Why is the established legal definition of slavery important? Well, historically, abolition of slavery was about legal abolition, about taking laws away which allowed for slavery. But once this legal abolition took place, slavery no longer existed. And there was this sense that this concept, having been tied up in legal ownership, was no longer applicable. So while the notion of slavery was dead, the term slavery itself then was up for grabs. And because of its visceral value, it was appropriated by other social ills. So most evidently with regards for instance to prostitution, which in the late 19th century led to this social panic around so-called white slave trade.
So the language of slavery was being used and appropriated by others, because slavery really didn’t exist. So even within the United Nations, ultimately under the banner of contemporary forms of slavery, you could consider slavery not only as prostitution, but also child pornography, children in armed conflict, child soldiers, removal of organs, incest, migrant workers, sex tourism, illegal adoption, early marriage, and even detained juveniles. And so slavery became all these things. And ultimately, if slavery meant everything, then it really meant nothing. And even today, we still suffer from this confusion of what this term slavery actually means. Is it trafficking? Is it forced labor? Is it bad working conditions? Is modern slavery somehow different than historical slavery?
Well, the legal definition helps us understand this. It’s important, because it is authoritative. It’s been created by states and endorsed by them, and it provides a common understanding to this phenomena, to ensure that in every country, when we’re talking about this thing called slavery, we’re using the same language. We’re speaking the same words, so that policymakers, the police, prosecutors, activists, human rights defenders, scholars, researchers, academics, all are speaking the same language. What is the legal definition of slavery, and how is it applicable today? The problem in defining slavery is that it’s so wound up in the idea of legal ownership of one person owning another that it’s difficult to see past this concept.
Yet, it’s easy for us today to recognize that torture, despite being abolished in law, continues to be practiced. Few today would say that torture doesn’t exist. Can we say the same for slavery? Having been abolished in law, it continues in practice. Well, the answer to that is in a word, yes. It exists today. Think of the Academy Award winning film, 12 Years a Slave, where the protagonist, Solomon Northup, was enslaved, but not legally so. He was in fact, though not in law, a slave.
The law which appears to be the biggest problem in trying to understand slavery today, that slavery is about ownership, is actually the means of getting beyond this impasse and providing us with an understanding of slavery today. This is so because back in 1926, when the League of Nations defined slavery, it effectively did it in such a manner as to be farsighted and to capture the lived experience of those who are enslaved today. Now, in law, words matter, so I will now take you through the legal definition of slavery. The internationally established definition of slavery reads, “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”
This definition was first established in 1926, under the League of Nations, in the 1926 Slavery Convention. That definition, however, was repeated in 1956, in the Supplementary Convention established by the United Nations, and was later in 1998 used as the definition of enslavement within the statute of the International Criminal Court. Let’s now turn to that first element, status, or condition. Status is about legal ownership, and condition is about de facto ownership. Historically, we talked about legal ownership, that somebody was legally owned. Today, we can talk about somebody being held in a condition of slavery. Let’s turn to legal precedent, where there is a pronouncement that tells us this distinction exists, as per the definition.
So in 2008, in the Tang case before the High Court of Australia, the Court said, “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 everywhere, the evident purpose of the reference to condition was to cover slavery de facto as well as de jure.” Let’s now turn to the second element, the powers attaching to the right of ownership. The Bellagio-Harvard guidelines help us understand what these powers are by reference back to understanding what, in fact, ownership is about, that ownership fundamentally is about possession.
Once you possess something, then you can do these other things, to use, to manage, to profit, to transfer, or to dispose. This is when we start to understand what slavery is about. Now, how can it be that in a context where ownership is illegal, that you can determine that someone owns something? Let me give you an example. We understand today that owning drugs is illegal, let’s say a kilo of heroin. So if I was to bring that to court in a dispute between me and another drug dealer, the judge wouldn’t ask, who controls, who owns this kilo of heroin? They would actually ask, who controls it, because neither of us in law can own a kilo of heroin.
So it’s about control, and so you’ve often heard it with regards to drug dealers, that it was about controlling the substance, rather than owning it. When we seek to apply this to a person, with regards to slavery, what we ask is, was that person possessed? And possession is about control. So we ask, in fact, was that person controlled in such a way that control looks like possession? If we find control tantamount to possession, then we say slavery exists. Now, because the 1926 definition speaks of ownership, it really is difficult to understand in a contemporary setting.
So in developing the 2012 Bellagio-Harvard guidelines, we seek to understand that definition and to set it out in a way that is more manageable today. So if you look to guideline 2, which speaks about the exercise of the powers attaching to the right of ownership, it reads, in cases of slavery, the exercise of those powers attaching to the right of ownership should be understood as constituting control over a person, in such a way as significantly depriving that person of his or her individual liberty, with the intent of exploitation through the use, management, profit, transfer, or disposal of that person. Usually, this exercise will be supported and obtained through the means, such as violence, deception, or coercion.
Let’s turn to one of those powers attaching to the right of ownership, to sell a person. Well, you would think that selling a person would automatically be slavery, but you can also talk about buying or selling a person in a metaphorical term. So here is for instance, a headline, “Football transfer rumor– Real Madrid may sell Gareth Bale to Manchester United for 110 million GBP.” Now, is this an example of slavery? I would say no. Let me now walk you through that process of understanding, which in this context looks like someone being bought, but in fact is not.
When you look to the guidelines, what it says is buying, selling, or otherwise transferring a person may provide evidence of slavery, but more is needed. Having established control tantamount to possession, then the act of buying, selling, or transferring of that person will be an act of slavery. So in this case, could Mr Bale decide not to go? Could he quit football? He could do many things, but he isn’t forced to do it, right? So there is this lack of control over the individual which would meet the threshold of slavery. Evidence of slavery may also be found in similar transactions, such as bartering, exchanging, or giving or receiving a person as a gift, where control tantamount to possession has been established.
And this is fundamental, right? It’s not only about managing a person or even buying a person. What you need more than that is this control tantamount to possession. That’s the fundamental element of slavery. Once you have that control tantamount to possession, then other things can flow from it. Now, let me give you another example of these powers attaching to the right of ownership, to manage a person. So today I find myself in Nottingham. I’ve been asked to come here. I’ve been managed. Does that mean that I’ve been enslaved? No. Right, you can manage a person, but that doesn’t necessarily mean that that person is a slave. What’s needed is more than that.
And so if we turn to the guideline, managing the use of a person may provide evidence of slavery– may provide. Having established control tantamount to possession, then the act of managing that person will be an act of slavery. Evidence of such management of the use of a person may include indirect management, such as a brothel owner delegating power to a day manager in a situation of slavery, in the context of sex work. How can one determine if a situation constitutes slavery or not? What were to happen, for instance, if you were to open a door and to find a person you thought might be enslaved? How would you decide if that person is in fact a slave?
Well, first, how does that person look? Does the person show signs of physical or psychological harm or violence? Are they malnourished? Are they unkempt? Are they withdrawn? Are they scared? Does the person look vulnerable? And also look around. Where did you find this person? What are their living conditions like? Are they hidden away somehow? Do conditions look livable? Does it look as though the person is being held? Are there any personal possessions about? And finally, what does the person say? What should you ask them? Well, is the person speaking to you, do they seem frightened? Can the person speak the local language?
Based on these facts, you can start to make an assessment as to the legal standard to apply, so as to determine what slavery is. So remember, slavery is not about legally owning somebody. It’s about control. In law, you would ask, is control tantamount to possession? So in other words, does that person have control over his or her life? Do they have the freedom to leave the situation? Do they no longer have a say in the most basic elements of their lives, where they go, what they do, who they speak to? You might ask about the means by which that control was established. Was it through violence or coercion?
But there are a myriad of ways in which control can be established, or can assist in establishing such control– taking away the passport, moving to a foreign location through marriage, through debt, through religion, through isolation, by threatening loved ones, blackmail, etc. So there are many ways in which this control can be established. So in seeking to determine if control meets the threshold of slavery, the definition actually provides guidance, because it also provides you with examples of how slavery manifests itself. Was the person bought or sold? Were they used, managed, profited from? Where they used as if they were disposable? Now, these do not necessarily mean that a person was in slavery– remember the example of the football player.
But they will point to control to assist in making such a determination. Ultimately, what is and isn’t slavery is actually a legal question. The legal definition and its interpretation insures that from the first sighting, to helping that victim and putting away the perpetrators, that everybody in this chain is talking about the same thing when they say, this is in fact– and in law– a case of slavery.