Queen's University Belfast Law Research Paper No.

12-06

Slavery and Its Definition

Jean Allain
Kevin Bales

Slavery and its Definition

Jean Allain and Kevin Bales
Had the abolitionists of the past, the likes of Abraham Lincoln or William Wilberforce been able
to see into the Twenty-First Century, what might have struck them as very strange was that while
we had come far in ending slavery and suppressing human exploitation, we seem to have lost
sight of what the term slavery means. This, despite the fact that for more than eighty-five years
there has been a consensus in international law as to the legal definition of slavery. Likewise,
despite having an established definition of slavery in law at the international level and the
majority of States having constitutional or legislative provisions prohibiting slavery in their
domestic legal order, very little action has been taken to prosecute individuals for enslaving
another person until recently. We say until recently, as it can be said that we are currently
living through a neo-abolition era, one that goes beyond its historical predecessor which
focused on ending legal slavery; to a contemporary movement meant to end slavery in fact.
Distinctive parallels between abolition of old and the current, neo-abolitionist, movement exist.
Just as Quaker social activism and Anglican evangelicalism laid the foundation for the British
abolitionist campaign which ultimately lead to the abolition of legal slavery; so too should we
acknowledge the parallel roles of human rights activism (still including Quakers) on one hand
and the Religious Right in the United States of America on the other hand and their joint
influence on the American Congress in passing the 2000 Victims of Trafficking and Violence
Protection Act.1 Likewise, just as British dominance of the seas during the Nineteenth Century
allowed it to end of the slave-trade; so too has the current dominance of the United States
allowed it, through legislation dealing with trafficking, to force other countries to get serious
about prosecuting cases of slavery.2
The dominant position which the United States of America holds in both soft and hard power
has allowed it, through informal empire, to require States to pass legislation that criminalises the
movement of persons through coercion, fraud, or deceit, with the intent of exploiting them. In the
most recent manifestation of the 2000 Victims of Trafficking Act, the William Wilberforce
Trafficking Victims Protection Re-authorization Act of 2008 makes it the policy of the United
States not to provide non-humanitarian, non-trade related foreign assistance to any government
that (1) does not comply with minimum standards for the elimination of trafficking; and (2) is
not making significant efforts to bring itself into compliance with such standards.3 These
minimum standards relate to legislating criminal liability for those involved in trafficking in
persons and require that the State should make serious and sustained efforts to eliminate severe

Kevin Bales is Professor of Contemporary Slavery, Wilberforce Institute for the Study of Slavery and
Emancipation, University of Hull, and co-founder Free the Slaves; Jean Allain is Professor of Public International
Law, Queens University, Belfast and Extraordinary Professor, Human Rights Centre, University of Pretoria.
1
See Christopher Leslie Brown, Moral Capital, 2006; and Ronald Weitzer, The Social Construction of Sex
Trafficking: Ideology and Institutionalization of a Moral Crusade, Politics Society, Volume 35, 2007, pp. 447-475.
2
See Jean Allain, Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade, British
Yearbook of International Law, Vol. 78, 2008, pp. 342-388; and Section 110, United States, Department of State,
Victims of Trafficking and Violence Protection Act, 28 October 2000.
3
Section 110, United States, Department of State, Victims of Trafficking and Violence Protection Act, 28 October
2000.

Electronic copy available at: http://ssrn.com/abstract=2123155

forms of trafficking in persons.4 Thus, in the case of trafficking, the United States is requiring
other countries to go beyond legislation to actual suppression.
Before continuing, it should be made plain that trafficking is not in itself slavery, but a
process by which slavery can be achieved. However, the moves of the United States to suppress
trafficking have a knock-on effect which touches on slavery. This is so because the trafficking
legislation which has emanated from the US Congress is modelled upon, and an off-shoot of, the
United Nations 2000 Palermo Protocol the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and Children. The Palermo Protocol, for its part, sets
out a definition of trafficking that establishes a crime related to a chain of movement of a person
into situations of exploitation, as a result of violence or other means. The Palermo Protocol
gives examples of the types of exploitation that are meant to be addressed; these include forced
labour, servitude, and, most important for our consideration: slavery.5 As a result, if countries
are meant to suppress trafficking where it involves slavery, it is rather difficult to turn a blindeye to cases of slavery on their territory that do not involved trafficking, in the sense of this chain
of movement.
The other influence that the United States has had on the emergence of the neo-abolitionist era
is rather more equivocal as it relates to the crime against humanity of enslavement within the
jurisdiction of the International Criminal Court. While the United States remains hostile to
becoming party to the Court, it has also utilised it instrumentally, allowing the United Nations
Security Council to act against the leadership of both Sudan and Libya. Where the international
crime of enslavement is concerned, what places us on firmer ground with regard to United
States influence is its leading role in creating the ad hoc criminal tribunals for the former
Yugoslavia and Rwanda which acted as precursors; and thus cleared the way for the
4

Section 108(a), United States, Department of State, Victims of Trafficking and Violence Protection Act spells
out those minimum standards for the elimination of trafficking as follows:
(1) The government of the country should prohibit severe forms of trafficking in persons and punish acts of
such trafficking.
(2) For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the
victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape
or kidnapping or which causes a death, the government of the country should prescribe punishment
commensurate with that for grave crimes, such as forcible sexual assault.
(3) For the knowing commission of any act of a severe form of trafficking in persons, the government of the
country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the
heinous nature of the offense.
(4) The government of the country should make serious and sustained efforts to eliminate severe forms of
trafficking in persons.

Article 3(a), Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
15 November 2000 reads:
Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Electronic copy available at: http://ssrn.com/abstract=2123155

establishment of the International Criminal Court.6 For many of the one hundred and twenty
States that have signed up to the International Criminal Court, this has meant the introduction of
domestic legislation developed to ensure that the Court can function in a complementary fashion
within the domestic legal order. Part of that legislation inevitably addressed the crimes under the
jurisdiction of the International Criminal Court and for a number of States, including Burundi,
Malta, Niger and Romania, they have, for instance, incorporated enslavement into their
domestic legislation.
These are the dynamics at play that have brought slavery back into legal focus in the context
of the early Twenty-First Century. Yet, today, the very term slavery and its contours are
contested despite the fact that an international definition of slavery was established in 1926, was
confirmed in 1956, and was replicated in substance as the definition of enslavement included in
the 1998 Statue of the International Criminal Court. However, it may also be said that the legal
contours of slavery remain contested not necessarily despite the 1926 definition of slavery, but
because of it. This is so as the definition looks rather opaque at first glance:
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.
Ones first impression might be that of ownership; that a person needs to own another for slavery
to be said to exist. But this is not so.
As the Australian equivalent of the United States Supreme Court made clear in its 2008 Tang
case, the definition has contemporary relevance in situations where a person does not legally
own another, as they did in days of old. What the High Court of Australia determined was that
while the 1926 definition applied in de jure situations that is: where a person legally owns
another it also applied in de facto situations where a person exercised the powers attaching to
the right of ownership instead of exercising the right of ownership over a person. In other words,
that a person could be in a condition of slavery without legal ownership, if it could be shown that
they were treated like a slave in fact, if not in law. Let us provide some examples to illuminate
this de jure-de facto difference.
Consider the case of a bigamist. In a majority of countries it is illegal for a married person to
marry a second time. Let us say that a man gets married a second time. For that man the second
marriage is illegal, the courts will not recognise it; thus he is not married de jure. However, from
the courts perspective he is married de facto; which allows for the bigamy case to proceed.
A further example gets us closer to a consideration of the essence of the definition of slavery.
Consider the dispute between two drug dealers over a kilogram of heroin. While neither has a de
jure right of ownership of the drugs, the courts will recognise the exercise of a power attaching
to such a right of ownership in a de facto sense so as to hold one or the other in violation of the
laws related to possessing controlled substances. This example is instructive as it functions
within a property law paradigm that is also applicable in cases of contemporary slavery. While
the judge could make a determination of de facto ownership if a drug dealer was caught selling
heroin, typically such cases are resolved on the simple issue of possession: did the individual
have control over the heroin, did she possess it.

See John Cerone, Dynamic Equilibrium: The Evolution of US Attitudes toward International Criminal Courts
and Tribunals, The European Journal of International Law, Volume 18, 2007, p. 288.

Electronic copy available at: http://ssrn.com/abstract=2123155

In the case of slavery the element of possession is fundamental and allows us to drain the
swamp and walk out of the definitional quagmire which has marginalised the legal definition of
slavery. The definition has been often bogged down, since at least the 1930s, by individuals and
organisations trying to expand the notion of slavery to fit their agenda and thus benefit from the
visceral power of a claim that what they were railing against is slavery. Consider, for instance,
attempts within the United Nations during the 1960s to equate colonialism and apartheid to
slavery; or in the 1990s with UN studies considering incest and juvenile detention under the
heading of contemporary forms of slavery.7
With the legal definition of slavery marginalised, peopled looked elsewhere to define slavery.
A survey of the academic literature on contemporary slavery including much of the legal
literature on the subject would show that, in the main, it has turned to the work of Kevin Bales
and his sociological reading of what constitutes slavery. For more than fifteen years, Bales has
attempted to build discussions on contemporary slavery and propose an agenda for both research
and effective intervention.8 Reduced to its essence, Bales definition turns on the following
elements: the use of violence, the ability to control, for economic exploitation.9 The primary
indicator of slavery is that of control; control that diminishes the agency of the slave, normally
demonstrated by the physical control of the slave that prevents their escape from enslavement
and forces them to work. The primacy of control is often additionally demonstrated by the sexual
use of the body of the slave by the slaveholder in addition to other forms of exploitation.
Bales also argues that slavery as a status or condition is not defined by the customs, practices,
methods, or mechanisms of enslavement. A person might be taken into slavery by many paths,
but the means of enslavement, the vehicle by which a person arrives in the state or condition of
slavery, while important for understanding the particular nature of a case of slavery, does not
determine that state, it is simply the means by which a person arrives under the control of
another.
7

See United Nations, Economic and Social Council, Resolution 1126 (XLI), 26 July 1966; and United Nations,
Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination
and Protection of Minorities, Contemporary Forms of Slavery: Report of the Working Group on Slavery on its
Eighteenth Session, UN Doc. E/CN.4/Sub.2/1993/30, 23 June 1993, pp. 67-68 and 76-79.
With regard to the 1930s, see the International Commission of Inquiry into the Existence of Slavery and Forced
Labour in the Republic of Liberia. 8 September 1930.
8
See Kevin Bales, Disposable People: New Slavery in the Global Economy, 1999; Kevin Bales, Understanding
Global Slavery, 2005; Kevin Bales, Ending Slavery: How We Free Todays Slaves 2007; Kevin Bales, Zoe Trodd
and Alex Williamson; To Plead Our Own Cause: Personal Stories by Todays Slaves, 2008; and Kevin Bales and
Ron Soodalter, The Slave Next Door: Human Trafficking and Slavery in America Today, 2009.
9
See for instance: the use of violence to control the slave, the resulting loss of free will, and the economic
exploitation that normally precludes the slave receiving any recompense for their work. Kevin Bales,
Understanding Global Slavery: A Reader, 2005, p. 91.
By Kevin Bales own admission, his definition has evolved as this thinking on the subject has evolved. His
most recent understanding of slavery, not yet in print reads:
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 product 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.
See Kevin Bales, Professor Kevin Bales Response to Professor Orlando Patterson, in the forthcoming Jean Allain (ed.) The

Legal Understanding of Slavery: The Historical to the Contemporary, 2012.

A number of examples help to shed light on this last distinction and clear up the confusion
arising from disparate definitions based on pathways to enslavement as opposed to the condition
of slavery itself. Imagine there are four women all of whom are experiencing the following
conditions. All four women are held under the physical control of another person against their
will, this control prevents them from exercising agency or leaving the place where they are held.
The person in control manages the activities of each woman, and they are required to undertake
activities that benefit the person who controls them. The control is such that any of the women
can be transferred to another individual against her will, or destroyed by the person who controls
them. All of the women experience intermittent rape at the hands of the person controlling them
as well as by other men as allowed by the person who controls them.
What is telling is that while few would disagree that these four women are enslaved based on
this description, some commentators would argue that some of these women are not in slavery
when the means by which they were enslaved are introduced. Now let us assume that the first
woman arrived at this condition after being falsely arrested, fined, and then handed over to the
person who controls her to work off her fine in an open pit mine in Eastern Congo. The second
woman, seeking a better life, paid a smuggler to help her enter another country and upon arrival
was handed over to, and then sexually assaulted by, the person who would control her, who also
told her that she owed a sum of money in addition to what she paid to be smuggled, and was then
placed in a brothel in the United States owned by the person controlling her where she was sold
for sex. The third woman arrived in the condition of control when her husband took a loan and
placed himself and his family as collateral against that loan, the family continued in the
agricultural work in India they had done previously but which now profited the person who
controlled them. The fourth woman entered this situation as a child when her parents were
offered the opportunity of a placement, a sort of apprenticeship, for their child in the family of
the person who would come to control her in Haiti.
There are proponents of specific definitions of slavery that rely on reference to mechanisms of
acquisition or cultural context that would deny that these women are enslaved. And yet, there are
three important points to make about these four women: 1. These are not hypothetical examples;
all of these are real women, living today.10 2. Most would recognize the situations of each of
these women as constituting slavery. 3. The path or mechanism by which they arrived at this
condition is important in understanding their situation but is not relevant in the determination of
whether they are slaves.
This last point is especially important. For example, in the case of the first woman some
academic commentators, as well as members of local power elites, and specifically the leaders of
the rebel groups illegally operating the mines of Eastern Congo and exercising control over each
10

These cases are drawn from the files of the Program Team of Free the Slaves, and from their partner
organizations in Congo, India, Haiti, and the United States. The identities of these survivors are concealed in order
to protect them. However, with regard to open-pit mining in the Democratic Republic of the Congo, see Free the
Slaves, The Congo Report: Slavery In Conflict Minerals, 2011; for considerations of a case of being smuggled then
forced into prostitution see United States v. Francisco Cortes-Meza and Juan Cortes-Meza, United States Court of
Appeals (Eleventh Circuit), D.C. Docket No. 1:08-cr-00055-RWS-GGB-3. 1 February 2011; with reference to
agricultural workers and collateral debt, see Krishna Prasad Upadhyaya, Poverty, Discrimination and Slavery: The
Reality of Bonded Labour in India, Nepal and Pakistan, (Anti-Slavery International) 2008; finally with regard to the
placement of children in more affluent homes, see United Nations, General Assembly, Human Rights Council,
Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences,
Gulnara Shahinian, Addendum: Mission to Haiti, UN Doc. A/HRC/12/21/Add.1, 4 September 2009.

of the first women as slaveholders, would argue that the she is not enslaved but simply in a
situation of peonage, a legitimate exercise of legal control over miscreants. In the case of the
second woman, some commentators, and typically criminals who engage in human trafficking
for commercial sexual exploitation, would argue the second woman was not in slavery because
she was in a situation of debt obligation, while other commentators would argue that she was not
a slave but a sex trafficking victim. In the case of the third woman some commentators, and
typically the slave masters of India, would argue that she was not in slavery because this form of
hereditary debt bondage is not slavery but a traditional contracting of obligated labor. And some
commentators, and typically the adults in the households exploiting her labour and using her
sexually, would argue that the fourth woman was not in slavery because she was in fact
benefiting from a traditional practice of placement that allows the poor access to alternative
ladders of opportunity.
Put simply, it is illogical to name the mechanism of acquisition of a person as an essential
component in defining whether a person is in slavery. Slavery is a status or condition, not the
means by which a person is removed into that state or condition of control.
However, for most academics and practitioners turning to Bales sociological definition of
slavery leaves us with a dilemma: on the one hand it provides us with the nearest approximation
to the lived experience of a slave today, and it serves well as a methodological tool supporting
predictive validity in the social scientific study of slavery, but it is not legally binding; on the
other hand, the failure, more generally to engage with the legal definition has made it redundant
as an anti-slavery tool within the rule of law.
We believe that there is a way out of the dilemma; and it is here that our earlier discussion of
possession comes into play. It was not realised until recently, when property lawyers sat down
with slavery experts both historians and contemporary scholars that, not only could the 1926
definition be read in a such a manner as to be consistent with what would be considered in social
scientific terms as slavery, but that such a reading was, in fact and in law, internally consistent
with a reading of the legal definition.11
That reading turns on the understanding that possession is about control, which is very much
the orthodoxy in property law. In his seminal piece, now more than fifty-years old, Antony
Honor wrote that possession is the foundation on which the whole superstructure of ownership
rests.12 Thus, when considering the legal definition and seeking to apply it to a case of
contemporary slavery, one should look for the exercise of control over a person tantamount to
possession. Possession is the sine qua non of slavery it is, as in the case of illegal drugs, what
judges and prosecutors should focus upon. Why? Because possession is the most important of
the in the language of definition powers attaching to the right of ownership. This is so as the
other powers do not catch the essence of slavery unless control tantamount to possession is
present.
In the language of property lawyers, ownership entails a number of rights, thus there is the
right to walk about the field, to till it, to allow others to till it, to sell it, to give it away,
11

The property lawyers and slavery experts were brought together as a Research Network, as a result of funding
provided by the British Arts & Humanities Research Council. Research Network consists of Jean Allain, Kevin
Bales, Annie Bunting, John Cairns, William M. Carter Jr., Holly Cullen, Seymour Drescher, Stanley Engerman,
Paul Finkelman, Bernard Freamon, Allison Gorsuch, Richard Helmholz, Robin Hickey, Tony Honor, Aidan
McQuade, Orlando Patterson, James Penner, Joel Quirk, Jody Sarich, and Rebecca Scott.
12
A.M. Honor, Ownership, A.G. Guest (ed) Oxford Essays in Jurisprudence, 1961, p. 113.

and so forth.13 Yet, as Honor makes plain, what underlies these rights is possession. You
cannot sell a thing or profit from it to the exclusion of others unless you possess it. And
possession in law ultimately turns on demonstrating control.
The same can be said about contemporary slavery. There would be no case to answer over a
charge of slavery, in a case where a manager determines within the limits of the law what,
where, and how her employees are deployed. This is so as the essential ingredient of possession
is lacking. Consider the opposite now: the only manner to buy or sell a person is through
effecting control tantamount to possession as a precondition. That is a banal way of saying that,
in a typical case of the selling of a slave, the enslaved has been beaten, often raped, until they can
no longer resist being the object of such a transaction. Slavery, after all, is not pretty; it is nasty
business where control tantamount to possession is achieved through violence. In such
instances, personal liberty is lost; the free will of the person has been taken away, transferred
from the slave to the owner the slaveholder. Once this is achieved, the slave can then be
exploited, their labour used, their sexual autonomy disregarded, all at the whim of the person
who now possess the enslaved.
We have already mentioned that in a case of slavery, once a person has established control
tantamount to possession, they can manage them or sell them. These, along with possession, are
three prime examples of the exercise of the powers attaching to the right of ownership, which
are central to the legal definition of slavery. Further examples of such powers are the use, profit,
transfer of a person, as well as the treating of a person as though they were disposable. This
reading is an important breakthrough which gives fundamental traction to the law as an antislavery tool. Property lawyers recognise that a proper reading of the exercise of the powers
attaching to the right of ownership speaks to the contemporary understanding of what constitutes
slavery in fact. Those leading property scholars and the slavery experts who first sat down
together in Italy and later in the United States give pay to their reading of the legal definition of
slavery by developing the Bellagio-Harvard Guidelines on the Legal Parameters of Slavery.14
While these Guidelines unpack the various powers attaching to the right of ownership just
mentioned, they recognise fundamentally 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.
From the 1930s until recently, the general outlook towards the legal definition of slavery has
been a negative one: why it is not applicable to cases of slavery. Spurred on by determination of
the High Court of Australia, that the legal definition was applicable to contemporary cases of de
facto slavery; a group of property scholars and experts in slavery set about unpacking those
powers attaching to the right of ownership. Much to their surprise, there is no true gap existing
between a legal reading of ownership and the factual circumstances of contemporary
13

William Markby, Elements of Law, 1905, para. 307.

The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery are reproduced here and are available at:
http://www.law.qub.ac.uk/schools/SchoolofLaw/Research/HumanRightsCentre/Resources/BellagioHarvardGuidelinesontheLegalParametersofSlavery/#d.en.286505..
14

enslavement. As such, what is left to be done is to harness the latent potential of the accepted
definition of slavery and simply hold people responsible for enslaving others.
The neo-abolitionist era holds out this promise, as States are in the midst of moving from
having slavery on the books to dealing with slavery in the courtroom. For many countries, this is
novel. With no established jurisprudence in the area and having to rely, in the main, on
constitutional provisions which simply read: No one shall be subject to slavery; judges and
prosecutors will need to seek to understand what, in law, slavery means. Inevitably they will
look to the definition established in international law. In coming together and developing the
Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, we have provided an
internally consistent reading of that definition within its property paradigm that fundamentally
reflects the lived experience of contemporary slaves. As such, we provide the most coherent
reading of the legal definition of slavery, one that gets us beyond the dilemma of having to
choose between the legal definition and a definition which reflects reality. As a result, the
definition provides the type of legal certainty which is fundamental to any prosecution of
contemporary slavery: within an ordinary reading of its terms, based as it is on a property
paradigm, it captures the factual reality of slavery.

Bellagio-Harvard Guidelines on the Legal Parameters of Slavery

We, the Members of the Research Network on the Legal Parameters of Slavery,
Recognizing that there has been a lack of legal clarity with regard to the interpretation of the
definition of slavery in international law;
Conscious that the starting point for understanding that definition is Article 1(1) of the 1926
Slavery Convention which reads: 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;
Recalling that this definition is reproduced in substance in Article 7(a) of the 1956
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and
Practices Similar to Slavery;
Also noting that the 1926 definition of slavery is once again reproduced in substance in the
definition of enslavement found in Article 7(2)(c) of the 1998 Statute of the International
Criminal Court and developed in more detail in the secondary legislation of the Court, in its
Elements of Crimes;
Bearing in mind the provisions in international human rights law regarding slavery within the
1948 Universal Declaration and 1966 International Covenant on Civil and Political Rights; as
well as the provisions regarding slavery in regional human rights conventions of the African,
European, and Inter-American systems;
Considering the inclusion of slavery as an enumerated type of human exploitation in both the
2000 United Nations Palermo Protocol on Trafficking in Persons and the 2005 Council of
Europe Convention on Action against Trafficking in Human Beings;
Mindful of the pronouncements and case-law related to slavery of international, regional and
domestic courts;
Having met to consider the issue at the 2010 symposium entitled: The Parameters of Slavery at
the Rockefeller Foundations Bellagio Conference Centre in Bellagio, Italy; having further
deliberated in 2011 at a meeting under the auspices of the Harriet Tubman Institute for Research
on the Global Migrations of African Peoples, York University, Canada; and came together once
more at a 2011 symposium entitled: The Legal Parameters of Slavery: Historical to the
Contemporary at Harvard University, under the auspices of the Charles Hamilton Houston
Institute for Race and Justice, Harvard Law School; the Harvard Sociology Department; the
W.E.B. DuBois Institute;
Recommend the following Guidelines related to the legal parameters of slavery:

Guideline 1 The Legal Definition

9

The legal definition of slavery is found at Article 1(1) of the 1926 Slavery Convention, which
reads: 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.

Guideline 2 The Exercise of the Powers Attaching to the Right of Ownership

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.

Guideline 3 Possession is Foundational to Slavery

Where there is a right of ownership in respect of a thing, ownership implies a background
relation of control. That control is the power attaching to the right of ownership known as
possession.
Possession is foundational to an understanding of the legal definition of slavery, even when the
State does not support a property right in respect of persons. To determine, in law, a case of
slavery, one must look for possession.
While the exact form of possession might vary, in essence it supposes control over a person by
another such as a person might control a thing. Such control may be physical, but physical
constraints will not always be necessary to the maintenance of effective control over a person.
More abstract manifestations of control of a person may be evident in attempts to withhold
identity documents; or to otherwise restrict free movement or access to state authorities or legal
processes; or equally in attempts to forge a new identity through compelling a new religion,
language, place of residence, or forcing marriage.
Fundamentally, where such control operates, it will significantly deprive that person of his or her
individual liberty for a period of time which is, for that person, indeterminate.
Cases of slavery are to be distinguished from those where, though there has been control
exercised, it does not constitute control tantamount to possession, such as where employers make
legitimate decisions about the management of workers.
Possession is foundational in that, not only is it a power attaching to the right of ownership, it
also creates the factual conditions for the exercise of any or all of other powers attaching to the
right of ownership, such as those set out in Guideline 4.

Guideline 4 Further Examples of Powers Attaching to the Right of Ownership

10

Where a person controls another such as he or she would control a thing owned, such possession
makes possible the exercise of any or all of the powers attaching to the right of ownership.
Correlatively, the exercise of any or all of the powers attaching to the right of ownership may
serve to indicate the presence of control of a person tantamount to possession, and so provide
evidence of slavery.
The following are further examples of powers attaching to the right of ownership:
a) Buying, Selling or Transferring a Person
Buying, selling or otherwise transferring a person may provide evidence of slavery. Having
established control tantamount to possession; the act of buying, selling or transferring that
person will be an act of slavery.
Evidence of slavery may also be found in similar transactions, such as bartering, exchanging,
or giving or receiving a person as a gift, where control tantamount to possession has been
established.
b) Using a Person
Using a person may provide evidence of slavery. Having established control tantamount to
possession; the act of using that person will be an act of slavery.
Evidence of such use of a person may include the derived benefit from the services or labour
of that person. In such cases, a person might be used by working for little or no pay, utilised
for sexual gratification, or used by providing a service.
c) Managing the Use of a Person
Managing the use of a person may provide evidence of slavery. Having established control
tantamount to possession; the act of managing that person will be an act of slavery.
Evidence of such management of the use of a person may include direct management such as
a brothel owner delegating power to a day manager in a situation of slavery in the context of
sex work.
d) Profiting from the Use of a Person
Profiting from the use of a person may provide evidence of slavery. Having established
control tantamount to possession; the act of profiting from the use of that person will be an act
of slavery.
Evidence of profiting from the use of a person may include cases where a person is
mortgaged, lent for profit, or used as collateral.
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Evidence of profiting from the use of a person may also include making money or deriving
any other kind of income or benefit from the use of the person. Such as the use of an
agricultural worker in a situation of slavery, where the profit from the picking of a crop is
taken or received by another whether in the form of wages or of the harvest.
e) Transferring a Person to an Heir or Successor
Transferring a person to an heir or successor may provide evidence of slavery. Having
established control over a person tantamount to possession; the act of willing that person to a
child or other heir or successor will be an act of slavery.
Evidence of such transferring of a person may include a case of inheritance where a woman,
on the death of her husband, is deemed to be inherited by another person.
Evidence of such a transferring of a person may also include the conveying of a status or
condition of a person to that of a successive generation, such as from mother to daughter.
f) Disposal, Mistreatment or Neglect of a Person
Disposing of a person following his or her exploitation may provide evidence of slavery.
Having established control over a person tantamount to possession; the act of disposing of a
person will be an act of slavery.
Mistreatment or neglect of a person may provide evidence of slavery. Having established
control tantamount to possession, such disregard may lead to the physical or psychological
exhaustion of a person, and ultimately to his or her destruction; accordingly the act of
bringing about such exhaustion will be an act of slavery.
Evidence of such mistreatment or neglect may include sustained physical and psychological
abuse, whether calculated or indiscriminate; or the imposition of physical demands that
severely curtail the capacity of the human body to sustain itself or function effectively.

Guideline 5 Making a Determination as to whether Slavery Exists

The exercise of any or all of the powers attaching to the right of ownership just considered shall
provide evidence of slavery, insofar as they demonstrate control over a person tantamount to
possession.
Accordingly, in determining whether slavery exists in a given case, it is necessary to examine the
particular circumstances, asking whether powers attaching to the right of ownership are being
exercised, so as to demonstrate control of a person tantamount to their possession.
In evaluating the particular circumstances to determine whether slavery exists, reference should
be made to the substance and not simply to the form of the relationship in question.
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The substance of the relationship should be determined by investigating whether in fact there has
been an exercise of one or more of the powers attaching to the right of ownership. This will
include a determination as to whether control tantamount to possession is present.

Guideline 6 Expropriation
Ordinarily exclusion from expropriation or security of holding would be deemed a power
attaching to the right of ownership. However, as the State generally does not support a property
right in persons, a negative obligation against the State generally no longer exists.
However, the State has at minimum the positive obligation to bring about the end of either the
status or condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised.
The State may have further positive obligations with regard to the prohibition against slavery on
the basis of domestic law as well as regional or international instruments.

Guideline 7 Terminology
The term slavery has often been utilised to describe circumstances that go beyond the legal
definition as established by the 1926 Slavery Convention.
In law, only slavery and institutions and practices similar to slavery, which is often
abbreviated to practices similar to slavery have standing and are defined in international law
via the 1926 Slavery Convention and the 1956 Supplementary Convention.

Guideline 8 Distinction between Slavery and Forced Labour

The 1926 Slavery Convention recognises that forced labour can develop into conditions
analogous to slavery.
Although forced or compulsory labour is defined by the 1930 Forced Labour Convention as all
work or service which is exacted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily; forced labour will only amount to
slavery when, in substance, there is the exercise of the powers attaching to the right of
ownership.
Slavery will not be present in cases of forced labour where the control over a person tantamount
to possession is not present.

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Guideline 9 Distinction between Slavery and Institutions and Practices Similar to

Slavery
Article 1 of the 1956 Supplementary Convention recognises that the institutions and practices
similar to slavery, that is: debt bondage, serfdom, servile marriages, or child exploitation; may
be covered by the definition of slavery contained in article 1 of the Slavery Convention of
1926.
The distinction between these servile statuses as defined by the 1956 Supplementary Convention
in the following terms and slavery is that slavery is present where in substance there is the
exercise of the powers attaching to the right of ownership.
It should be emphasised that slavery will only be present in cases of such institutions and
practices similar to slavery where control over a person tantamount to possession is present.
The following are the conventional servitudes set out in the 1956 Supplementary Convention on
the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery:
(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of
his personal services or of those of a person under his control as security for a debt, if the
value of those services as reasonably assessed is not applied towards the liquidation of the
debt or the length and nature of those services are not respectively limited and defined;
(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;
(c) Any institution or practice whereby:
(i) A woman, without the right to refuse, is promised or given in marriage on payment of
a consideration in money or in kind to her parents, guardian, family or any other person
or group; or
(ii) The husband of a woman, his family, or his clan, has the right to transfer her to
another person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited by another person;
(d) Any institution or practice whereby a child or young person under the age of 18 years is
delivered by either or both of his natural parents or by his guardian to another person,
whether for reward or not, with a view to the exploitation of the child or young person or of
his labour.

Guideline 10 When Slavery and Lesser Servitudes are Present

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Accepting that both slavery and lesser servitudes such as forced labour or institutions and
practices similar to slavery may be found in substance in a particular circumstance; the manner
to proceed is by making reference to that substance and not simply to the form, and first ask
whether there has been an exercise of the powers attaching to the right of ownership. If so, then
the more serious offence of slavery is present.
If not, reference should be made to the legal definition of the lesser servitude which corresponds
in substance to the particular circumstance in question.

Adopted on this day, 3 March 2012, by the Members of the Research Network on the Legal
Parameters of Slavery.

Jean Allain, Queens University, Belfast

Kevin Bales, University of Hull, and Free the Slaves
Annie Bunting, York University
John Cairns, University of Edinburgh
William M. Carter Jr., Temple University
Holly Cullen, University of Western Australia
Seymour Drescher, University of Pittsburgh
Stanley Engerman, University of Rochester
Paul Finkelman, Albany Law School
Bernard Freamon, Seton Hall University
Allison Gorsuch, Yale University
Robin Hickey, Durham University
Richard Helmholz, University of Chicago
Antony Honor, University of Oxford
Aidan McQuade, Anti-Slavery International
Orlando Patterson, Harvard University
James Penner, University College, London
Joel Quirk, University of Witwatersrand
Jody Sarich, Free the Slaves
Rebecca Scott, University of Michigan

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