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International order and racial capitalism: The standardization of ‘free labour’ exploitation in international law

Published online by Cambridge University Press:  01 August 2022

Ali Hammoudi
Ali Hammoudi*
Affiliation:
National University of Singapore Faculty of Law, 469G Bukit Timah Rd, Singapore 259776 Email: [email protected]
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Abstract

The ‘question of labour’ and its exploitation in the Third World has not been given ample consideration by contemporary international legal scholars in their historical examinations of the making of the international order. This article revisits the history of the interwar institutions of the League of Nations, particularly the International Labour Organization (ILO), to argue that international law reformulated imperialism through its re-articulation of labour relations, beginning with its quest to suppress slavery and ultimately regulate forced labour in Africa. International institutions contributed to the valorization of ‘free wage labour’ in Africa and the Third World through its international ‘native labour’ policies, the development of international labour standards, and especially the passing of the 1930 Forced Labour Convention. The article argues that international institutions safeguarded the processes of capitalist racial/colonial accumulation and labour exploitation by ideologically dis-embedding the violence of slavery and forced labour from ‘free wage labour’, veiling the structural unity and totality of the international legal order with racial capitalism. Drawing on the ‘Black radical/internationalist tradition’, I propose an expansive critique of the international order as a form of ‘enslavement’ to the structures of capitalism, so as to adequately expose international law’s structural embeddedness with labour exploitation, white supremacy, and racial capitalism.

Keywords

exploitationfree labourILOracial capitalism
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 35 , Issue 4 , December 2022 , pp. 779 - 799
Copyright
© The Author(s), 2022. Published by Cambridge University Press on behalf of The Foundation of the Leiden Journal of International Law in association with the Grotius Centre for International Law, Leiden University

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Footnotes

*

A draft of this article was presented at ‘The League of Nations Decentered: Law, Crises and Legacies’ conference at Melbourne Law School (2019), and another at the Faculty Research Workshop at NUS Faculty of Law (2020). I wish to thank participants who engaged with it, and provided helpful feedback, including Damian Chalmers, Simon Chesterman, Michael Dowdle, Will Hanley, Jan Mihal, Jaclyn Neo, Anne Orford, and Ntina Tzouvala. I would especially like to thank Tony Anghie who was the discussant at the NUS workshop for his insightful comments. Last but certainly not least, many thanks to two anonymous reviewers for their very useful and detailed feedback. The usual caveat applies.

References

1 For instance, in J. d’Aspremont and S. Singh (eds.), Concepts for International Law: Contributions to Disciplinary Thought (2019), there are no entries for ‘exploitation’, ‘primitive accumulation’ or ‘racial capitalism’, although ‘imperialism’ and ‘capitalism’ are included.

2 M. Neocleous, ‘International Law as Primitive Accumulation; Or, the Secret of Systematic Colonization’, (2012) 23 European Journal of International Law 941–62.

3 ‘Totality’ is used here in the Marxist sense as the subordination of the parts to the whole – in this case the structures of the international legal order itself. See M. Jay, Marxism and Totality (1984).

4 The other side of this narrative, which is beyond the scope of this article, is land dispossession and contemporary ‘land-grabbing’. See R. Nichols, Theft is Property: Dispossession and Critical Theory (2020).

5 S. Marks, ‘Exploitation as an International Legal Concept’, in S. Marks (ed.), International Law on the Left: Re-Examining Marxist Legacies (2008), 281–308.

6 Ibid., at 300.

7 K. Marx and B. Fowkes (ed.), Capital: A Critique of Political Economy, (1976), vol. 1, 926.

8 See Marks, supra note 5, at 300. See C. Mieville, Between Equal Rights: A Marxist Theory of International Law (2005).

9 J. Rosenberg, The Empire of Civil Society: Critique of the Realist Theory of International Relations (2001), 6.

10 D. Harvey, A Companion to Marx’s Capital, (2010), vol. 1, at 291.

11 See E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (1975).

12 R. Luxemburg, The Accumulation of Capital (2003).

13 B. S. Chimni, ‘Capitalism, Imperialism, and International Law in the Twenty-First Century’, (2012) 14 Oregon Review of International Law 17–44.

14 A. A. Smith, ‘The Bloody Life of Labour Power Commodification and Fugitive Movement of the Disloyal We’, TWAILR, 30 August 2019, available at twailr.com/the-bloody-life-of-labour-power-commodification-and-the-fugitive-movement-of-the-disloyal-we/.

15 A. Anghie, Sovereignty, Imperialism and the Making of International Law (2003), 165, 168.

16 Ibid.

17 S. Pahuja, for instance, focuses on the emergence of the developmental state does not analyse the simultaneous changes in labour relations that paralleled this process. As will be shown, the dissection of the ‘political’ and the ‘economic’ through international law also occurred in relation to the construction of a labour relations regime that was integral to the developmental state. S. Pahuja, Decolonising International Law (2011).

18 B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (2017), 31. Chimni engages with Marx’s analysis of the capitalist mode of production, but does not take it further into how it operates in international law and how it affects labour.

19 Chimni’s only reference to labour is in passing when he analyses the key features of ‘global imperialism’ and the emergence of what he calls a ‘Transnational Capitalist Class’ beginning in the 1980s. He writes, ‘global imperialism is characterized by the undermining of labour rights, both at the national and the global level. Labour flexibility has today become the mantra for global capital. In fact, labour dislocation is seen as the necessary accompaniment of a mobile capital. It has resulted in the physical and mental destruction of millions of workers and their families’. Ibid., at 513.

20 See Marx and Fowkes, supra note 7, at 743.

21 M. Neocleous, War Power, Police Power (2014), 22.

22 Ibid., at 18.

23 Ibid., at 59.

24 Ibid., at 26, 85.

25 B. Bhandar, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership (2018).

26 One notable exception is G. F. Sinclair, ‘A “Civilizing Task”: The International Labour Organization, Social Reform, and the Genealogy of Development’, (2018) 20 Journal of the History of International Law 145–97.

27 D. Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940-70 (2012); A. Alcock, History of the International Labour Orgnisation (1971).

28 Africa is my focus because it was there that ‘the question of native labour’ was first dealt with by international institutions, and it was also where the internationalization of anti-slavery politics first emerged in the context of imperial intervention.

29 R. L. Buell, The Native Problem in Africa (1928).

30 G. Padmore, How Britain Rules Africa (1936), 8.

31 W. Rodney, How Europe Underdeveloped Africa (2018), 164.

32 See Padmore, supra note 30, at 3.

33 The role of race in the history of international law, including in critical international legal scholarship, has generally been understudied, although critical race theorists have long emphasized its significance. See J. T. Gathii, ‘Studying Race in International Law Scholarship Using a Social Science Approach’, (2021) 22 Chicago Journal of International Law 71, at 71–86; T. Achiume and A. U. Bali, ‘Race & Empire in International Law at the Intersection of TWAIL & CRT’, (2021) Third World Approaches to International Law Review 35, introducing the UCLA Law Review symposium ‘Transnational Legal Discourse on Race and Empire’, (2021) 6 UCLA Law Review; N. T. Saito, Settler Colonialism, Race, and the Law (2020); L. Obregon. ‘Empire, Racial Capitalism and International Law: The Case of Manumitted Haiti and the Recognition Debt’, (2018) 31 Leiden Journal of International Law 597, at 597–615; S. N’Zatioula Grovogui, Sovereigns, Quasi-Sovereigns, and Africans: Race and Self-Determination in International Law (1996).

34 C. Gevers, ‘Unwhitening the World: Rethinking Race and International Law’, (2021) 67 UCLA Law Review 1386.

35 Ibid.

36 C. J. Robinson, Black Marxism: The Making of the Black Radical Tradition (1983).

37 Ibid.

38 J. Melamed, ‘Racial Capitalism’, (2015) 1 Critical Ethnic Studies 76, at 77.

39 R. Knox, ‘Valuing Race? Stretched Marxism and the logic of imperialism’, (2016) 4 London Review of International Law 81, at 112.

40 S. Issar, ‘Theorising “racial/colonial primitive accumulation”: settler colonialism, slavery and racial capitalism’, (2021) 63 Race & Class 23, at 30.

41 O. U. Ince, ‘Primitive Accumulation, New Enclosures, and Global Land Grabs: A Theoretical Intervention’, (2014) 79 Rural Sociology 104, at 104–31.

42 Ibid., at 109.

43 Ibid.; A. Loomba, Colonialism/Postcolonialism (2005), 11.

44 J. T. Gathii, ‘Writing and Identity in a Global Context: What CRT and TWAIL Can Learn from Each Other’, (2020) 67 UCLA Law Review 1610–48.

45 See F. Klose, ‘Enforcing Abolition: The Entanglement of Civil Society Action, Humanitarian Norm-Setting, and Military Intervention’, in F. Klose (ed.), The Emergence of Humanitarian Intervention (2015), at 96–111.

46 See S. Bellucci, ‘The Ascent of African Labour Internationalism: Trade Unions, Cold War Politics and the ILO, 1919–1960’, in S. Bellucci and H. Weiss (eds.), The Internationalisation of the Labour Question: Ideological Antagonism, Workers’ Movements and the ILO since 1919 (2020), at 351–81; F. Cooper, Decolonization and African Society: The Labour Question in French and British Africa (1996). For a magisterial history of the International Trade Union Committee of Negro Workers see H. Weiss, Framing a Radical African Atlantic: African American Agency, West African Intellectuals and the International Trade Union Committee of Negro Workers (2014).

47 J. Fisch, ‘Africa as Terra Nullius: The Berlin Conference and International Law’, in S. Forster, W. J. Mommsen and R. Robinson (eds.), Bismarck, Europe, and Africa: The Berlin Africa Conference 1884–1885 and the Onset of Partition (1988), at 347–75, 358.

48 M. Craven, ‘Between law and history: the Berlin Conference of 1884–1885 and logic of free trade’, (2015) 3 London Review of International Law 31, at 31–59.

49 1885 General Act of the Conference of Berlin, Art. 9.

50 J. Allain, Slavery in International Law (2013), 72.

51 S. Miers, ‘Slavery and the Slave Trade as International Issues 1890-1939’, (1998) 19 Slavery and Abolition 16, at 19.

52 S. Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem (2003), 20–5.

53 Ibid., at 21.

54 F. Cooper, ‘Conditions Analogous to Slavery: Imperialism and Free Labor Ideology in Africa’, in K. Grant (ed.), A Civilized Savagery: Britain and the New Slaveries in Africa, 1884–1926 (2015), 206.

55 E. Williams, Capitalism and Slavery (1944).

56 One need only recall how the British, who always viewed themselves as leaders of the international crusade against slavery, after the 1815 Vienna Treaty signed over hundreds of special treaties securing rights to search and seize any ship on the high seas suspected of smuggling slaves. The law of the sea would be developed to accommodate this new form of policing of the high seas. See A. Nicholson, ‘Transformations in the Law Concerning Slavery: Legacies of the Nineteenth Century Anti-Slavery Movement’, in W. Mulligan and M. Bric (eds.), A Global History of Anti-Slavery Politics in the Nineteenth Century (2013), at 214–36.

57 S. Zimmermann, ‘The Long-Term Trajectory of Anti-Slavery in International Politics: From the Expansion of the European International System to Unequal International Development’, in M. Van Der Linden (ed.), Humanitarian Intervention and Changing Labor Relations: The Long-Term Consequences of the Abolition of the Slave Trade (2011), at 435-97, at 436.

58 Ibid.

59 A. R. Forclaz, Humanitarian Imperialism: The Politics of Anti-Slavery Activism 1880-1940 (2015).

60 The model treaties drafted by the British to suppress the slave trade ‘implied structural interference’ with the sovereign powers of African states. See I. Van Hulle, Britain and International Law in West Africa (2020), 84.

61 S. Drescher and P. Finkelman, ‘Slavery’, in B. Fassbender and A. Peters (eds.), The Oxford Handbook of the History of International Law (2012), at 890–915.

62 G. Gong, The Standard of ‘Civilization’ in International Law (1984), 15.

63 See Drescher and Finkelman, supra note 61, at 915. The well-known example is, of course, the Italian invasion of Ethiopia, which was labeled an outlaw state that did not deserve membership in the League. Both these actions were justified on the basis of the existence of slavery and the supposed inability of that government to fulfill its obligations. As Lugard once wrote about the Abyssinia crisis and its connection to anti-slavery ‘[i]nternational cooperation [on slavery] … undoubtedly promote[d] the material interests of the [Great] Powers’. F. D. Lugard. ‘Slavery and Abyssinia’, 6 November 1922, League of Nations Mandates, The Question of Slavery, 1922, LoN Doc (R.61) 24628/23252, at 7. See J. Allain. ‘Slavery and the League of Nations: Ethiopia as a Civilised Nation’, (2006) 8 Journal of the History of International Law 213, at 213–44.

64 See Zimmermann, supra note 57, at 446.

65 See Cooper, supra note 54, at 111.

66 See Zimmermann, supra note 57, at 446.

67 1920 Treaty of Peace with Germany (Treaty of Versailles), Part XIII, Section I.

68 1919 Covenant of the League of Nations, Art. 23.

69 J. T. Shotwell, ‘The International Labour Organization as an Alternative to Violent Revolution’, (1933) 166 Annals of the American Academy of Political and Social Science 18, at 18–25. The tripartite framework of ILO was considered as an alternative to ‘class war,’ as it prioritized co-operation between workers, governments, and employers.

70 Robert Cox once described the establishment of the ILO as the ‘Versailles answer to Bolshevism’. R. Cox, ‘ILO: Limited Monarchy’, in R. Cox and H. Jackson (eds.), The Anatomy of Influence: Decision Making in International Organization (1972), 103.

71 G. F. Sinclair, To Reform the World: International Organizations and the Making of Modern States (2019), 5.

72 Ibid., at 107.

73 See H. Grimshaw, ‘The Mandate System and the Problem of Native Labour’, in Problems of Peace: Lectures Delivered at the Geneva Institute of International Relations, vol. 3, Part 4 (1929).

74 See Miers, supra note 52, at 102. See F. Lugard, The Dual Mandate in British Tropical Africa (1922).

75 Report of the Temporary Slavery Commission, League of Nations Doc. A19.1925. VI.,3 (1925).

76 See Miers, supra note 52, at 102.

77 League of Nations, Temporary Slavery Commission Report: Report to the Council (1924).

78 See J. Allain, The Slavery Conventions: The Travaux Preparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008).

79 Ibid., at 109.

80 1926 Slavery Convention, 60 League of Nations Treaty Series 254, Art. 1(1).

81 Ibid.

82 See Zimmermann, supra note 57, at 494.

83 1926 Convention to Suppress the Slave Trade and Slavery, 60 LNTS 253.

84 D. Maul, ‘The International Labour Organization and the Struggle against Forced Labour from 1919 to the Present’, (2007) 48 Labor History 477, at 480.

85 L. Rodriguez-Pinero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (2005), 17–53.

86 See Treaty of Versailles, supra note 67, Art. 35.

87 S. Zimmermann, ‘“Special Circumstances” in Geneva: The ILO and the World of Non-Metropolitan Labour in the Interwar Years’, in J. Van Daele, M. R. Garcia and G. van Goethem (eds.), ILO Histories: Essays on the International Labour Organization and Its Impact on the World During the Twentieth Century (2010), at 221–50.

88 A. Alcock, History of the International Labour Organisation (1971), 84.

89 Ibid., at 34, 83.

90 N. Tzouvala, Capitalism as Civilisation: A History of International Law (2020).

91 Ibid.

92 See R. Knox, ‘Haiti at the League of Nations: Racialisation, Accumulation and Representation’, (2020) 21 Melbourne Journal of International Law 245.

93 See Gevers, supra note 34, at 11.

94 1930 C29 Forced Labour Convention, 1959 UNTS 294.

95 See Alcock, supra note 88, at 83.

96 B. Rajagopal, International Law from Below (2003), 39.

97 Proceedings of the International Labour Conference, 12th Session, Vol. I (1929), 50.

98 For the classic study on the notion of the ‘lazy native’, See S. H. Alatas, The Myth of the Lazy Native: A Study of the Image of the Malays, Filipinos and Javanese from the 16 th to the 20 th Century and Its Function in the Ideology of Colonial Capitalism (1977). William Ormsby-Gore, British Secretary of State for the Colonies, who was appointed chairman of the East African Commission in 1924 to write a report on the state of economic development and labour practices in the colonies referred to idleness as the problem of ‘the slave mind’: ‘One of the principal curses of slavery … was the production of the slave mind. A human being accustomed to slavery, when freed seemed to have lost all incentive to work’, The Report of the East African Commission (1925), 37.

99 S. Pederson, The Guardians: The League of Nations and the Crisis of Empire (2018), 237–60.

100 Ibid.

101 See E. Hobsbawm and T. Ranger (eds.), The Invention of Tradition (2012).

102 O. Okia, Labor in Colonial Kenya after the Forced Labor Convention, 1930–1963 (2019), 13.

103 J. Seibert, ‘More Continuity than Change? New Forms of Unfree Labor in the Belgian Congo’, in M. van der Linden (ed.), Humanitarian Intervention and Changing Labor Relations: The Long-Term Consequences of the Abolition of the Slave Trade, (2011), 369–86.

104 J. Ball, Angola’s Colossal Lie: Forced Labor on a Sugar Plantation, 1913–1977 (2015).

105 M. B. Jeronimo and J. P. Monteiro, ‘Internationalism and the Labours of the Portuguese Colonial Empire (1945–1975)’, (2013) 29 Portuguese Studies 142, at 142–63.

106 J. Sender and S. Smith, The Development of Capitalism in Africa (1986), 47.

107 E. Allina, Slavery by Any Other Name: African Life under Company Rule in Colonial Mozambique (2012), 6.

108 See Padmore, supra note 30, at 65.

109 J. Woddis, Africa: The Roots of Revolt (1961), 73.

110 See Buell, supra note 29, at 503.

111 See R. Rathbone, ‘West Africa, 1874–1948: Employment Legislation in a Nonsettler Peasant Economy’, in D. Hay and P. Craven (eds.), Masters, Servants and Magistrates in Britain and the Empire, 1562–1955 (2004), 488.

112 See Rodney, supra note 31, at 199.

113 Woddis emphasized that this was not in any way rhetorical: ‘To people in the West the constant use by Africans of the word “slavery” when protesting against their appalling [labour] conditions may appear a sweeping exaggeration. But to those who care to acquaint themselves with the realities of the African scene, to learn of the conditions under which Africans first came to work for Europeans, and of the indignities, humiliations and brutalities under which that are still compelled to work, the word and its use are fully justified’. See Woddis, supra note 109, at 80.

114 See Maul, supra note 84, at 482.

115 See Woddis, supra note 109, at 63.

116 Quoted in ibid., at 64.

117 See Cooper, supra note 54, at 132.

118 W. E. Du Bois, The Souls of Black Folk (1997). See M. Lake and H. Reynolds, Drawing the Global Colour Line: White Men’s Countries and the International Challenge of Racial Equality (2008).

119 See R. Vitalis, White World Order, Black Power Politics: The Birth of American International Relations (2015), 32, 93.

120 A. Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination (2019), 80.

121 See Williams, supra note 55.

122 K. Marx, The Poverty of Philosophy (1956), 124.

123 C. L. R. James, The Black Jacobins (1938).

124 For contemporary literature that reorients the agency of slaves see V. Brown, Tacky’s Revolt: The Story of an Atlantic Slave War (2020).

125 Henry J. Richardson III was an international lawyer who was clearly influenced by this tradition when he wrote his monumental work, The Origins of African-American Interests in International Law (2008). See A. Anghie, ‘Slavery and International Law: The Jurisprudence of Henry Richardson’, (2017) 31 Temple International and Comparative Law Journal 11.

126 See Getachew, supra note 120, at 80.

127 See Padmore, supra note 30, at 386.

128 W. E. Du Bois, ‘Manifesto to the League of Nations’, (1921) 23 The Crises 12, at 12–28.

129 N. Bernards, The Global Governance of Precarity: Primitive Accumulation and the Politics of Irregular Work (2019), 18.

130 J. Banaji, ‘The Fictions of Free Labour: Contract, Coercion, and So-Called Unfree Labour’, (2003) 11 Historical Materialism 69, at 69–95.

131 M. De Angelis, ‘Separating the Doing and the Deed: Capital and the Continuous Character of Enclosures’, (2004) 12 Historical Materialism 57, at 57–87.

132 See Bernards, supra note 129, at 21.

133 Ibid., at 46.

134 See Zimmermann, supra note 57, at 248.

135 Ibid., at 249.

136 The 1998 ILO Declaration on Fundamental Principles and Rights of Work point to four principles and rights that must be respected by member states, including Freedom of association, Recognition of the right to Collective Bargaining, Elimination of Forced Labour, and Abolition of Child Labour. The eight core ILO Conventions include, the 1948 Freedom of Association and Protection of the Right to Organize Convention (No. 87); the 1949 Right to Organize and Collective Bargaining Convention (No.98); 1951 Equal Remuneration Convention (No.100); 1957 Abolition of Forced Labour Convention (No.105); 1958 Discrimination (Employment and Occupation) Convention (No. 111); 1973 Minimum Age Convention (No. 138); and the 1999 Worst Forms of Child Labour Convention (No. 182).

137 Except for the elimination of the ‘transitional period’ where forced labour would be allowed. It is now considered that all forms of forced labour must be abolished.

138 See Sinclair, supra note 71, at 55.

139 A. Martineau, ‘Forced Labour’, in S. Pahuja, G. Simpson and M. Craven (eds.), International Law and the Cold War (2019), 271–86.

140 See V. Kumar, ‘Rethinking the Convergence of Human Rights and Labour Rights in International Law: Depoliticisation and Excess’, in P. Zumbansen and R. Buchanan (eds.), Law in Transition: Human Rights, Development and Transitional Justice (2014), 127–39.

141 United Nations General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, UN Doc. A/Res./55/25 (2000).

142 J. P. Daughton, ‘ILO Expertise and Colonial Violence in the Interwar Years’, in S. Kott and J. Droux (eds.), Globalizing Social Rights: The International Labour Organization and Beyond (2013), 85, at 91.

143 Ibid., at 95.

144 G. Lebaron and A. Ayers, ‘The Rise of a “New Slavery”? Understanding African unfree labour through neoliberalism’, (2013) 34 Third World Quarterly 873, at 873–92.

145 K. Rittich, ‘Historicising Labour in Development: Labour Market Formalisation through the Lens of British Colonial Administration’, in D. Ashiagbor (ed.), Re-Imagining Labour Law for Development: Informal Work in the Global North and South (2019), at 21–49.

146 ILO, Forced Labour, Modern Slavery and Human Trafficking (2018).

147 See K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (2001).

148 As J. Allain illustrates, ‘The determination as to what is considered coercive and what is to be considered free labour is “a judgment about what kinds of coercive pressures are legitimate and illegitimate in labour relations”’. In other words, capitalist labour relations operate under a ‘coercion continuum’ and law merely manages the kind of coercion that is acceptable. J. Allain, ‘Exploitation and Labour in International Law’, in J. Allain, The Law and Slavery: Prohibiting Human Exploitation (2015), 348.

149 See S. Quinn-Judge, Ho Chi Minh: The Missing Years 1919–1941 (2003), 60.

150 L. Senghor, La violation d’un pays et autre ecrits anticolonialiste (2012).

151 C. W. Mills, The Racial Contract (1997).