A Response to Anne Gallagher by Jean Allain

[Dr. Jean Allain is a Reader in Public International Law at the School of Law, Queen’s University Belfast and author of The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008) and “The Definition of Slavery in International Law” 52 Howard Law Journal 239 (2009)]

There is nothing like a ‘response’ piece to give readers a stark sense of the open schisms with regard to an issue of law. Anne Gallagher’s piece in the most recent edition of the Virginia Journal of International Law does just that, taking on James Hathaway’s overarching critique of the legal regime of human trafficking.  I would invite readers to consider both pieces, as they are well-written and researched, giving a sense of the meta-narrative of contemporary legal thought on human trafficking by two leading experts.  For my part, I wish to consider but one basis of the Gallagher’s critique of Hathaway’s piece: the definition of slavery in international law.
Gallagher takes issue with the definition of slavery being put forward by Hathaway as “‘any form of dealing with human beings leading to the forced exploitation of their labor’, including ‘the exercise of any or all of the powers attaching to the right of ownership over a person’”; stating that the first elements (re: “any form of dealing…their labor”) “remains unsupported in international law.”  I accept that conclusion, but it should be recognised that when Hathaway drafted his piece, he was not privy to the material on which Gallagher stakes her claim that the “expansionist interpretation, given wide currency through a series of UN reports, has now been rejected.”  That material is my 2008 The Slavery Conventions.

In April 2008, I was contacted by the Australian Human Rights and Equality Commission (HREOC), which was looking to intervene in a case, and asked if I might assist.  I provided them with a copy of the galley proofs of my book, as The Slavery Conventions, which had yet to be published.  In May, the online newspaper, The Australian stated that, “Brett Walker SC, the counsel for HREOC, quotes a book by a certain Monsieur Allain.”  Holding up the work in question, he says: ‘I understand I have the only copy in the country.’”   Published in June, the book is cited in the August 2008 case, before the Australian High Court, The Queen v. Tang which sets out for the first time in an authoritative manner that the definition of slavery in international law (re: ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’) applies in cases of both de jure but also de facto slavery.  It was in reading to The Queen v. Tang that I came across a citation for Hathaway’s piece.  As a result, Hathaway would not have been aware of The Slavery Conventions when drafting his piece.

I believe The Queen v. Tang delivered in August 2008 is a watershed for a legal consideration of slavery with the Hathaway and Gallagher pieces standing on either side of the divide.   Before August 2008, the most authoritative pronouncement on the definition of slavery in international law comes from the United Nations in the guise of the work of David Weissbrodt and Anti-Slavery International. It is this stream which Hathaway correctly follows. I might add here that I do not think Hathaway would be offended if I were to mention that I contacted him in November to congratulate him on his piece saying that it was one of the few works I had read which took the issue of slavery seriously.

And yet the Australian jurisprudence marks a shift in the understanding of slavery as defined by the 1926 Slavery Convention.  In 2007, the Court of Appeal of the Supreme Court of Victoria, Australia noted:

The understanding of the scope of the definition of slavery stated by Jean Allain is at odds with that of David Weissbrodt in his paper commissioned by the Office of the United Nations High Commissioner for Human Rights.  Weissbrodt concluded that the definition was intended to include the broader range of practices that had been addressed by the Temporary Slavery Commission of 1924, including debt bondage, serfdom, practices involving restrictions of liberty and personal control analogous to slavery, practices such as acquisition of women and girls in the guise of payment of dowry, and so forth.  It was not limited to chattel slavery, but required examination of the degree of restriction and control exercised over the person, rather than concentration on the criterion of ownership.

In that case, the Supreme Court of Victoria concluded that, “in final analysis, it is unnecessary to resolve the dispute between Allain and Weissbrodt.”  However, in August 2008, with The Queen v. Tang, the High Court of Australia did, in fact, resolve that dispute; using my research from the League of Nations Archives to demonstrate that the definition as set out the 1926 Slavery Convention has not been expanded to include lesser servitudes, but is to be read in such a manner as to include both situations of legal ownership of a person (which would bring to mind the Trans-Atlantic Slave Trade, but see the contemporary finding of chattel slavery in the 2008 Mani v. Niger case before the ECOWAS Community Court of Justice – and my case note in the April 2009 edition of American Journal of International Law); but also de facto slavery.  To understand what this distinctions means, consider the analogy to the drug dealer: he cannot make a claim before a judge against the theft of his heroin – he does not ‘own’ the heroin in law— but can still be found to exercises powers of ownership over his drugs, such as possession, if brought before a court of law.  In the same manner, a person may not – in law – own another human being, but she could exercise powers attaching to ownership – such as buying or selling a person in a de facto manner.

One must understand that where issues of slavery, human exploitation, and the law are concerned, there has been very little serious scholarship – both Hathaway and Gallagher – bring some much needed rigour to the area.  But much work still needs to be done and the field is evolving quickly.  For instance, the interchangeable use of the terms ‘practices similar to slavery’ and ‘slavery-like practice’ is – in law – wrong.  The first of these is a term of law, the ‘practices similar to slavery’ being those items set out in the 1956 Supplementary Convention as servitudes to be suppressed (i.e., debt bondage, serfdom, servile marriage and child exploitation); whereas ‘slavery-like practice’ is a term of art, coined at the height of the decolonisation process to apply to apartheid and colonialism but which never found its way into the corpus of international law.  In counter-distinction, the difference between ‘practices similar to slavery’ found in the 1956 Supplementary Convention and ‘servitude’ as found in international human rights instruments (see the ICCPR, the ECHR, the ACHR), should be understood as a false one; one brought on by the unwillingness of the negotiating States of the 1956 Convention to commit to ending servitude forthwith despite the Universal Declaration call to do exactly that (see my forthcoming “On the Curious Disappearance of Human Servitude from General International Law”, 11 Journal of the History of International Law 25 (2009)).  I expect the terrain of human exploitation in law to be re-drawn over the next few years in ways that it has not been throughout the twentieth century.

Hathaway’s consideration is state of the art at its time; while Gallagher’s critique, some six to eight months later, bringing into the equation an emerging narrative which takes slavery – in law – back to first principles and seeks to build an understanding of slavery in the shadow of the human right of an accused to know the charges against him. That narrative has yet to run its course and may challenge some of the elements of Gallagher’s own piece in the same way she challenges Hathaway’s work.  Beyond the Hathaway and Gallagher pieces, contemporary legal issues of slavery, trafficking and human exploitation have been left, on the whole, to a less than rigorous consideration of the law.  In so doing it raises the question of the regime of human rights as the best place to deal with such issues; as the twentieth century has demonstrated the failure to adequately deal with the prohibition against slavery as a human right.  Whereas the establishment of the International Criminal Court and the UN and European trafficking conventions, all products of the twenty-first century, have already done more within a criminal law paradigm to advance the jurisprudence and the agenda of anti-slavery and the fight against human exploitation than anything seen under the auspice of international human rights law.