The Law and Slavery The Law and Slavery Prohibiting Human Exploitation By Jean Allain LEIDEN | BOSTON Also published by Brill Nijhoff: Jean Allian, Slavery in International Law, 2013 Jean Allian, The Slavery Conventions, 2008 Cover illustration: Image on the front cover produced for Anti-Slavery International by Saachi & Saachi; © Anti-Slavery International. Image used with permission. Library of Congress Cataloging-in-Publication Data Allain, Jean, 1965- author. [Essays. Selections] The law and slavery prohibiting human exploitation / by Jean Allain. pages cm Includes bibliographical references and index. ISBN 978-90-04-27988-9 (hardback : alk. paper) 1. Slavery—Law and legislation. 2. Forced labor (International law) I. Title. K3267.A945 2015 342.08’7—dc23 2015010269 This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. 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For Gina Bekker ∵ Contents Preface x Acknowledgements xiv Introduction 1 Part 1 The Evolution of Abolition 1 What We Know Today: A Contemporary Understanding of the Atlantic Slave Trade 37 2 The Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade 46 3 Fydor Martens and the Question of Slavery at the 1890 Brussels Conference 101 4 Slavery and the League of Nations: Ethiopia as a Civilised Nation 121 5 The International Legal Regime of Slavery and Human Exploitation and Its Obfuscation by the Term of Art: ‘Slavery-Like Practice’ 159 Part 2 Challenging the Status Quo 6 A Review of Understanding Global Slavery: A Reader by Kevin Bales 197 7 A Review of Trafficking in Human Beings: Modern Slavery by Silvia Scarpa 202 8 A Case Note of Hadijatou Mani Koraou v. Republic of Niger 209 9 A Case Note of Rantsev v. Cyprus and Russia 217 10 Immanent Critique: International Law and the Dubious Case-Law on Slavery 230 viii Contents 11 A Review of The Slave Trade and the Origins of International Human Rights Law by Jenny S. Martinez 251 12 Review of Colonialism, Slavery, Reparations and Trade: Remedying the Past? edited by Fernne Brennan and John Packer 259 13 No Effective Trafficking Definition Exists: Domestic Implementation of the Palermo Protocol 265 Part 3 Servitude and Forced Labour 14 On the Curious Disappearance of Human Servitude from General International Law 297 15 Sham Adoption: The dna of a Conventional Servitude 325 16 Exploitation and Labour in International Law 345 Part 4 Slavery 17 A Legal Consideration ‘Slavery’ in Light of the Travaux Préparatoires of the 1926 Convention 399 18 The Definition of ‘Slavery’ in General International Law and the Crime of Enslavement within the Rome Statute 419 19 Case Note of The Queen v. Tang 453 20 When Forced Marriage is Slavery 466 21 Property Law and the Definition of Slavery – Jean Allain and Robin Hickey 475 22 Slavery and its Definition – Jean Allain and Kevin Bales 502 <UN> Contents ix Appendices Appendix 1: The Slavery Convention 513 Appendix 2: The Forced Labour Convention 520 Appendix 3: The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 532 Appendix 4: The Abolition of Forced Labour Convention 539 Appendix 5: 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime 543 Appendix 6: Bellagio-Harvard Guidelines on the Legal Parameters of Slavery 555 Appendix 7: The Protocol to the Forced Labour Convention, 1930 564 The Queen v. Tang 570 Index 636 <UN> Preface When I first considered the law of anti-slavery there was very little of substance written. That is both a bold and unnerving statement, as few would argue that the prohibition against slavery is a fundamental human rights. And yet, the historical record bears this out: I would invite anybody to find an academic piece written prior to 2006 which makes a substantive point of international law regarding human exploitation whether it be forced labour, servitude, or slavery. If nothing else, in setting out to consider human exploitation, I had a vision of what I sought to achieve. In October 2005, at a conference in Liverpool on the Transatlantic Slavery held at its Maritime Museum, I had the following to say: The Paper I will be presenting today is the first volley of what I expect to be a treatise entitled Slavery in International Law.1 Over the last three years I have immersed myself in historical studies of the various tenets of the rise and fall of the slave trade both occidental and oriental. The task I set myself was rather ambitious – to get a grip on the histories of the European maritime Powers of the sixteenth through the nineteenth centuries, the birth and development the States of the New World, and the interaction between representatives of these countries and the local elite in Africa. In so doing, I had hoped to grasp the fundamentals of the rise and fall of slavery so as to ground my future research of the legal parameters of slavery as it exists today in general international law, the law of the sea, international human rights law, humanitarian law, labour law, refugee law, and international criminal law. Before proceeding to speak about the content of my Paper I wish to pay my respects and to publicly honour those historians who have, over the last thirty years or more, spent their time in archives here in the United Kingdom and throughout the world so as to bring to life the issue of the international slave trade and save it from what George Orwell called the ‘memory hole’. I have been throughout my life a keen student of history, having taken many a course during my first degree in Canadian. Though I have moved away from the discipline, what continues to intrigue me is the many varied discussions about historiography and what it means to write ‘history’. I have found, and, in many ways, what has led me to focus on slavery in international law, has been the revolution 1 See Jean Allain, Slavery in International Law: Of Human Exploitation and Slavery, 2013. Preface xi which has transpired within the discipline of History where issues of slavery and the trade are concerned. The rich vein of scholarship which has transpired, the dedication which has manifested itself in, for instance, the compilation of The Trans-Atlantic Slave Trade: A Database [now http://www.slavevoyages.org], is testimony to what can only be described as the most creative, insightful, and far-reaching, research that has trans- pired in the discipline of History over the last thirty years. As an outsider, I wish to express my debt of gratitude to those of you who have dedicate your life’s work to synthesizing primary research into historical works. You have paved the way for those of us, like me, who wish to take on research in our own disciplines and who must, by neces- sity, turn to your studies. In my discipline, scholarship is based on a meld- ing together of law and fact. The law and its interpretation, however, are only as strong as the underlying facts which we seek to apply to them. If our understanding of the facts does not mirror the situation which has transpired, then our application of the relevant legal norms lacks a proper foundation and ultimately raises questions of scholarship not only in regard to the factual elements of our work, but our overall reputation both with regard to the facts and the law. Being rather suspicious of claims of righteousness attached to domi- nance, I would never have embarked on a study of slavery had the discourse not left the colonial comforts of, say, W.E.H. Lecky who painted British abolition “as among the three or four perfectly virtuous pages comprised in this history of nations.”2 It is clear that in the last thirty years; the discourse is much more nuanced, having originally been challenged by Eric Williams’ 1944 work Capitalism and Slavery, which for a period of time became the orthodoxy, and its having been displaced, though not completely discredited, where motivations of the United Kingdom are concerned in its move to suppress the international slave trade.3 Having read much around the abolition of the slave trade, I continued to con- sider the evolution of the anti-slavery regime as it developed in international law through the Nineteenth and into the Twentieth Century. That evolution is chronicled in these pages through the publication of a piece on the British 2 See Roger Anstey, The Atlantic Slave Trade and British Abolition 1760–1810, 1975, p. xx; where he quotes W.E.H. Lecky, A History of European Morals, 1884. 3 Jean Allain, “Rough Seas: The Establishment of a Legal Regime to Abolish the International Slave Trade,” Liverpool and Transatlantic Slavery, October 2005.