LAW2043 Contemporary Issues in Property Law Coursework Assessment First-Class Answer

Submitted by: Yusur Dalloul


Question: Does Slavery Exist Today?

The Atlantic slave trade began in the late 1400’s, when African slavery had existed for several years in different conducts. Slavery never physically existed in Britain. Britain played a central part in representing slave-owners, while being distant from the reality of places such as Southern America. The slave trade abolition in 1807 did not terminate Britain’s connection with slavery, where slavery still existed within Britain and throughout the world. Most slave-ownership in Britain was progressed directly by inheritance, marriage settlements, and indirectly through bequests.[1] Following 1807, slavery appeared to have increasingly spread to places of Britain by direct slave-ownership or indirect financial dependence on the slave economy. After the 1807 abolition, slavery did still exist, but not in the chattel slavery form.[2] A significant case is the Zong Case, where a slave-ship captain drowned slaves, while the remaining committed suicide, out of fear. The case raised further importance informing the British the slavery legal definition as chattel property.[3]

The socio-historical slavery definition by Orlando Patterson, who reforms it’s definition in his writings over years, states ‘slavery is the permanent, violent, and personal domination of alienated and dishonored persons.’[4] Permanence does not conflict with the possible release from the slavery state. Similarly, to an individual abandoning his property, there is no obligation on the slave owner to confine his slaves forever. The slave becomes socially dead, becoming alienated from relationships with family and friends, which shapes an important part of an individual’s identity. The slave is also dishonored. No matter the intelligence the slave has, the slave’s servile circumstances is the root and result of indignity and humiliation.

By Patterson’s definition, an individual would have expected Patterson to depend on the ownership ideas and property giving significant support to the slavery circumstances as he lays it. Patterson objects slavery means property. The essence of Patterson’s objection to the property-slavery equation is:[5] All legal systems acknowledge all individuals are capable of being exposed to claims or right vis-à-vis others, with regards to their rights to objects and regards of their rights to each other. The claims a person has over his wife, his employee, his laptop, as ‘property’ claims, ‘ownership’ rights, is a matter of how affairs are done. Slaves are never actually treated as non-persons, tangible items such as cattle. However, this argues just because animals are utilized for our motives as they are regarded as an individual’s spiritual or natural inferiors but there are constraints on animal treatment. Animals can suffer whether they have a human-like cognitive characteristic or not. Animals can be used since they differ from humans, as long as they are treated “humanely” and are not left with “unnecessary suffering”. Animals must be utilized “gently”, and this moral obligation is owed to animals does not only cover animals but also humans.[6] All slaves are treated as humans, but have their standing degraded. The claims over an individual, and the claims individuals have, forming the relationship foundation of the slave owner and slave. The important factor about property and slavery is not that the slave is an ‘object’ of property, every individual is an object if exposed to the rightful claims of others, the slave is not the property subject, not having claims over anything at all, but that the slave has certain limited claims against his master.[7]

Slavery is supposedly eliminated across the world, therefore, we question what forms slavery in illegal and irregular circumstances.[8] Patterson suggests what differentiates slavery as it exists in both ancient and modern cultures was its similarity at every place in every time. The slave has no social recognition outside his master’s, alienated from his rights and birth claims, known as a socially dead person.[9] As there is no definite understanding to the ‘slavery’ meaning in modern international law, property law perspectives are applied to ownership concepts brought about by Article 1,[10] how it remains relevant, and is applied in modern day cases slavery.[11] During the 200th British slave trade abolition anniversary in their colonies, the U.K. is reminded slavery still exists to this day. Tony Blair stated we need to acknowledge ‘the unspeakable cruelty persists in modern day slavery’.[12] In the 1990’s, the United Nations’ Working Group on Contemporary Slavery Forms took into account the upcoming matters falling under slavery modern forms: child pornography; children in armed conflict; child soldiers; organs removal; incest; migrant workers; sex tourism; illegal adoption; early marriages; detained juveniles.[13] Article 4 of the Universal Declaration of Human Rights holds ‘No one shall be held in slavery or servitude: slavery and the slave trade shall be prohibited in all their forms’.[14] The Special Rapporteur on contemporary slavery forms states that modern slavery exists in hidden populations exercising illegal work. It also states that slavery happens in secluded locations. Most slaves come from poor, vulnerable, society circumstances.[15] Rape, a sexual assault is equal to slavery under legal justifications, argued Jane Kim. Rape victims are exposed to degradation and domination from another individual the time their assault occurs.[16] Kim also states there are lesser violence forms constituting as slavery, for example: child abuse; domestic violence; forced prostitution; prohibited abortions; mail-order brides; sexual harassment in housing. These modern slavery forms can be seen in the following cases. In the Kunarac case during 2003, this issue consisted detention centers in the Foca regions, Bosnia, and Herzegovina. Women in Kunarac were enslaved in rape camps, where the established slavery concept, defined in the 1926 convention covered modern slavery types which are founded on carrying out any of the powers connected to the ownership right.[17] The International Criminal Tribunal Appeals Chamber for the former Yugoslavia stated that ‘the law does not know of an “ownership right over a person”. In Kunarac, the Evidence statement states, “what the evidence shows, Muslim women and girls, mothers and daughters, robbed of the last vestiges of human dignity, women and girls treated like chattels, property pieces at the arbitrary disposal of the Serb occupation forces.”[18] Article 1(1) of the 1926 Slavery Convention discusses more cautiously “of a person over whom any or all of the powers attaching to the ownership right are carried out”. That language is more favored.[19] In the Siliadin case, which concerned a Togolese girl, who was constrained in slavery as a live-in domestic worker in Paris. Even though the claimant’s personal liberty was disadvantaged, the evidence does not imply she was confined, the perpetrators carried out a legal ownership right over her, therefore diminishing her to the ranking of an “object”.[20]

However, globalization plays a role in increasing human rights law such as in the property law field and contemporary slavery in international human rights law. The term ‘globalisation’ refers to a collection of many-sided, uneven, usually conflicting economic, political, social and cultural affairs.[21] The legal system prohibiting slavery exists in public international law, not human rights law. However, the 1948 Universal Declaration of Human Rights, a non-binding mechanism, where Article 4 holds: ‘No one shall be held in slavery or servitude; slavery and the trade shall be prohibited in all their forms.’[22] However, there has been present-day international criminal law instruments, such as International Criminal Court 1998 Statute and the 2000 Palermo Protocol associated to trafficking and the 2005 European Convention on Action against the Trafficking in Human Beings. These instruments assisted in lifting the problem of contemporary slavery forms as human trafficking onto the international field and causing a need to examine what constitutes slavery.[23] In the 2010 Rantsev v Cyprus and Russia case,[24] which consisted a young woman’s death who was unwillingly in the sex tourism industry in Cyprus. In spite of Article 4 being silent with respect to trafficking individuals, the court in Rantsev insisted it is ‘unnecessary to identify whether the treatment about which the applicant raises includes “slavery”, “servitude” or “involuntary and mandatory labor”. Alternatively, the Court combined trafficking with slavery.[25] Although the Court duplicated the trafficking definition in individuals, it added the slavery element to it at the expense of forms of misuse stated in that trafficking definition. The Court held it acknowledges the modern trafficking forms in individuals, by the exploitation use, founded on exercising powers connected to the ownership right. In the 2013 CN v The United Kingdom case,[26] concerned a Ugandan working in the U.K. in the domestic servitude circumstances. The European Court deals with positive obligations concerning slavery, servitude, and forced labor. The Court established obligations held in the Siliadin case,[27] where ‘Article 4 entails a positive obligation on member states to penalize and prosecute effectively any act towards maintaining a person in a slavery situation, servitude, or forced labor’. The Court also raised Article 4 needs the state to take operational actions to protect victims, or potential victims where the State authorities had knowledge, or ought to have been informed a person had been, or was at real and immediate risk of being exposed to.[28]

The United Kingdom has introduced legislation, the Modern Slavery Act 2015 solidified contemporary slavery and human trafficking practices, introducing preventive measures such as trafficking reparation orders, encouraging the courts to utilize seized assets to repay victims and prevention orders to protect those presenting a risk of executing offences. The Modern Slavery Act states calls for transparency in supply chains, where a business which has turnover of more than 36 million, supplies goods and services, and executes the business or part of the business in parts of the United Kingdom, to publish an annual slavery and human rights trafficking statement.[29]

To solve this interpretative stalemate on what modern slavery is, expert Kevin Bales provides prescriptive foundations for contemporary slavery. Bales’ comprehension of slavery allows individuals to recognize the sociological slavery aspects. Bales states slavery has been established in many ways, but three necessary standards exist to identify a slave. Firstly, if complete control exists on one individual by another, using violence. This can be psychological and physical. Secondly, hard labour with no pay. Thirdly, slaveholders gaining profits out of the slaves.[30]

Claude Welch in ‘Defining Contemporary Forms of Slavery: Updating a Venerable NGO’ contends the 1926 convention fails to acknowledge modern slavery types, concluding the fight to abolish all types of slavery persists.[31] Bales’ contemporary slavery definition does not follow Welch’s argument the 1926 definition is unsuccessful in acknowledging modern slavery forms. However, four vital cases welcoming the 1926 definition has come to show it has contemporary relevance. Since the Kunarac case, the European Court of Human Rights held the Yugoslav Tribunal had ‘ended the traditional idea of “slavery”, therefore accepting modern slavery types founded on the employment of any or all of the powers attaching to the ownership right. The Mani Karaoau case in 2008 which contains the slavery form where childhood female domination and onwards for marriage purposes is one.[32] This leaves the idea that the slavery definition only concerned rightful or “de jure” circumstances, where “trafficking in human beings, with the exploitation aim, is founded on carrying out powers attaching to the ownership right.” Although the European Court of Human Rights acknowledges this, the most meticulous acknowledgement of the 1926 definition embracing contemporary slavery is in the Australia High Court decision, the Tang case. Tang recalls the definition speaks of ‘status or a person’s condition over whom any or all of the powers attaching to the ownership right are exercised’, where ‘status’ takes into effect the de jure ownership, and ‘condition’ has to do with de facto slavery.[33] The Australian Criminal Code Act 1995 places ‘a person, whether within or outside Australia, intentionally possesses a slave or exercises over a slave any of the other powers attaching to the ownership right’ is guilty of an offence.[34] The Tang case gave a further logical slavery understanding in the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery. In Guideline 2: ‘control over a person in such a way as to significantly deprive that person of their individual liberty, with the intent of exploitation through the use of, management, profit, transfer or disposal of that person.’ When trying to understand contemporary slavery, de facto slavery cases, it must be acknowledged enslavement is about control. When control is established over an individual, the chain to be found is between possession in property law and control in circumstances of modern slavery.

Guideline 4 of the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery sets out modern slavery forms such as buying, selling, or transferring a person, in other words human trafficking. Using an individual gives slavery evidence. Circumstances like sexual gratification or working for little pay in return. Managing the ways a person is used also provides evidence for slavery, for example a brothel owner transferring power to a manager in slavery scenario in sex work context. Profiting from using an individual provides evidence towards slavery, such as using an agricultural worker in a slavery situation, where a crop’s profit is taken or received by another individual. Transferring a person to an heir or successor gives evidence. Evidence of transferring of a person can be when women, once their husbands pass, are to be received by other individuals. Destruction, mistreatment, or neglect of an individual following his exploitation gives evidence of slavery. Evidence can include the pressing of physical orders diminishes the human body capacity to support itself. These examples give evidence of modern slavery forms according to the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery.[35]

International standards concerning forbidding slavery and lesser servitudes, such as debt bondage, when one is forced to work to pay off a debt. They are deceived into working for a small amount or no money at all, with minimal control over their debt. Forced labour, is when individuals are forced to work against their will. Servile marriage, where a woman is given or promised for marriage at a young age without her consent. [36] A system trying to prevent these slavery types, has found itself advancing these modern slavery types advanced from the 1926 Slavery Convention.[37] The end of the de jure torture did not bring about the end of the de facto torture. The same can be said about slavery and ownership. The individual did not have to be legally owned to be a slave. [38] In the picture 12 Years a Slave, the law did not acknowledge his status as a slave, he was kept in slavery circumstances, in other words he was de facto, a slave.[39]

When discussing the property law relation to modern slavery forms, the Australian High Court considered the second part of the 1926 slavery definition, which is ‘any or all of the powers attaching to the ownership right’, referring to the Secretary-General of the United Nations 1953 Memorandum, which listed six powers:[40] the individual of servile standing is made the object of a purchase; the master employs the person of servile standing, particularly his capability to work, in complete form, without limitations beside those provided by law; the labor outcome of the individual of the servile status becomes the master’s property without any compensation equivalent to the labor value; the individual’s ownership of servile status can be assigned to another individual; the servile status is endless, it cannot be stopped by the individuals request under it; the servile status is transmitted ‘ipso facto’ to the individual’s descendants having such status. With respect to these powers are connected to the ownership right, it leads the slavery contemporary law discussion and the property law basic principles.[41] Anthony Honoré introduces ownership profoundly, by developing the standard ownership incidents.[42] Honoré defines ownership as ‘those legal rights, duties and other incidents which concern, the individual who has the interest in a thing acknowledged by a mature legal system. A ‘greatest interest’ does not mean a person has an absolute right over an object but, the capacity to take pleasure in and abandon the object, as long as one restrains forbidden actions by statute or subordinate legislation.[43] The standard incidents of ownership that Honoré places constitutes rights and obligations. These include the right to possess, utilize, supervise, the object’s income coupled with the prohibition of damaging use and liability in insolvency cases.[44]

After the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, we question what links ownership and slavery; what links possession in property law and control in modern slavery instances. According to Honoré,[45] ownership is supported by possession. The possession concept in property law is a background relationship of control between the individual and object owned. In property law, to own something is to have complete control over it. Contemporary slavery, where legal ownership is no longer allowed, de facto ownership will be recognized where an individual has complete control over another. The Bellagio Guidelines go further with regards to possession, and control is fundamental when it comes to establishing a case in law for slavery. Where controlling an individual, as one would possess an object they own. This control proves contemporary slavery display.[46] Such control deprives an individual their liberty, allowing for person’s exploitation by using, managing, transferring, or disposing that person. Where contemporary slavery matters, ownership incidents, those ‘powers attaching to the ownership right’ begin and finish with possession. Without the possession existence, the control depriving an individual’s liberty, slavery in law cannot exist.[47] The ‘security right’ held by Honoré,[48] in property law, established the state holds the individual’s property for public reasons, yet still compensates the individual. Therefore, the State has an obligation to maintain the individual’s ownership security right. Property law does not recognize a property right in persons. However, human rights law imposes negative obligations on the state not to enslave, and positive obligation, which requires the state to protect human rights being breached by a third party.

Property law has been significant raising the issues and rights concerning slavery prohibition, those that the European Court of Human Rights acknowledge to be equivalent in the significance to the right to life or torture prohibition. Most importantly, property law’s basic principles have been important in giving transparency to modern slavery settings, mainly, de facto instead of de jure slavery existing and instances where the Bellagio guidelines captured those in contemporary slavery circumstances.


Bibliography (Alphabetical Order):

Cases:

- CN v The United Kingdom (2013) 56 EHRR 24, 4239/08.

- Gregson v Gilbert 1783 3 Douglas 232; 99 ER 629 (The Zong Case).

- Hadijatou Mani Koraou v Niger ECW/CCJ/JUD/06/08.

- Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic IT-96-23-T & IT-96-23/1-T.

- Rantsev v Cyprus and Russia (2010) 51 EHRR 1, 25965/04.

- Siliadin v France [2006] 43 EHRR 16, 73316/01.

- The Queen v Tang [2008] HCA 39.

Legislation:

- Article 1(1) of the 1926 Slavery Convention

- Criminal Code Act 1995.

- Modern Slavery Act 2015.

- Universal Declaration of Human Rights, Article 4.

Secondary Sources:

- Anthony Honoré, 'Ownership', Oxford Essays in Jurisprudence (Oxford University Press 1961).

- Bellagio-Harvard Guidelines on the Legal Parameters of Slavery.

- Brennan FJ Packer, Colonialism, Slavery, Reparations and Trade (2012)

- Claude Welch, 'Defining Contemporary Forms of Slavery: Updating A Venerable NGO' [2009] Human Rights Quarterly.

- F Snyder, Global Economic Networks and Global Legal Pluralism (European University Institute 1999).

- Gary L. Francione, Animal as Persons (Columbia University Press 2008).

- H.M Hyndman, The Record of An Adventurous Life (Macmillan 1911).

- Jane Kim, 'Taking Rape Seriously: Rape as Slavery' [2012] Harvard Journal of Law and Gender.

- Jean Allain, 'Rantsev V Cyprus And Russia: The European Court of Human Rights and Trafficking as Slavery' (2010) 10 Human Rights Law Review.

- Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking (2013).

- Jean Allain and Robin Hickey, 'Property and The Definition of Slavery' (2012) 61 International and Comparative Law Quarterly.

- J.E. Penner, The Legal Understanding of Slavery: From the Historical to The Contemporary (Oxford University Press 2012).

- Joel Quirk, Defining Slavery in all its Forms: Historical Inquiry as Contemporary Instruction (Oxford University Press 2012).

- Kevin Bales and Ron Soodalter, The Slave Next Door: Human Trafficking and Slavery in America Today (University of California Press 2009).

- Nicholas Draper, The Price of Emancipation (Cambridge University Press 2010).

- Orlando Patterson, Freedom in the Making of Western Culture (Basic Books 1991) 9.

- Orlando Patterson, Slavery and Social Death (Harvard University Press 1982).

- Rebecca Scott and Allison Gorsuch, The Legal Understanding of Slavery: From the Historical to The Contemporary (Oxford University Press 2012).

- 'Special Rapporteur on Contemporary Forms of Slavery, Including Its Causes and Consequences' (United Nations Human Rights Office of The High Commissioner, 2014) <https://www.ohchr.org/EN/Issues/Slavery/SRSlavery/Pages/SRSlaveryIndex.aspx> accessed 25 February 2019.

[1] Nicholas Draper, The Price of Emancipation (Cambridge University Press 2010). [2] H.M Hyndman, The Record of An Adventurous Life (Macmillan 1911). [3] Gregson v Gilbert 1783 3 Douglas 232; 99 ER 629 (The Zong Case). [4] Orlando Patterson, Freedom in the Making of Western Culture (Basic Books 1991) 9. [5] Orlando Patterson, Slavery and Social Death (Harvard University Press 1982). [6] Gary L. Francione, Animal as Persons (Columbia University Press 2008). [7] J.E. Penner, The Legal Understanding of Slavery: From the Historical to The Contemporary (Oxford University Press 2012). [8] Joel Quirk, Defining Slavery in all its Forms: Historical Inquiry as Contemporary Instruction (Oxford University Press 2012). [9] Orlando Patterson (Ibid n 10). [10] Article 1(1) of the 1926 Slavery Convention. [11] Jean Allain and Robin Hickey, 'Property and The Definition of Slavery' (2012) 61 International and Comparative Law Quarterly. [12] Tony Blair, 'Tony Blair's Statement on The Slave Trade in Full' [2006] Times Online. [13] Working group on contemporary forms of slavery. [14] Universal Declaration of Human Rights, Article 4. [15] 'Special Rapporteur on Contemporary Forms of Slavery, Including Its Causes and Consequences' (United Nations Human Rights Office of The High Commissioner, 2014) <https://www.ohchr.org/EN/Issues/Slavery/SRSlavery/Pages/SRSlaveryIndex.aspx> accessed 25 February 2019. [16] Jane Kim, 'Taking Rape Seriously: Rape as Slavery' [2012] Harvard Journal of Law and Gender. [17] Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic IT-96-23-T & IT-96-23/1-T. [18] Kunarac (n 23). [19] Allain (n 11). [20] Siliadin v France [2006] 43 EHRR 16, 73316/01. [21] F Snyder, Global Economic Networks and Global Legal Pluralism (European University Institute 1999). [22] Universal Declaration of Human Rights, Article 4. [23] Ting Xu and Jean Allain, “Property in Persons: Prohibiting Contemporary Slavery as A Human Rights”, Property and Human Rights in A Global Context (20th edn, Hart Publishing 2015). [24] Rantsev v Cyprus and Russia (2010) 51 EHRR 1, 25965/04. [25] Jean Allain, 'Rantsev V Cyprus And Russia: The European Court of Human Rights and Trafficking as Slavery' (2010) 10 Human Rights Law Review. [26] CN v The United Kingdom (2013) 56 EHRR 24, 4239/08. [27] Siliadin (n 26). [28] CN (n 32). [29] Modern Slavery Act 2015. [30] Kevin Bales and Ron Soodalter, The Slave Next Door: Human Trafficking and Slavery in America Today (University of California Press 2009). [31] Claude Welch, 'Defining Contemporary Forms of Slavery: Updating A Venerable NGO' [2009] Human Rights Quarterly. [32] Hadijatou Mani Koraou v Niger ECW/CCJ/JUD/06/08. [33] The Queen v Tang [2008] HCA 39 [34] Criminal Code Act 1995. [35] Bellagio-Harvard Guidelines on the Legal Parameters of Slavery. [36] 'What Is Bonded Labour' (anti-slavery, 2019) <https://www.antislavery.org/slavery-today/bonded-labour/> accessed 3 March 2019. [37] Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking (2013). [38] Rebecca Scott and Allison Gorsuch, The Legal Understanding of Slavery: From the Historical to The Contemporary (Oxford University Press 2012). [39] Xu and Allain (n 23). [40] United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc E/2357. [41] Xu and Allain (n 23). [42] Anthony Honoré, 'Ownership', Oxford Essays in Jurisprudence (Oxford University Press 1961). [43] Ibid. [44] Honoré (n 42). [45] Ibid. [46] Xu and Allain (n 23). [47] Ibid. [48] Honoré (n 42).