Christopher McCrudden: Slavery and the constitutional role of judges

How far should judges “update” our legal concepts, or should they root their interpretation in the historical understanding of the concept, leaving updating to the legislature?

In the United States, disputes between “strict constructionists” who seek to base the meaning of the Constitution on a literal meaning of the text infused with an understanding of what the Founding Fathers intended (think of Justice Scalia), and those who seek a “moral reading” of the Constitution, like Ronald Dworkin, are the stuff of political debate and Senate judicial confirmation hearings.

In the United Kingdom, an equivalent debate has never, really, caught hold of the popular imagination. I’ve yet to see a prime time television debate here on the pros and cons of judicial use of teleological interpretation, although shadows of the American debate flit occasionally through some of the current political debates on the role of judges in the human rights context. Is it time for this issue to be brought more into public discussion, and a moral reading defended?

The issue goes beyond the role of judges, of course. If we expand the use of a term with a powerful moral message based on its original use beyond that original meaning, is there a danger that we undermine the power of its use in the original context?  If we apply the word “torture” to water boarding, do we devalue it when we want to use it to describe the Tudor practice of disemboweling living prisoners before their executions? If we apply the word “holocaust” to the genocide in Rwanda, do we debase the Jewish holocaust in the Europe of the 1930s and 1940s?

Similarly, if we say that some types of domestic servitude or trafficking are “slavery,” do we lessen the full horrors of the trans-Atlantic slave trade of the 17th, 18th and 19th Centuries?

So far as I know, every country in the world has legally abolished slavery.  If slavery is defined as existing where one person has the legal ownership of another person, then slavery does not exist because in every country that has abolished slavery the legal ownership of one person by another is not possible.

Should we say, then, that the category of who is to be classified as a slave today should break away from the requirement of legal ownership?  Or should we keep the concept of slavery as the term to be used only to describe a historically-situated and specific form of degradation, and develop different legal terms to describe the new problems of degradation we face: servitude, forced labour, trafficking?  Does it matter what we call it, as long as we can get rid of it?

When an international treaty was being drafted to prohibit slavery, the definition of slavery that was agreed in 1926 attempted to address this problem. The Slavery Convention defined slavery, in the first Article, as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”

Does this mean that legal ownership of one person by another is still necessary, in which case it will have almost no application today, or does it mean that a broader category of practices will be caught by the definition? In particular, how far should we use our understanding of the historical practice of slavery to inform our interpretation of what “the powers attaching to the right of ownership” means in the slavery context?

In the first case to deal with the definition of enslavement as a crime against humanity for sexual exploitation, the International Criminal Tribunal for the Former Yugoslavia (ICTY) decided in Prosecutor v Kunarac, judgment of 12 June 2002, at para 117, that: “[T]he traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘chattel slavery’ has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership. In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘chattel slavery’ but the difference is one of degree.”

The Tribunal identified, at para 119, certain factors as critical in finding that a particular relationship constituted slavery: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”

In Koraou v Niger (2008) AHRLR 182 (ECOWAS, 2008), the Court of Justice of ECOWAS, the Economic Community of West African States, held that Miss Koraou was a victim of slavery for the nine years she was held by her master, and that the state of Niger was liable for its failure to deal adequately with this form of slavery, awarding her about US$ 20,000.

As regards whether she was held in slavery, the Court (controversially — my colleague Jean Allain has strongly criticized the decision, 103(2) American Journal of International Law (2009), 311) adopted the approach taken by the ICTY. Niger denied that Miss Koraou was a slave; she was, it is quoted as saying, at para 78, the wife of her former master “with whom she had lived a more or less happy marital relationship”.

The Court would have none of this.  At para 79, it states: “Even with the provision of square meals, adequate clothing and comfortable shelter, a slave still remains a slave if he is illegally deprived of his freedom through force or constraint.  All evidence of ill treatment may be erased, hunger may be forgotten, as well as beatings and other acts of cruelty, but the acknowledged fact about slavery remains, that is to say, forced labour without compensation.  There is nothing like goodwill slavery. Even when tempered with humane treatment, involuntary servitude is still slavery.”

The Court continued, applying this approach to the facts of the case, at para 80: “the moral element in reducing a person to slavery resides … in the intention of [her former master] to exercise the attributes of the right of ownership over the applicant, even so, after the document of emancipation had been made. Consequently, there is no doubt that [Miss Koraou] was held in slavery …”.

Although a significant victory, and procedurally difficult, it was in one sense an easy case for the Court, if not for the applicant, because it was clear that what her former master did was to seek to continue, after her manumission, the conditions that had characterized the relationship that has existed when she was his slave. In that sense, it was a clear case of wanting to continue exercising the “powers attaching to the rights of ownership.” The Court’s broader definition, technically, goes beyond what it needed to do to establish slavery in this case.

What about cases where there is no prior relationship of slavery? In Siliadin, (2006) 43 E.H.R.R. 16, the facts were at one level far removed from those in the Koraou case. In January 1994 Ms Siliadin, who was then fifteen and a half years old, arrived in France with a French national of Togolese origin, who had undertaken to regularise the girl’s immigration status and to arrange for her education. Ms Siliadin was to do housework for this woman until she had earned enough to pay her back for her air ticket. The applicant effectively became an unpaid servant and her passport was confiscated. She was subsequently “lent” to another couple and became a maid to the couple, who made her work from 7.30 a.m. until 10.30 p.m. every day with no days off. The applicant slept in the children’s bedroom on a mattress on the floor and wore old clothes.

Did this amount to a breach of Article 4 ECHR? In cases like this, the tension between slavery as a unique institution existing at a certain time and place, and slavery as a set of practices like those described by the ICTY and adopted by the ECOWAS court is most apparent. How far should the historical understanding of the concept determine its current use?

In Siliadin, the ECtHR appears, on one reading, to restrict the current understanding of slavery to something much closer to the historical idea of chattel slavery, that is slavery based on ownership. But the way in which the Court in Siliadin phrases the crucial paragraph is ambiguous. The Court says: “Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, thus reducing her to the status of an ‘object’.”

One might emphasize the legal ownership point. I would emphasise the last part of the sentence.  This is because these words (“reducing her to the status of an ‘object’”) is a clear indication that the Court is conceptualizing (in a somewhat confused way, I admit) the idea of slavery as a particularly egregious form of the denial of a person’s human dignity, in the Kantian sense of not treating a person as a means rather than an end in themselves.  Thus it seems that what the Court requires is evidence of the type of extreme “objectivization” of a person that we find in chattel slavery. That seems to be the essence of what the Court is getting at here. This approach is also consistent with the Court’s general approach of adopting what it calls a teleological approach, rather than an historical approach, to interpretation.

This interpretation is borne out by the ECtHR’s subsequent case law, particularly Rantsev v Cyprus and Russia, (2010) 51 EHRR 1. In that case, the ECtHR considered whether trafficking constituted a breach of Article 4 ECHR. Here is what the Court says, at para 276, regarding Siliadin: “In Siliadin, considering the scope of “slavery” under art. 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an ‘object’.”

The Court continues, at para 280, that “the International Criminal Tribunal for the Former Yugoslavia concluded that the traditional concept of ‘slavery’ has evolved to encompass various contemporary forms of slavery based on the exercise of any or all of the powers attaching to the right of ownership. In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person’s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour.”

It then goes on to find that trafficking is just such an example of where the “powers attaching to ownership” are being exercised, although the Court decides that it is unnecessary to decide whether trafficking amounts to torture because in any event it itself amounts to a violation of Article 4.

Which brings us to the role of British judges. In a recent case, decided this July (R. v SK [2011] 2 Cr. App. R. 34), the English Court of Appeal interpreted recently enacted British legislation outlawing slavery. Section 4(1) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 made it an offence, among other things, to arrange or facilitate the entry into the United Kingdom of an individual with the intention to exploit that individual in the United Kingdom. Section 4(4) of the 2004 Act provided that a person was exploited if she was the victim of behaviour that contravened Article 4 ECHR.

The defendant in this case had arranged for the entry of a woman into the United Kingdom from a country in Africa. Between October 2006 and February 2010, she was made to work long hours, was poorly fed, and was paid irregularly. She was never allowed out on her own, and her conversations with her family in her own country were listened to and sometimes recorded. The defendant was charged with trafficking a person into the United Kingdom for exploitation.

In interpreting what the Court of Human Rights said about slavery in Siliadin, the Court of Appeal said (at para 39): “[The] core elements [of Article 4] … defined in the judgment of the European Court of Human Rights in Siliadin … form a hierarchy of denial of personal autonomy. The essence of the concept of ‘slavery’ is treating someone as belonging to oneself, by exercising some power over that person as one might over an animal or an object…”

And then at para 41: “Nor should the concepts be seen as archaic.  To dismiss ‘slavery’ as being merely reminiscent of an era remote from contemporary life in the United Kingdom is wrong.  In the modern world exploitation can and does take place, in many different forms.  Perhaps the most obvious is that in which one human being is treated by another as an object under his or her control for a sexual purpose…”

What, then is my point?  The modern (legal) view of slavery takes the idea of legal ownership and views it as wrong because of the deeper meaning that it has: that it reduces humans to mere objects, and is thus fundamentally inconsistent with their humanity. History plays an important role in persuading the courts to come to that conclusion. But recent human rights courts (and the Court of Appeal) get it right, I think, in focusing on the essential wrong, rather than on the legal form in which that wrongness was encapsulated, however much that may have been the focus of attention of the abolitionists.

More broadly, what the story teaches us is that, if a British debate on the role of judges does begin to ape the American debate, and I suspect over time it will, we should not be content only to consider these issue at a highly abstract level.  What adopting a teleological approach to interpretation means in practice is that the Siliadins, the Koraous, and the anonymous victim in R v SK obtain a legal remedy. The evolution of the concept of slavery shows the importance of judicial evolution of legal concepts. It shows the importance of a teleological interpretation in practice. It is something we should be proud of.

Christopher McCrudden is Professor of Human Rights and Equality Law, Queen’s University Belfast, and Leverhulme Major Research Fellow 2011-2014. 

An earlier version was presented to a panel discussion “Slavery Against the Law: Enslavement and Human Trafficking in Historical Perspective, from the Amistad Captives (1839) to Siliadin v France (2005)”, University of Michigan Law School, October 6, 2011.