Is employment a modern form of slavery?


Jean Allain

To person

Ph.D., born 1965; Professor of Public International Law at the School of Law at Queen’s University Belfast (QUB) and at the Center for Human Rights at the University of Pretoria; QUB, 27–30 University Square, Belfast BT7 1NN, Northern Ireland / UK. [email protected]

Enslavement has always been a facet of the human condition. Modern slavery, however, lacks something that has often been considered a fundamental element of slavery: ownership (ownership). In order to understand why and how slavery persists today, it is worth looking at the international efforts to combat it, noting that the focus has long been on the legal Abolition lay. Today the challenge is different, as slavery is illegal, but in fact still exists. How can that be? Let's look at torture: few would argue that it actually no longer exists because of the legal prohibition. Similarly, we should understand that slavery persists despite its worldwide legal ostracism.

Slavery was initially a by-product of wars: instead of executing prisoners of war, Roman law made it possible for them to be enslaved. For much of history, slavery was essentially limited to the possession of house or field slaves, who seldom exceeded a few dozen in number. This changed with the European conquest of the "New World" and the industrialization of slavery through the plantation system in the Americas. As this system grew in importance, and on the basis of the Atlantic trade with Africans, slavery was now rapidly being racialized. It is estimated that between 1501 and 1866 about 12.5 million people were displaced from Africa; almost 2 million died at sea on the "middle passage", the rest reached the western hemisphere. [1]

Legal abolition

Discomfort with slavery first arose in the 18th century; this would soon seize numerous European intellectuals, led by Charles-Louis de Montesquieu. Nevertheless, it was not until the Congress of Vienna in 1815 that the major European powers declared their "wish" to "put an end to the scourge which for so long has plunged Africa into disaster, damaged the image of Europe and burdened all of humanity". [2] Despite these noble words, the powers that be were unwilling to sign an international agreement banning the slave trade. This was because some countries viewed the Royal Navy's growing eagerness to fight the slave trade at sea as merely a humanitarian mask intended to obscure British efforts to control sea routes. While the United Kingdom actually spent large parts of the 19th century in vain trying to obtain appropriate control rights through an international agreement, the British succeeded in ending the slave trade across the Atlantic by a network of bilateral agreements by 1890. [3] The final declaration of the Brussels Conference that year confirmed the abolition of the Atlantic slave trade and shifted the attention of opponents of slavery to the Indian Ocean area. The arbitration award in the so-called flag case of Muscat (Muscat Dhows Case) of 1905 finally put an end to the global slave trade at sea. [4]

After successfully combating the slave trade, the abolitionists turned to slavery themselves and in 1926 reached the so-called Convention on Slavery in the League of Nations. This convention was remarkable for two reasons: Firstbecause slavery was not completely but only partially abolished, for the member states merely agreed to "work increasingly and as soon as possible towards the complete abolition of slavery in all its forms" (Art. 2). Secondly: Since this treaty was drawn up in the heyday of European colonialism, it recognized the right to use forced labor in the colonies, but tried to ensure "by taking appropriate measures to prevent forced labor or the obligation to work in slavery" (Art . 5). Slavery per se was defined as follows: "Slavery is the condition or position of a person over which the rights associated with property rights or some of them are exercised." [5] More on this later.

Lost years

From the 1930s onwards, international efforts to abolish slavery and other forms of exploitation lost their purposefulness. After the fight for the abolition of slavery - or better: the fight for the repeal of laws that allowed slavery - was won, there was a disturbing trend to label various social grievances as "slavery" in order to mobilize public opinion .

The beginning of this trend was marked by a report from an international commission from 1930 that was supposed to investigate whether there was slavery on Liberia's rubber plantations. After finding none, the commission was "convinced that the 'definition" of slavery was not so important "and wanted to" let the facts speak for themselves as well as classify themselves ". [6] The definition from the Slavery Convention of 1926 was simply ignored; instead, "slavery" was seen as a generic term that also stands for less strong forms of serfdom such as debt bondage and forced labor. Since forced labor was indeed widespread in Liberia, the commission finally recognized slavery, which forced the resignation of both the President and the Vice-President of the Republic of Liberia.

Until the year 2000, the word "slavery" itself was not used by the United Nations according to the legal definition, but rather as a typology encompassing "various forms of slavery": bondage (serfdom), Forced labor (forced labor), Debt bondage (debt bondage), Exploitation of migrant workers (exploitation of migrant workers), Human trafficking (trafficking), Prostitution (prostitution), Forced marriage and the sale of brides (forced marriage and the sale of wives) as well as child labor and serfdom of children (child labor and child servitude). [7] The United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956 did not improve the effectiveness of anti-slavery measures. In the last legs of colonialism, the western states tried to enforce a legal instrument that would tackle "indigenous practices" in the colonies. Four types of serfdom, originally identified in the 1920s, made up the essence of the Convention; some of them should be banned with immediate effect. However, the negotiating process was derelict as the Soviet Union insisted that certain conventional forms of serfdom, namely bondage, bondage, slavery-like marriage and pseudo-adoptions should not be abolished immediately but "gradually and as soon as possible." However, since the Universal Declaration of Human Rights of 1948 already saw the abolition of serfdom (servitude), the Soviet Union used its diplomatic skills to remove the term "serfdom" from the document and replace it with a new one, namely "slavery-like practices" (practices similar to slavery).

All of this resulted in the area of ​​law dealing with slavery, servitude and forced labor becoming inoperable by the end of the 20th century. Beyond rhetoric, slavery, in a sense, no longer existed. Yet these very terms - slavery, serfdom and forced labor - found their way into human rights treaties in the second half of the 20th century, both at the UN level and in African, European and inter-American regional human rights systems. As was to be expected, these terms were formally anchored in the law, but were deemed not to be applicable.