Throughout history, slavery has adapted fluidly to change, and it continues to do so today. The goal of this chapter is to enrich the juridical guidance presented in this volume by providing a nuanced understanding of the ways in which slavery today can be identified, measured, and predicted, both in terms of the individual lived experience of enslavement and in terms of the broader social and economic factors that support contemporary slavery. It remains difficult to estimate the extent of global slavery, but certain indicators can be used to measure the risk of enslavement in particular communities, nations and/or regions. Understanding the factors that support slavery and human trafficking within and across national borders, and the ways in which slaves are used in the production of local, national and globally-traded commodities, is essential when performing the first step of assigning legal accountability: the identification of the victim of slavery, as well as understanding the processes by which they were enslaved.
With the end of legal slavery, slavery itself did not disappear. Even a cursory investigation tells us that slavery has been a constant part of the human condition, though not present in all cultures or societies at all times. Though sometimes referred to as an ‘institution’, it is not a social institution in the precise sociological meaning of that term, which is used to describe those key organized activities that are and have been present, in one form or another, in all human societies and cultures, such as economic exchange or forms of family organization. It is important to note that while slavery has been common throughout history, and is in evidence in most countries today, it is not a universal attribute of human societies. Put another way, slavery cannot be assumed to be an innate characteristic of human beings, a fact that bears both on how it may be defined and how it may be understood. At the same time, like most human activities, it has been expressed in widely variant forms.
In attempting to determine whether a suspected activity is, in fact, slavery it is necessary to determine the fundamental nature of enslavement. At the same time it is important to remember that slavery is a construct of human behaviours, and can be as various in its manifestation as the human imagination allows. Human activities can be extremely dynamic and never occur in isolation, tending to reflect the cultural themes of the societies in which they appear. For that reason any definition of slavery must focus on two key factors: the essential criteria or characteristics of slavery no matter what sort of cultural or social ‘packaging’ surrounds it; and the broader patterns of how those essential criteria are acted out both across time and across cultures. For example, most slavery in most cultures has had an economic aim, the labour of the slave enriching the slaveholder, but that exploitation has been played out (as well as rationalized or justified) in hundreds of different ways at different points in history and in different countries. However, also at different times and different places, some slaves have been exploited as objects of conspicuous consumption, their simple presence serving a social, and possibly a psychological or economic, need of the slaveholder. They were no less slaves for not being active labourers, for a sufficiency of the essential criteria still applied to them. This is the case because slavery at its most essential is about control.
A key difficulty in applying a legal definition of slavery to any human activity that is suspected of being enslavement is the varying definitions within international legal instruments of slavery. This is not the place to review these variant definitions, but it is worth noting, as an example of the mix of definitional frameworks, that some include activities, such as forced or compelled marriage or even organ trafficking, as subsets within slavery, and others do not. Other legal definitions define slavery itself as a subset of another activity, such as human trafficking. The lack of agreement between these instruments helps to generate a lack of conceptual clarity when confronting activities that may or may not be considered within the wider category of slavery. A second result is that courts have issued rulings that either set down divergent definitions or interpret the same definition very differently.
One response to the problem of differing definitions of slavery is to align with the committee of experts that met to address this problem in 2010–2012,1 and is represented in this volume. This assembly of international legal scholars, historians of slavery, and social scientists, many of whom had worked within international governmental organizations, reviewed existing definitions within international law in order to determine which of these definitions might provide the greatest clarity and resolve the existing definitional confusion. The resulting consensus was that the definition of slavery available within the existing international legal framework that provided the greatest clarity and usefulness was that given in the 1926 Slavery Convention of the League of Nations, specifically that ‘Slavery is the status or condition of a person over whom any or all of the powers attaining to the right of ownership are exercised’. To this, the committee of experts added explanatory guidelines to clarify the application of the 1926 definition. The aim was to elucidate the ‘powers attaching to the right of ownership’ so that the attributes of any instance of suspected enslavement might be compared to the criteria inherent within the 1926 Convention. To accomplish that, it is necessary to, firstly, locate the legal definition within the lived reality of enslavement, and, secondly, to specify more clearly the attributes of ownership that apply with the law of property and make clear how these attributes apply to the situation of enslavement.
To accomplish the first requirement, a Guideline sets out that:
In cases of slavery, the exercise of ‘the powers attaching to the right of ownership’ should be understood as constituting control over a person in such a way as to significantly deprive that person of his or her individual liberty, with the intent of exploitation through the use, management, profit, transfer or disposal of that person. Usually this exercise will be supported by and obtained through means such as violent force, deception and/or coercion.
The power of this Guideline, and of the definition informed by this Guideline, is that it addresses the fundamental social and economic relationship between two people that constitutes slavery. It forms a bridge between the lived reality of enslavement and the legal definition needed to specify and address this crime. The Guideline then specifies more clearly the attributes of ownership that apply with the law of property.
Drawing on the work of the legal scholars Honoré, Hickey and Penner, the powers attaining to the right of ownership in legal discourse often referred to as the ‘instances of ownership’, are as follows:
The right to possess—according to Honoré, this is ‘the foundation on which the whole superstructure of ownership rests’.2 Possession is demonstrated by control, normally exclusive control. This is best demonstrated in what Hickey describes as the ‘maintenance of effective control’,3 meaning exercising control over time and likely to include other instances of ownership such as:
The right to use; the right to manage; the right to income—‘use’ being the right to enjoy the benefit of the possession; ‘manage’ being the right to make decisions about how a possession is used; and ‘income’ being the right to profits generated by a possession. Added to these central rights of ownership is the right to capital, which refers to the right to dispose of the possession, by transfer, by consumption, or by destruction.
These ‘instances of ownership’—control, use, management, and profit—may be regarded as the central rights of ownership. It is their presence and exercise that can be applied and tested within a situation, such as slavery, where actual legal possession is not permitted. Given the illegality of slavery in all countries, they provide a critical power of definition and identification of the crime of slavery.
The other attributes of possession, as normally expressed, pertain primarily to ownership sanctioned by law and are less useful in understanding contemporary illegal enslavement. That is not to say, however, that modern slaveholders do not seek to exercise these ‘rights’ when they can. These other attributes of possession include rights of security—protection against illegal appropriation of a possession; transmissibility—the right to transfer legal ownership; and two indicators of the permanence of possession: absence of term—the lack of a time restriction on ownership, and the residual character of ownership—meaning that a possession may be loaned or rented but will return to its owner and never cease to be property.
It is important to be clear that some of the powers attaining to the rights of ownership can be demonstrated in situations where the rule of law is absent, and that other recognized powers attaining to the right of ownership are dependent upon a functioning framework of law. Given that slavery is a crime, thus tending to exclude the applicability of the second category of powers and rights, the determination as to whether an activity is slavery will depend on the criteria inherent in the first, or central, rights of ownership. These are powers that can be exercised and identified either within a legal framework or within a context of illegality.
For most forms of slavery, the fundamental powers of ownership are exactly those that can be determined to exist outside legal frameworks—control, use, management, and profit—precisely the attributes that, in somewhat different language, are used to define slavery by social scientists whose aim is not to locate a particular human activity within the rule of law but to describe it as social phenomena. For example, one social science definition is that slavery is:
the control of one person (the slave) by another (the slaveholder or slaveholders). This control transfers agency, freedom of movement, access to the body, and labor and its products and benefits, to the slaveholder. The control is supported and exercised through violence and its threat. The aim of this control is primarily economic exploitation, but may include sexual use or psychological benefit.4
Note that this social science definition contains the concepts of control, use, management and profit, but expands the definition by also specifying the mechanisms of control (violence and its threat) and common outcomes of that control (economic exploitation and sexual use). This elaboration is not surprising given that this is a definition illuminating the common and essential elements of the economic and social relationship termed ‘slavery’. It is an operational definition designed to aid the identification of slavery where it occurs. What is important is that the fundamental conceptual agreement of both the legal and social scientificdefinitions means that they point to and can be used to determine the existence of the same human activity—slavery. Furthermore, their coherence points to a general applicability in both the legal realm and the empirical study of slavery in the field.
It is important to examine the consistency of the legal and the social science definitions of slavery for two reasons. The first reason is that a very large number of cases of slavery never come under the law, but are dealt with by workers in social services or human rights organizations. Even in the United States, a country with a demonstrably strong rule of law, it is estimated that only one third of slavery cases that are uncovered come to the notice of law enforcement.5 In the developing world, and in countries where the rule of law is more tenuous, the proportion of slavery cases coming to the law can be much lower. In spite of an absence of legal recourse, those who work to liberate slaves and help them reintegrate into their communities have a clear experiential understanding of what defines slavery, but it is not necessarily couched in legal terms. Building an understanding of the coherence of legal definitions and those definitions that are being applied in the work of liberation and reintegration forges a link that can help both to free those in slavery and to prosecute slaveholders. If the definitions of slavery used by these two groups are not in harmony, the result is a serious gap in what should be a process of identification and liberation leading to legal action and remedy.
The second reason it is important to examine the consistency and coherence of the legal and the social science definitions of slavery concerns the development of anti-slavery policies. Because slavery is a global phenomenon, it is expressed in many forms reflecting the cultural, social, and economic influences of different regions, cultures, and countries. While the form of slavery will differ between countries and regions it is also a patterned activity, reflecting distinct similarities in the exercise of violent control and exploitation. Understanding the local differences while addressing the overarching themes of violence, possession, and exploitation are critical to reducing and ultimately eradicating slavery. For that reason, I argue that an operational social science definition of slavery is needed to identify it within its social and cultural context, and at the same time a universally applicable legal definition is needed to recognize and enforce its status as a crime jus cogens. An example of the importance of the coherence of two such definitions is the description of contemporary slavery that follows. The themes and facts below are derived from social science working definitions that, when operationalized, allow measurements and distinctions to be made of slavery—measurements that then inform the development of legal responses to this crime.
It is difficult7 to estimate the extent of contemporary slavery given its hidden nature. The most widely accepted estimate puts the number of slaves in the world today at around 27 million.8 In spite of the recent attention given to that part of contemporary slavery termed ‘human trafficking’, which describes the process of moving a person into a situation of slavery, those who are ‘trafficked’ into slavery represent a minority of all cases of modern enslavement. Most slaves are, in fact, sedentary, such as the large number of people held in hereditary forms of collateral debt bondage9 slavery in South Asia. It is believed that the countries of South Asia hold the largest number of enslaved people. The regions of Southeast Asia and North and West Africa also have relatively large numbers in slavery. As of 2011, estimates of slavery are hampered by the hidden nature of the crime, and lack representative sampling approaches. It is worth noting that one study of five eastern European countries did use a population sample survey to ask about victimization.10 This representative sample allowed a more precise estimate of the number of human trafficking victims than had been previously accomplished. Further estimation based on the derived relative proportions of national populations given in an eastern European study have generated a tentative estimate of global slavery nearer to 30 million that has not yet been peer-reviewed as of 2012.11 Whatever the global total, no country appears to be immune to this crime and documented cases and victims numbering in the thousands are found in North America, Europe, Japan, and other developed countries in spite of reasonably functioning legal systems.
In terms of the forms of exploitation, the International Labour Organization (ILO) estimates that of the total number of people in a situation of forced labour,12 80 per cent are exploited by private agents and 20 per cent are forced to work by the state or by rebel military groups. Of the estimated 27 million slaves, the breadth of research suggests that most are used in simple, non-technological and traditional work that feeds into local economies. Around the world, a large proportion of slaves work in agriculture or extractive activity such as mining and quarrying. Other common types of slave labour include brick-making, textile manufacture, leather working, gem-working and jewellery-making, cloth- and carpet-making, domestic service, forest clearing, and charcoal-making. According to the ILO, this forced labour for economic exploitation accounts for approximately 90 per cent of slavery in Latin America and the Caribbean, Asia, Africa, and the Middle East, while commercial sexual exploitation accounts for the remaining 10 per cent. Only in industrialized countries, including the United Sates and the European Union, is commercial sexual exploitation thought to predominate—accounting for 50 to 75 per cent of those in slavery.
While the essential attributes of slavery—control over a person in such a way as to significantly deprive that person of his or her individual liberty, supported by and obtained through force, threat, deception and/or coercion, with the intent of exploitation through the use, management, profit, transfer or disposal of that person—have been and are the same across geography and time, there is one change in the nature of slavery unique to the present moment: the collapse in the acquisition cost or ‘price’ of slaves. The acquisition cost of human beings has dropped from an historical average of around £30,000 to about £60 today. For example, the ‘prime field hand’, the most common type of slave traded in the American Deep South prior to the American Civil War cost, on average, US$1,200 in 1850 dollars. At that time, $1,200 would also pay the cost of building a house or of buying 100 or more acres of land, and is equivalent to $45,000 in 2012 currency. Today most slaves can be acquired for $100 to $500, with the cost falling as low as $10. This price collapse is supply driven. Of the seven billion people on the planet in 2012, about one billion are living on $1 to $2 per day. Of this billion, perhaps 600 million to 800 million are also living in countries where the rule of law is not effective or is absent. Economically desperate, without resources or the protection of law, the physically viable (thus most useful as slaves) are easily harvested from this pool of vulnerable potential slaves by those with access to the tools of violence and trickery and the willingness to use them.
As population growth and increased vulnerability created a large supply of potential slaves, this led to a collapse in prices. Population growth, therefore, helps to explain the drop in slave prices, but it still does not necessarily explain the growth in slave numbers. Simply having a lot of people does not make them slaves; a key supporting factor is the vulnerability to enslavement brought by poverty.
In the context of the world economy, slavery is a relatively small enterprise. As noted, slaves tend to be used in low-value work, such as quarrying and agriculture. In addition, while slaveholders can make a high rate of profit, there may only be five to eight million slaveholders in the world, each holding, on average, a handful of slaves. The ILO’s estimate of around US$44 billion per year in slavery-derived profits is a drop in the ocean of a global economy estimated to be worth US$74 trillion.13