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Had Olaudah Equiano, Abraham Lincoln, or William Wilberforce been able to look into the future to the twenty-first century, what they may have been most struck by was not how far we had come in ending slav- ery and suppressing human exploitation but, rather, that we had yet to agree on what in fact the term “slavery” means. This is a rather intrigu- ing puzzle, as a consensus has existed for more than eighty-five years among states as to the legal definition of slavery. Yet, this definition has failed to take hold among the general public or to “speak” to those in- stitutions interested in the ending of slavery. At first blush, this is not so hard to understand since the definition, drafted in the mid-1920s by legal experts, is rather opaque and seems to hark back to a bygone era. The definition found in the 1926 Slavery Convention reads: “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership is exercised.”^1 At first sight, the definition really does not convey much to the reader, but for the fact that it appears to require that a person own another. As the ownership of one person by another has been legislated out of existence – again – it appears that this definition would have no traction in the contemporary world. Yet, this is not so since the legal definition of slavery established in 1926 has been confirmed twice: first, by being included in substance in the 1956 Supplementary Convention
Contemporary Slavery 2
and its definition in law
Jean Allain
Contemporary Slavery and Its Definition in Law 37
on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Supplementary Convention) and, more re- cently, in the 1998 Rome Statute of the International Criminal Court (Rome Statute). 2 Further, the definition’s contemporary relevance has been validated by international courts and been given its most in-depth consideration by the High Court of Australia in the 2008 case The Queen v Tang. 3 Thus, we know that the definition holds, but what we do not truly know is what it means. This chapter unpacks the 1926 definition of slavery to demonstrate the manner in which it can and should be read so as to give it substance both as a legal tool – to assist in the prosecution of individuals involved in enslaving others, be it through the trafficking process or otherwise
- and as an advocacy tool meant to aid in bringing contemporary slav- ery to the forefront of public consciousness, in suppressing slavery, and in assisting the victims. This chapter starts unpacking the definition by providing guidance as to how the property paradigm of the definition can be translated so as to reflect both the lived experiences of slaves and to provide the legal parameters, so as to give the term slavery legal cer- tainty. That is to say, it provides a manner to read the definition and apply it. The chapter then works backwards in time, putting in place the background and evolution that allow for this contemporary under- standing to emerge by further unpacking the 1926 definition and con- sidering its various elements with reference to the Tang judgment. The chapter then concludes by going back further in time, to consider the evolution of the 1926 definition and to show the dynamics that have been at play, which first marginalized its use but later breathed new life into the definition. In setting out this chapter in this manner, it will read like a “how to” manual, giving the reader both the ability to under- stand what slavery means in legal terms and, if need be, to follow its genealogy backwards to provide further understanding if need be.
Understanding the Definition of Slavery Over a two-year period, from 2010 through to 2012, more than a dozen experts in the area of slavery and the law came together to develop the Bellagio-Harvard Guidelines on the Legal Parameters of Slavery. 4 This Research Network on the Legal Parameters of Slavery, established
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of a person to exercise their natural capacities when they find them- selves in a “state of unlimited subordination to another individual.”^5 The link between this property paradigm and slavery is, in a word, control. In any situation of ownership, the owner controls the thing owned. This is normally understood a possession. Typically, possession means physical possession, but it can also mean the ability to control access to a thing, such as when a person possesses the content of their house by simply controlling access to that house by means of the front door key. With this in mind, slavery should be understood as the ability of one person to control another as they would possess a thing. Ownership implies such a background relationship of control. Where a slave is concerned, this control is tantamount to possession. It is control exercised in such a manner as to significantly deprive that person of their individual liberty. Normally, this control is exercised through vio- lence and later through threats of violence or coercion, but it may also emerge through deception and/or coercion. One need not physically control a person, in the same way that one need not physically possess the contents of one’s house; control tantamount to possession of a per- son goes beyond their physical control. In the language of the 1926 definition of slavery, possession is one of the powers attaching to the right of ownership. To exercise possession over a person is foundational to the concept of slavery. It is the hallmark of slavery. Slavery can only be present if possession is present; if control tantamount to possession is being exercised. It is foundational, as the Bellagio-Harvard Guidelines on the Legal Parameters of Slavery make plain
- possession is a hallmark of slavery – and only if possession is exercised can any or all of the other powers attaching to ownership be exercised. Thus, one cannot sell something if one does not first possess it. In the same manner, one cannot sell a person if one does not control him or her in a manner that is tantamount to possession. In a related manner, the ability to sell a person will be indicative of the presence of control tantamount to possession. The reverse also holds: possession allows for the ability to sell; selling indicates possession. What then are the other powers attaching to the right of ownership? Well, the power to buy or sell a person – to involve a person as the object
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of a transaction – may provide evidence of slavery. It is worth emphasiz- ing that it may provide evidence of slavery. It is sometimes said that athletes are slaves because they are bought and sold. While it may be true that their services are being bought and sold, such transactions fail to meet the threshold of slavery if there is a lack of control over the athlete that would amount to possession. While the football player hav- ing been sold to another club and forced to move cities may deem it unfair; he or she will not be compelled to go be it under threats of vio- lence or otherwise. The athlete may not like it, but he or she can walk away. In cases of slavery, somebody is exercising control in such a man- ner as to significantly deprive the enslaved of her or his individual lib- erty. The person enslaving is dictating what the enslaved is to do and backing up these dicta with violence either actual or latent. So, it is not enough in meeting the threshold of slavery to say that a person has been bought or sold, though it may indicate that slavery is present. What is required is to establish whether control tantamount to posses- sion is present. The same would be true where other such transactions involving human beings are concerned, such as bartering, exchanging, or gifting a person to another. A second power attaching to the right of ownership is the ability to use a person. Again, one person can use another, but this need not amount to slavery. Nevertheless, such use may amount to slavery if the background relationship of control is present to such an extent that it is tantamount to possession. By using a person, what is meant is the deriving of benefit from his or her service or labour. In the case of slav- ery, such benefit might be the savings incurred as a result of paying little or no salary for labour or the gratification from sexual services. Closely associated with the use of a person is the power attaching to the right of ownership manifest in the ability to manage the use of a person. In general terms, it goes without saying that to manage a person is not to enslave them. Division of labour is such that employers make legiti- mate decisions on a daily basis about the management of workers. Where it will amount to slavery is when there exists control tantamount to possession, and then management of the use of a slave takes place. Such management will include direct management, where, for instance, a brothel owner delegates powers to a day manager in a case of slavery
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In the language of property law, it is said that ownership can entail the ability to use up property; to exhaust a thing owned; to consume it. You can use a car until you run it into the ground; you can exhaust a pack mule; you can consume food. In the case of slavery, this power at- taching to the right of ownership may be understood in relation to the disposal, mistreatment, or neglect of a person. Having established con- trol tantamount to possession, slavery will be manifest where the disre- gard for the well-being of the person is evidenced by severe physical or psychological exhaustion, which, if allowed to carry on to its logical conclusion, would entail the death of the enslaved. In this case, the de- struction of the person is a process of physical or psychological exhaus- tion; the person is broken and, over time, he or she grows frail, either in body or in mind. A final power attaching to the right of ownership is worth mention- ing, but more for its inapplicability to human beings then for its value in seeking to establish evidence of slavery taking place. With regard to what in property law is called “security of holding,” the owner of prop- erty can exercise a power attaching to the right of ownership against an attempt by the state to expropriate. Such security of holding will not mean that expropriation is not allowed but, rather, that there is due pro- cess, a public interest, and that fair, market value, compensation will be provided. However, in a contemporary setting where individuals can no longer own slaves de jure , such ownership of slaves is no longer protect- ed from expropriation by the state. Of course, the corollary is that expro- priation cannot take place because the state cannot then take over the deed of ownership of a person. Instead, where slavery is concerned, one might think of an “insecurity of holding,” a duty on the state to “expro- priate”; to confiscate human beings held in situations tantamount to possession, so as to liberate them. What I am thinking of here is the posi- tive obligation on the state to suppress slavery. In human rights law, there is established, at minimum, a positive obligation to bring about the end of slavery and to effectively criminalize such enslavement.^7 Having set out the various powers attaching to the right of owner- ship, one gets a sense of what will constitute slavery in law. Having estab- lished a background relationship of control that would amount to possession, the exercise of powers attaching to the right of ownership
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will include the buying, selling, using, managing, profiting, and even the destruction of another person. In seeking to make a determination as to whether slavery exists in such a situation, it would be important to evalu- ate the specific circumstances and not make a judgment based on what the specific practice might be called. This is important as there is confu- sion within the realm of human exploitation, as certain terms, such as “slavery” and “practices similar to slavery” are terms of law, whereas other terms such as “contemporary forms of slavery” and “slavery like practic- es” are terms of art, which have no legal currency. As result, it is best to look at the substance of the relationship and simply ask: is there an exer- cise of any or all of the powers attaching to the right of ownership? Where one is asked to consider the distinction in law between, say, slavery and forced labour or slavery and one of the “practices similar to slavery” (that is, one of the servitudes set out in the 1956 Supplementary Convention: debt bondage, serfdom, servile marriage, or child exploita- tion), it may be best to start by looking at the more serious of the of- fences and ask whether any or all of the powers attaching to the right of ownership are exercised in a given situation; if so, then slavery is present. In a case where one is making a decision between slavery and forced labour and slavery is not present, then one would look to the International Labour Organization’s 1930 Forced Labour Convention, which establishes that “the term ‘forced or compulsory labour’ shall mean all work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”^8 If it can be demonstrated that in the case at hand a person has been compelled to work under a menace of a penalty and that they did not offer themselves voluntarily, then this will, in law, con- stitute forced labour. Likewise, in cases where the conventional servitudes found in the 1956 Supplementary Convention are at play – as between slavery and debt bondage, serfdom, servile marriage, or child exploitation – refer- ence would first be made to the more serious of the offences, and, if the circumstances do not meet the threshold of the exercise of any or all of the powers attaching to the right of ownership, reference would then be made to the definition of those conventional servitudes as set out at Article 1(a)–(d) of the 1956 Supplementary Convention so as to
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establishment of an International Criminal Court once more repro- duced in substance the 1926 definition of slavery in the Rome Statute. In its 1998 version, the text sets out a definition of “enslavement” under the heading of a crime against humanity. This definition 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.”^10 I say that the definition is “reproduced in substance” since the latter half of the sentence does not add anything new to the substance of the definition. Instead, this is a common legislative tool used to bring to the attention of judges, prosecutors, and so on, that they should pay par- ticular attention in cases of trafficking to those instances where women or children may be involved. Thus, in international law, the definition of slavery, as first set out in 1926, is very much the definition accepted by states. But the question remains: does the 1926 definition of slavery have contemporary relevance? As late as 2005, the question was answered in the negative by the European Court of Human Rights (ECtHR) in the Siliadin v France.^11 In this case, the ECtHR, in considering the fate of a Togolese girl who had been exploited as a domestic worker by her French hosts, deter- mined that both forced labour and servitude had transpired in breach of Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), but it failed to find a case of slavery.^12 By reference to the 1926 definition, the court stated that
this definition corresponds to the “classic” meaning of slavery as it was practiced for centuries. Although the applicant was, in the in- stant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B. exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object.”^13
It might be added here that the ECtHR has, by reference to its 2010 judgment in Rantsev v Cyprus and Russia , moved away from its 2005 position, recognizing, in the case of trafficking into Cyprus for the pur- poses of prostitution – which had left a young Russian woman dead
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- that it “considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership” although there was no question of de jure own- ership transpiring in this case.^14 A more thorough consideration of the definition of slavery has come about not via human rights courts but, rather, through criminal courts, where, I would argue, the process is much more rigorous as there are competing human rights at play: the prohibition against slavery versus the rights of the accused to know the charges laid. In this regard, the 2002 judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY), in the Prosecutor v Kunarac et al. case, is instructive.^15 The case dealt with the Serbian commanders of the ethnically cleansed town of Foca, Bosnia-Herzegovina, who, in maintaining a detention centre, used it as a means for regularly raping scores of Muslim women. With regard to this case, the Appeals Chamber accepted
the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as “chattel slavery,” has evolved to encompass various contempo- rary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership.^16
The Appeals Chamber did not recognize that the definition applied only to cases of ownership – that is de jure ownership – of a person since it stated that
The Appeals Chamber will however observe that the law does not know of a “right of ownership over a person.” Article 1(1) of the 1926 Slavery Convention speaks more guardedly “of a person over whom any or all of the powers attaching to the right of ownership are exer- cised.” That language is to be preferred.^17
A further case that shines much light on the definition of slavery is the 2008 Tang case, which was decided by the High Court of Australia. This case, which involved five Thai women who were sold and bonded into prostitution in Melbourne, allowed the highest court in the land
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to the right of ownership is exercised.” Turning first to consider the or- dinary meaning of the terms “status or condition.” The Oxford English Dictionary defines status, in the legal sense, as: “The legal standing or position of a person as determined by his membership of some class of persons legally enjoying certain rights or subject to certain limitations; condition in respect, e.g., of liberty or servitude, marriage or celibacy, infancy or majority.”^19 Inference as to the term “status” being used in the legal sense can be drawn from the travaux préparatoires where, for in- stance, it was noted that the “most important measure for the gradual abolition of slavery is that the status of slavery should no longer be recognised in the eye of the law.”^20 In the definition of slavery, legal status is juxtaposed by the conjunc- tion “or” with the term “condition,” which may be deemed a “mode of being, state, position, nature.” It is further described by the Oxford English Dictionary as a “characteristic, property, attribute, quality (of men or things).”^21 While “condition” has a legal meaning, this meaning is not relevant here since it speaks of a condition as a prerequisite for receiving, for instance, an inheritance on condition of the heir having reached the age of majority. 22 Thus, while “condition” in the legal sense is not applicable in the context of the definition, the juxtaposition of it with regard to legal “status” (that is, reading it “in context”), accompa- nied by its ordinary meaning as being an attribute of a person and a mode of being, speaks to slavery in factual terms. Such a reading of the phrase “status or condition,” it might be noted, was confirmed by the High Court of Australia in Tang. The Court noted that “status is a legal concept. Since the legal status of slavery did not exist in many parts of the world, and since it was intended that it would cease to exist every- where, the evident purpose of the reference to ‘condition’ was to cover slavery de facto as well as de jure .”^23 While it might be said that it is enough to base an understanding of the definition of slavery as being applicable in both de jure and de facto situations by reference to a reading of the phrase “status or condition,” I would argue that there are two more elements that speak to this under- standing of the definition, thus confirming it. Both deal with the phrase “powers attaching to the right of ownership” that is found in the defini- tion of slavery. With regard to the first element, it will be recalled that
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the Appeals Chamber of the ICTY noted that “the law does not know of a ‘right of ownership over a person,’” but, in fact, the definition speaks of the exercise of the “powers attaching to the right of ownership.” The phrase is a step removed from ownership. One does not need to own the thing but, instead, to exercise a power attaching to the right of own- ership. In the context of the definition of slavery, it does not speak of having a right of ownership over a person – a legal right of ownership
- but, rather, of exercising powers of ownership even when, for instance, such ownership might be legally impossible. Here, one might draw an analogy to a case of a kilogram of heroin. While a court will not deter- mine a “right of ownership” of the prescribed drug, for this is impossi- ble, it will ask instead: who exercised “a power attaching to the right of ownership,” such as possession, and sentence accordingly. In this man- ner, we see that the definition goes beyond the strict confines of the exercise of a right of ownership over person and, instead, speaks of the exercise of a power attaching to a right of ownership. Thus, the defini- tion goes beyond a legal right of ownership ( de jure ownership) and encompasses the exercise of such powers in de facto situations. The second element touching on the phrase “powers attaching to the right of ownership” turns on the difference in meaning found in the au- thentic French and English versions of the 1926 Slavery Convention; more specifically with regard to the phrase “powers attaching to,” which in the French text appears as “ les attributs .” Les attributs can be translated to English literally so that the phrase would now read “the attributes of the right of ownership.”^24 Since the object and purpose of the 1926 Slavery Convention, as noted in its preamble, is “securing the complete suppres- sion of slavery in all its forms,” the meaning of the term between “powers attaching to” and “ les attributs ” that best reconciles the texts would appear to be the one that allows for an expansive, rather than a restrictive, inter- pretation of the phrase. As a result, in speaking of the attributes of a right of ownership, the French text appears to go beyond the legal interpreta- tion and gives credence to the general and supplementary rules of treaty interpretation, which speak to the definition of slavery going beyond the legal and being applicable also in situations of de facto ownership. This interpretation of the definition of slavery, taking into consid- eration the rules of interpretation of the VCLT, produces the same
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sets out the reasoning of the court on the contemporary relevance of the definition of slavery and its reading of the exercise of “powers at- taching to the right of ownership” as being applicable in de facto as well as de jure situations in the following manner. He notes that in 1926 many of the states party to the Slavery Convention had already abolished the legal status of slavery and that the declared object of the parties was to bring about “the complete abo- lition of slavery in all its forms.” The court continues:
It would have been a pitiful effort towards the achievement of those ends to construct a Convention that dealt only with questions of legal status. The slave trade was not, and is not, something that could be suppressed merely by withdrawal of legal recognition of the incidents of slavery. It is one thing to withdraw legal recognition of slavery; it is another thing to suppress it. The Convention aimed to do both. In its application to the de facto condition, as distinct from the de jure status, of slavery, the definition was addressing the exercise over a person of powers of the kind that attached to the right of owner- ship when the legal status was possible; not necessarily all of those powers, but any or all of them ... On the evidence it was open to the jury to conclude that each of the complainants was made an object of purchase (although in the case of one of them the purchaser was not the respondent); that, for the duration of the contracts, the own- ers had a capacity to use the complainants and the complainants’ labour in a substantially unrestricted manner; and that the owners were entitled to the fruits of the complainants’ labour without com- mensurate compensation.^27
The court goes on to state that
it is important not to debase the currency of language, or to ba- nalise crimes against humanity, by giving slavery a meaning that ex- tends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of them- selves amount to slavery. The term “slave” is sometimes used in a
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metaphorical sense to describe victims of such conditions, but that sense is not of present relevance ... An employer normally has some degree of control over the movements, or work environment, of an employee. Furthermore, geographical and other circumstances may limit an employee’s freedom of movement.^28
While the Court would go on to consider the textual make-up of the wording of the Australian Criminal Code and the determination of its lower Court of Appeal, it followed on its previous pronouncement by concluding that
powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place.^29
While Hayne J concurs with the reasoning of Gleeson CJ, he consid- ers the notion of “ownership,” stating that it “must be read as conveying the ordinary English meaning that is captured by the expression “do- minion over” the subject matter. 30 Where ownership is a legal relation- ship, Hayne J relates, “an ‘owner’ has an aggregation of powers that are recognised in law as the powers permissibly exercised over the subject matter. It is a term that connotes at least an extensive aggregation of powers, perhaps the fullest and most complete aggregation that is pos- sible.”^31 Since ownership of a person is impossible in the Australian context, Hayne J states that “what the alleged offender has done must then be measured against a factual construct: the powers that an owner would have over a person if, contrary to the fact, the law recognised the right to own another person.” 32 In considering the powers attaching to a right of ownership, Hayne J sees in possession the power of dominion over a person; he thus uses ownership and possession as being synony- mous, stating that “possession, like ownership, refers to a state of affairs in which there is the complete subjection of that other by the first per- son.” He then continues, stating that
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the opening section of this chapter that considers the parameters of those powers attaching to the right of ownership, this section will take one further step back to consider the very foundation of the definition. This section considers the genesis of the definition of slavery as well as the reasons why it failed to take hold and have relevance throughout much of the twentieth century. The final point is worth emphasizing as throughout the twentieth century, the definition of slavery slipped fur- ther and further into obscurity so that, as the new millennium ap- proached, its applicability was near naught; only to be given new life at the dawn of the twenty-first century by the work of the research net- work that developed the Bellagio-Harvard Guidelines. The definition of slavery, and the Slavery Convention itself, was de- veloped within the context of a League of Nations that was a European colonialist club, seeking to end slavery beyond its membership while curbing the excesses of servile labour while leaving it intact within the colonies. The genesis of the 1926 Slavery Convention emerged out of the provisions of Articles 22 and 23 of the 1919 Covenant of the League of Nations, which dealt with the Mandate Territories that were trans- ferred from the vanquished to the victors of the First World War and, more specifically, those colonial possessions of Central Africa. 35 Article 22 states that among the responsibilities of the new mandate holders was “the prohibition of abuses such as the slave trade,” while under Article 23, the Covenant required the members of the League of Nations to “endeavour to secure and maintain fair and humane condi- tions of labour for men, women, and children” as well as granting “gen- eral supervision over the execution of agreements with regard to the traffic in women and children.” Action with regard to these provisions was first precipitated by a memorandum circulated by Sir Frederick Lugard, a British member of the Permanent Mandates Commission, who proposed that Ethiopia, an independent, non-member state of the League, be placed under a man- date for its inability to suppress the slave trade.^36 This led to a chain of events that not only saw Ethiopia join the League of Nations but also the establishment of an instrument suppressing the slave trade, slavery, and forced labour.^37 The League of Nations established a body of experts,
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the Temporary Slavery Commission, whose work in 1924 and 1925 would be the DNA of the legal provisions related to forced labour, slave trade, slavery, and the convention servitudes found in the 1956 Supplementary Convention, which emerged over the next thirty years. Where the 1926 Slavery Convention is concerned, while most of its provisions have been superseded by other obligations found in more recent treaties, what remains applicable are its definitions of both slav- ery and the slave trade. Where the slave trade is concerned, the conven- tion sets out the following definition:
The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or ex- changing him; all acts of disposal by sale or exchange of a slave ac- quired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.
With regard to the definition of slavery, it will be recalled that Article 1(1) of the Slavery Convention reads: “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership is exercised.” This definition, while it was considered by a drafting committee, found its final form through the pen of Robert Cecil, that is: Viscount Cecil of Chelwood. 38 Viscount Cecil, having considered feedback from states as to his proposed definition, reiter- ated his understanding of the definition of slavery as “the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things.”^39 At the prompt- ing of the Union of South Africa, Viscount Cecil made plain that unless a practice reached the threshold of the exercise of powers attaching to the right of ownership, it did not constitute slavery as defined by the 1926 Slavery Convention.^40 This point was brought home in 1936, when the League of Nations’ Committee of Experts on Slavery considered the issue of serfdom, em- phasizing that one must make a distinction between slavery as defined in the convention and other forms of exploitation:
