2.1 Defining Slavery in International Law
The first question posed here has proven to be one of the more difficult questions in debates on this topic: what, in law, constitutes slavery?
Some of the doyens of slavery studies have grappled with this question extensively, and a multitude of possible definitions have emerged.
For example, for Orlando Patterson, slavery could most adequately be defined as the “permanent, violent domination of natally alienated and generally dishonoured persons”.1 Another of those doyens, the late David Brion Davis, saw things more in terms of a spectrum (“one can imagine a spectrum of states of freedom and dependency or powerlessness, with various types of serfdom and peonage shading off into actual slavery”), whilst simultaneously recognising that within slavery systems, large differences existed in the amount of protections and rights a slave did (or did not) enjoy.2Likewise for many eighteenth century abolitionist, the question of defining slavery has proven to be an elusive task. Even Granville Sharp, counsel in the famous case of Somerset v. Stewart which we will discuss, struggled with defining the institution.3 Since the beginning of the nineteenth century, the international community had started with progressively restricting the Atlantic slave trade, before it turned to the institution of slavery itself.4
Although the European powers themselves abolished slavery in their empires in the nineteenth century, the international legal framework regarding slavery mostly took shape in the twentieth century. In particular, the Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery Convention 1926)5 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956 (Supplementary Convention 1956)6 have been used in past decades to define what slavery is, and more importantly, as some of the main instruments in the battle against slavery.
One must keep in mind, however, that besides these conventions, there is general agreement that the prohibition of slavery has reached the status of jus cogens within customary international law.7 Slavery itself is defined in Art. 1 of the Slavery Convention 1926, which states:| (a) | 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.8 |
The problematic aspect with this definition is that the exact meaning of “any or all of the powers attaching to the right of ownership” has never been properly defined in the travaux préparatoires of the Slavery Convention 1926.9 An interesting debate has ensued, which has led different scholars towards a 1953 Report by the Secretary-General of the United Nations to the Council on slavery, the slave trade and other forms of servitude.10 In this report, the Secretary-General drew a clear historical line from Roman times to the current era by concluding that what is meant with the powers attaching to the right of ownership is nothing more than the authority which a master had over his slave in Roman law, the so called dominica potestas.
Proceeding on this conclusion, the Secretary-General then described these powers as follows:
| 1. | the individual of servile status may be made the object of a purchase; | |
| 2. | the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction other than that which might be expressly provided by law; | |
| 3. | the products of labour of the individual of servile status become the property of the master without any compensation commensurate to the value of the labour; | |
| 4. | the ownership of the individual of servile status can be transferred to another person; | |
| 5. | the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it; | |
| 6. | the servile status is transmitted ipso facto to descendants of the individual having such status.11 |
Although other scholars have sometimes arrived at slightly different definitions, most recently through the 2012 Bellagio-Harvard Guidelines (which take the Slavery Convention 1926 as a starting point), the above characteristics are arguably a good benchmark to understand what exactly is meant with slavery.12
A clear definition is all the more important when taking into account that, during the long lifespan of slavery, the institution often existed besides other, sometimes similar ones. For our purposes, it is especially important to note the difference between slavery and serfdom, which permeated Medieval Europe.
Alas, the two slavery conventions have proven to be rather confusing when it comes to defining the difference between the institutions of slavery and serfdom. On the one hand, serfdom had been categorized as a form of slavery for the purposes of the Slavery Convention 1926.13 On the other hand, the Supplementary Convention 1956 then made a separate definition of serfdom, being:| (b) | Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status. |
Given the confusion created, the Supplementary Convention went on to clarify that each State Party should strive towards the complete abolition or abandonment of serfdom, whether or not it was already covered by the definition of slavery in the Slavery Convention 1926.14
The term slavery in this book, given the historical link, will correspond with the characteristics ascribed to it by the UN Secretary General in 1953, although these six characteristics are evidently present to differing degrees at different times. As concerns serfdom, the provided definition covers some forms of medieval serfdom but not others (in particular, medieval serfdom did not necessarily have to be linked to being bound to live and labour on land). Second, although there is clearly some overlap between slavery and serfdom within current international legal practise, given the timeframe of the discussion, we will treat both institutions as being separate. The main question of this book is about slavery on European soil in the Early Modern Era, not about serfdom. That being said, the two institutions do have similarities and could be found concurrently during some eras. Thus, a short account of the historiographical research on the evolution from slavery to serfdom in medieval Europe will be discussed later in this chapter, so as to clarify the difference between medieval slavery and serfdom.