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Anti-Slavery Courts and the Dawn of International Human Rights Law

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Anti-Slavery Courts and the Dawn of International Human Rights Law Anti-Slavery Courts and the Dawn of International Human Rights Law Jenny S. Martinez* forthcoming 117 YALE L.J. (fall 2007) * Associate Professor, Stanford Law School. Electronic copy available at: http://ssrn.com/abstract=984077 Anti-Slavery Courts and the Dawn of International Human Rights Law Abstract Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these anti-slavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis and applied international law. They were explicitly aimed at promoting humanitarian objectives. Over the lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every four or five ships involved in the trans-Atlantic slave trade. These international anti-slavery courts have been given scant attention by historians, and have been almost completely ignored by legal scholars. Most legal scholars view international courts and international human rights law as largely a post-World War II phenomenon, with the Nuremberg trials of the Nazi war criminals as the seminal moment in the turn to international law as a mechanism for protecting individual rights. But in fact, contrary to the conventional wisdom, the nineteenth century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features. In addition to being of intrinsic historical interest, the story of the anti-slavery courts has important implications for contemporary issues in international law. The history of the anti-slavery courts reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Moreover, the anti-slavery movement’s use of international law and legal institutions as part of a broader social, political and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights. Electronic copy available at: http://ssrn.com/abstract=984077 Anti-Slavery Courts DRAFT April 2, 2007 – Please do not circulate or cite without author’s permission 3 Table of Contents INTRODUCTION ........................................................................................................................................ 4 I. ORIGINS OF THE ANTI-SLAVERY COURTS............................................................................... 8 A. THE RISE OF BRITISH ABOLITIONISM................................................................................................. 9 B. ABOLITIONISM AND BRITISH FOREIGN POLICY, 1807-1814: UNILATERALISM ................................. 16 C. BRITISH FOREIGN POLICY AT THE END OF THE NAPOLEONIC WARS:ANETWORK OF TREATIES ... 22 II. THE COURTS OF MIXED COMMISSION FOR THE ABOLITION OF THE SLAVE TRADE........................................................................................................................................................ 33 A. OVERVIEW OF COURT OPERATIONS................................................................................................. 33 B. THE COURTS IN OPERATION: IMPACT AND LIMITATIONS ................................................................ 47 1. Impact: Volume of Cases............................................................................................................. 47 2. Limitation: Non-participation..................................................................................................... 59 3. Limitation: Other Loopholes....................................................................................................... 66 4. Limitation: Reluctant Treaty Partners ........................................................................................ 71 5. Limitation: Faltering Domestic Support ..................................................................................... 76 C. FROM CRISIS TO SUCCESS:THE FINAL ABOLITION OF THE SLAVE TRADE ....................................... 78 1. Portugal ...................................................................................................................................... 78 2. Brazil........................................................................................................................................... 81 3. Spain, Cuba – and the United States........................................................................................... 84 III. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL COURTS: RETHINKING THEIR ORIGINS AND FUTURE................................................................................. 89 Electronic copy available at: http://ssrn.com/abstract=984077 Anti-Slavery Courts DRAFT April 2, 2007 – Please do not circulate or cite without author’s permission 4 Introduction Almost exactly two centuries ago, in March 1807, both the United States and Great Britain passed landmark legislation prohibiting the slave trade. The anniversary of this event has been marked with fanfare in both countries.1 But these celebrations mask the fact that the trans-Atlantic slave trade continued for another sixty years before it was finally suppressed. This Article is about those sixty years, and the surprising and forgotten role that international law and international courts played in the extinction of the slave trade. Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade.2 Though all but forgotten today, these anti- slavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis and applied international law. They were explicitly aimed at promoting humanitarian objectives. Though there were only a few years in which they were extremely active, over the 1 See Robert Barr, In Liverpool, abolition’s bicentenary revives the memory of slaves, USA TODAY (March 18, 2007). 2 Some of the treaties referred to them as “Mixed Courts of Justice,” while others referred to them as “Mixed Commissions.” Compare Treaty between His Britannic Majesty and His Majesty the King of the Netherlands, for preventing their Subjects from engaging in any Traffic in Slaves art. VII (May 4, 1818) [hereinafter Anglo-Dutch Treaty of 1818] (“Mixed Courts of Justice”), with Additional Convention to the Treaty of the 22 January 1815 Between His Britannic Majesty and His Most Faithful Majesty, for the Purpose of preventing their Subjects from engaging in any illicit Traffic in Slaves art. VIII (July 28, 1817) [hereinafter Anglo-Portuguese Treaty of 1817] (“Mixed Commissions”). On occasion, they are referred to in various records as the “Courts of Mixed Commission.” Because the procedures provided for by the various treaties are basically identical, this article uses the terms “courts” and commissions” interchangeably. The records of the commissions are housed in the Public Records Office (now known as the U.K. National Archives) in London. F.O. 312 (Cape Town); F.O. 313 (Havana); F.O. 314 (Spanish Town); F.O. 315 (Sierra Leone); F.O. 128, 129, 131 (Rio de Janeiro); copies of cited materials are on file with the author. In addition, much of the correspondence between the British commissioners and the Foreign Office, as well as diplomatic correspondence between the British government and the governments of other nations related to the treaties, is reproduced in the annual volumes of British Foreign & State Papers [hereinafter BFSP] and the slave trade series of the Irish University Press British Parliamentary Papers [hereinafter BPP]. Anti-Slavery Courts DRAFT April 2, 2007 – Please do not circulate or cite without author’s permission 5 lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels.3 During their peak years of operation, the courts heard cases that may have involved as many as one out of every four or five ships involved in the transatlantic slave trade.4 These international anti-slavery courts have been given scant attention by historians,5 and have been almost completely ignored by legal scholars.6 To be sure, the cases they adjudicated represented only a fraction of the trans-Atlantic slave trade from West Africa, and they left untouched the East African slave trade. Social, economic, political and military factors created an environment amenable to the formation of the courts, and it is difficult to untangle the causal role played by these factors in the ultimate global abolition of the slave trade and then slavery itself. But an international legal institution that had a direct and tangible impact on 80,000 human lives is far more than a footnote in the history of international law. Modern international courts – about which tens of thousands of scholarly pages have been spilled – measure their successes on a much smaller scale. 3 See Leslie Bethell, The Mixed Commission for the
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