The Weekend Reading List series at The Law Blog is curated and brought together by Anshuman Sahoo, the founding editor of The Law Blog and Director at Law Matters Centre for Research, Education, and Social Action (LaMCRESA).
On 25 September 1926, in Geneva, the League of Nations adopted the Slavery Convention. The Convention now has 99 states parties, and the UN is marking the centenary. It is usually remembered as the first treaty to make freedom from slavery something every state owed to everyone. That is true, but the treaty gets even more interesting once we look closely.
One interesting part is the very first Article itself. Slavery, it defines, is “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. The drafters did not describe cruelty, or chains, or a market in human beings. They rather reached for a private law concept, ownership, and defined the gravest of public wrongs through it. A century on, that definition still governs. The Rome Statute repeats it almost word for word, the High Court of Australia applied it in R v Tang in 2008, and the 2012 Bellagio-Harvard Guidelines codified how to read it.
So the first question for the weekend is a private law question. What are the powers attaching to ownership, and what does it mean to exercise them over a human being when no legal system any longer recognises title to one? Tony Honoré’s 1961 essay on ownership is the classic map of those powers. Jean Allain and Robin Hickey carry that map straight into Article 1.
The second question is about who the definition was for. The Convention speaks of territories under a party’s “sovereignty, jurisdiction, protection, suzerainty or tutelage”. That is the vocabulary of empire. Article 5 does not prohibit forced labour; it asks parties to prevent it from “developing into conditions analogous to slavery”. Christopher Gevers, writing from Durban, argues that this was no oversight. Anti-slavery became a badge of civilised whiteness, and colonial forced labour was refigured as acceptable so long as it was supervised. If he is right, the definition we still use was drawn partly to keep something outside it.
The third question is the reverse: what happens when the word is stretched too far. The ILO, Walk Free and the IOM estimated that 49.6 million people were in “modern slavery” on any given day in 2021. Janie Chuang argues that the umbrella term, and the recasting of forced labour as trafficking and trafficking as slavery, has hollowed out the law. Prabha Kotiswaran, starting from the Indian informal economy, asks what a labour-centred alternative would look like.
This week the Security Council heard AI company chiefs ask for narrow global bans on the worst uses of their technology. The 1926 Convention is the ancestor of every such prohibition, and its century of definitional trouble shows how much work a ban’s single sentence must do. I’ll leave this question of technology usage ban here, leaving the thread loose for discussions.
Indian readers will hear an echo throughout. In People’s Union for Democratic Rights v Union of India, Bhagwati J read “forced labour” in Article 23 to include labour extracted by economic compulsion and paid below the minimum wage. That judgement answered the second and third questions in one stroke: the definition must reach the informal worker, and it need not wait for chains. Whether he was right is what the weekend reading is about.
The readings
1. Tony Honoré, “Ownership”
A.M. Honoré, “Ownership“, in A.G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford University Press, 1961), pp. 107–147. Reprinted in Tony Honoré, Making Law Bind: Essays Legal and Philosophical (Clarendon Press, 1987).
Reading time: about two hours, 41 pages.
Honoré set out to describe what ownership means in a mature legal system and produced the list everyone has argued with since: the rights to possess, use, manage and take the income; the rights to the capital and to security; transmissibility and absence of term; the duty to prevent harm; liability to execution; and the owner’s residuary interest. Ownership, on this view, is a bundle whose contents vary between systems, not a single relation. Read it first because Article 1 makes sense only against a theory like this. Notice that Honoré wrote about things rather than persons, and that most of his incidents describe a relationship the law recognises. The puzzle the next reading takes up is how anyone can exercise those incidents when the law refuses to recognise the title.
2. Jean Allain and Robin Hickey, “Property and the Definition of Slavery”
Jean Allain and Robin Hickey, “Property and the Definition of Slavery“, International and Comparative Law Quarterly, vol. 61, no. 4 (2012), pp. 915–938.
Reading time: about one hour, 24 pages.
Allain, an international lawyer, and Hickey, a property theorist, argue that Article 1 has been read so loosely that it has become almost meaningless, and set out to recover its core. They take ownership seriously as a legal concept, drawing on the incidents analysis you have just read, and treat slavery as a question of fact: one person exercises the powers of an owner over another, whether or not any law would recognise ownership. Control tantamount to possession is the gateway, and the other powers follow. Critics come from two sides. Campaigners say it is too narrow, because it excludes much that they call slavery. Critical scholars say it is too formal, because it has nothing to say about who was permitted to exercise those powers over whom. The next reading presses the second objection hard.
3. Christopher Gevers, “Refiguring Slavery Through International Law”
Christopher Gevers, “Refiguring Slavery Through International Law: The 1926 Slavery Convention, the ‘Native Labor Code’ and Racial Capitalism”, Journal of International Economic Law, vol. 25, no. 2 (2022), pp. 312–333. DOI 10.1093/jiel/jgac024. Author’s open access copy available here.
Reading time: about ninety minutes, 22 dense pages.
Gevers argues that slavery was refigured twice through international law. First, from the late nineteenth century, international lawyers rewrote its history so that anti-slavery became a defining attribute of progressive white civilisation. Second, the 1926 Convention together with the ILO’s “native labour code” recast colonial forced labour as acceptable, even civilising, provided it was under white management. Read this straight after Allain and Hickey and the effect is unsettling: the definition they want to recover was, on Gevers’ telling, drafted with a carve-out already in mind. A fair rejoinder is that the definition has since been turned against its authors’ purposes, in Tang and elsewhere. Either way, the essay makes the recovery project political rather than merely doctrinal.
4. Janie A. Chuang, “Exploitation Creep and the Unmaking of Human Trafficking Law”
Janie A. Chuang, “Exploitation Creep and the Unmaking of Human Trafficking Law”, American Journal of International Law, vol. 108, no. 4 (2014), pp. 609–649. Open access version here.
Reading time: about two hours, 41 pages.
Chuang, at American University in Washington, describes how the United States promoted an ever-wider idea of trafficking through what she calls doctrinal and discursive conflation: forced labour became trafficking, and trafficking became slavery. The result, exploitation creep, pulls the anti-trafficking movement towards prosecutions and rescues and away from the labour and migration reforms that address why people are exploitable at all. Where Gevers shows the 1926 definition drawn too tightly around colonial labour, Chuang shows the modern vocabulary drawn too loosely around everything else, and both, she would say, serve the powerful. Responses in the same journal argued that the broader frame has done real good and that her development critique needed sharpening. The final reading takes up that challenge.
5. Prabha Kotiswaran, “Trafficking: A Development Approach”
Prabha Kotiswaran, “Trafficking: A Development Approach“, Current Legal Problems, vol. 72, no. 1 (2019), pp. 375–416. Open-access version (pre-print) available here.
Reading time: about two hours, 42 pages.
Kotiswaran accepts much of Chuang’s diagnosis and asks what should replace the carceral model. Her answer is built from India upwards: the expanding welfare functions of the postcolonial developmental state, labour law reimagined from the informal economy, and indigenous responses to extreme exploitation that anti-trafficking law tends to trample. She reads trafficking into the Sustainable Development Goals rather than the criminal code. The piece also closes the loop with Honoré. If the wrong of slavery is the exercise of ownership’s powers over a person, the remedy is to return to workers the powers over their labour and their exit that make ownership impossible.
If you only have an afternoon
Read Allain and Hickey, then Gevers. Together they take under three hours and contain the argument in miniature: a careful attempt to recover the meaning of a hundred-year-old sentence, then a reason to distrust the sentence itself. Honoré is background, Chuang and Kotiswaran the sequel. The question to carry into the week is this. The Convention defined slavery by borrowing ownership from private law. Was that a stroke of precision that has kept the concept from dissolving, or a category error that has let the law look away from unfreedom that never needed a title deed? Bhagwati J took a view in 1982; was he right?
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