred and forty thousand (240.000) CFA francs’.

60 See Federation of Women Lawyers – Kenya (FIDA-Kenya) and the International Women's Human Rights Clinic, Kenyan Laws and Harmful Customs Curtail Women's Equal Enjoyment of ICESCR Rights, Submission to the Kenyan Government's Initial Report under the United Nations Committee on Economic, Social, and Cultural Rights, 2008; and Human Rights Watch, Double Standards: Women's Property Rights Violations in Kenya, 2003, 12.

61 See United Nations, Human Rights Council, Mission to Mauritania, Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Gulnara Shahinian, UN Doc. A/HRC/15/20/Add.2, 24 August 2010; and Anti-Slavery International and Association Timidira, GK Abdelkader (ed), ‘Slavery in Niger: Historical, Legal and Contemporary Perspectives’ (2004).

62 See Brima et als (n 29) 66–67; where the Appeals Chamber constituted such ‘forceful abduction and use of women and girls as forced conjugal partners’, as the crime against humanity of ‘forced marriage’.

63 See Organization of American States, Inter-American Commission on Human Rights, Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, 24 December 2009, OEA/Ser.L/V/II, Doc. 58, 24 December 2009.

64 See Florida Farm Labour Slavery Prosecutions, 1997–2010, in Coalition of Immokalee Workers, Slavery in the Fields and Food We Eat at <http://www.sfalliance.org/resources/10SlaveryinFields.pdf > .

65 See Bales, K, Disposable People: New Slavery in the Global Economy (University of California Press 1999)Google Scholar.

66 See United Nations, Human Rights Council, Report on Child Slavery in the Artisanal Mining and Quarrying Sector; Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Gulnara Shahinian, UN Doc. A/HRC/18/30, 4 July 2011; Anti-Slavery International, Begging for Change: Research findings and recommendations on forced child begging in Albania/Greece, India and Senegal, 2009; and Human Rights Watch, Off the Backs of the Children: Forced Begging and Other Abuses against Talibés in Senegal, 2010.

67 See Siliadin (n 25); and Rantsev (n 29); as well as Cullen, H, ‘Siliadin v France: Positive Obligations under Article 4 of the European Convention on Human Rights’ (2006) 6 HRLRev 585Google Scholar and O'Connell, R, ‘Realising Political Equality: The European Court of Human Rights and Positive Obligations in a Democracy’ (2010) 61 Northern Ireland Legal Quarterly 263CrossRefGoogle Scholar.

68 See generally the Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, in J Allain (ed), The Legal Parameters of Slavery: From the Historic to the Contemporary (OUP 2012).

69 United Nations, Economic and Social Council, Report of the Secretary-General on Slavery, the Slave Trade, and Other Forms of Servitude, U.N. Doc. E/2357, 17 January 1953, p 27.

70 The 1926 Convention recognizes that forced labour can develop ‘into conditions analogous to slavery’. The 1956 Supplementary Convention recognizes that institutions and practices similar to slavery may be ‘covered by the definition of slavery contained in article 1 of the Slavery Convention of 1926’.

71 Article 2(1), Forced Labour Convention, 1930 (ILO Convention Number 29).

72 Brima et als (n 29).

73 ibid., 369 and Anonymous Witness TF1-045, Transcripts, 19 July 2005, 5.

74 ibid., 367–368 and Anonymous Witness TF1-062, Transcripts, 27 June 2005, 27–28.