Property and the Definition of Slavery

Allain, Jean; Hickey, Robin

doi:10.1017/s0020589312000450

Cited by 32 publications

(15 citation statements)

References 6 publications

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“…20 Thus, it is considered to be the agreed definition of slavery in international law (Bunting and Quirk 2017, pp. 9-10;Allain and Hickey 2012). 21 The COIE proceeded to consider relevant authoritative pronouncements of the Trial and Appeals Chambers of the International Criminal Tribunal for the former Yugoslavia ("ICTY").…”

Section: Slavery In Eritrea: the Findings Of The Un Commission Of Inquiry On Human Rights In Eritreamentioning

confidence: 99%

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Palacios-Arapiles

2021

Laws

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Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of “slavery” have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how “slavery,” “servitude” and “forced labour” under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of “slavery” and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

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Section: Slavery In Eritrea: the Findings Of The Un Commission Of Inquiry On Human Rights In Eritreamentioning

confidence: 99%

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Palacios-Arapiles

2021

Laws

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“…8 Likewise, in recognised slave societies throughout history, slavery has often existed primarily as a legal status wherein property rights could be exercised over a person and upheld through legal or equivalent customary institutions. 9 This reflects a global orthodoxy in which property frameworks-those legal institutions that regulated slavery for centuries-are the lens through which the practical and theoretical boundaries of the phenomenon of (chattel) slavery are to be viewed (Allain and Hickey 2012). Freamon (2012, p 41) highlights that the basic definition of slavery in Islamic law was 'firmly rooted in property concepts while haltingly recognizing the humanity of the slave'.…”

Section: Conceptualising De Jure Slaverymentioning

confidence: 99%

Collapsing the Boundaries Between De Jure and De Facto Slavery: The Foundations of Slavery Beyond the Transatlantic Frame

Schwarz

Nicholson

2020

Hum Rights Rev

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The identification of contemporary forms of slavery is often problematically demarcated by reference to transatlantic enslavement as the definitive archetype. Such an approach overlooks other historic slaveries and neglects the totality of the maangamizi—the African holocaust. This article addresses the problematics of positioning the transatlantic system as the paradigm and unpacks the constituent elements of de jure slavery to construct an understanding of slavery as a condition as well as a status. By identifying the core features of de jure chattel slavery through time, this paper displaces the assumption that legal status is determinative, giving meaning to the concept of slavery in the contemporary world.

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“…These counterexamples also pose difficulty for the assertion of Allain and Hickey (2012, p. 932) that “slavery occurs where one person controls another as he would control a thing possessed”. A hint of a solution can be found in a statement by Allain and Hickey (2012, p. 932; emphasis added): “ultimately the owner is the person calling the shots, the person who gets to manipulate and control the resource to meet his own ends ”. Perhaps what distinguishes the slave from the dependent child is that the slave is exploited for the master's own ends.…”

Section: Extant Definitions Of Slaverymentioning

confidence: 99%

On the Definition of Slavery

Rota

2020

Theoria

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A number of non‐equivalent definitions of slavery have been offered by historians, sociologists, bodies of international governance and legal scholars. None is clearly adequate. Here I review extant definitions of slavery found in or suggested by Lovejoy, Patterson, Honoré, Bales, Ingram and the League of Nations 1926 Slavery Convention, and argue that each is subject to counterexample. I then attempt to formulate and defend a more adequate definition, one focusing on consent, control, and the intentions of the slaveholder, and relevant for the present as well as the past.

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Property and the Definition of Slavery

Cited by 32 publications

References 6 publications

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Collapsing the Boundaries Between De Jure and De Facto Slavery: The Foundations of Slavery Beyond the Transatlantic Frame

On the Definition of Slavery

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