Excerpted From: Glenys P. Spence, Echoes of the Zong: Confronting Legal Realism in the Arguments for Reparations from the Atlantic Slave Trade and Modern-day Human Trafficking, 46 Fordham International Law Journal 425 (April, 2023) (215 Footnotes) (Full Document)


GlenysPSpenceThis Article examines different legal and philosophical principles in the historical development of chattel slavery law and its relationship to contemporary jurisprudence that informs their legal application to modern day slave labor in the form of human trafficking, which includes child labor. The analysis will examine the laws that were applied to chattel slavery in England and her colonies through the lens of some seminal slavery cases to unearth the tyranny of interpretation in human trafficking reparations and liability claims under the current Supreme Court jurisprudence and the Alien Tort Statute (“ATS”). The analysis will take into consideration the historical and theoretical developments, problems with court implementation and application, and the procedures and rules regarding liability for modern-day forms of slavery viewed through the historical lenses and practice of chattel slavery and commercial law.

In the British slavery cases, natural law principles and commercial law collided within the space surrounding the debate on the legality of the transatlantic slave trade. Lord Mansfield's opinion in the 1800 case of Somerset v. Stewart, where natural law principles seemed to triumph over property interests, was later subjugated in The Zong Case in which the murder of African slaves was compared to “horses thrown overboard.” Principles of natural law were at the heart of the Somerset decision and helped ignite the abolitionist movement. But the Zong opinion provided commercial justification for the continuation of the slave trade and fueled the abolitionists' cause. This Article revisits these cases to demonstrate how the commercial interests that animated the transatlantic slave trade is still the driving force that fuels modern-day human trafficking in the global supply chain. This Article also explores the crime of human trafficking within the current legal framework to reveal how the current patchwork of laws mirror the dualities at work in chattel slavery jurisprudence. The law, then, still rests on old foundations strengthened by commercial and philosophical alibis.

The official abolition of the slave trade did not fully end slavery and the issue of transatlantic slave trade's reparations is not confined to the United States. The European powers, including Great Britain, should not escape liability for this heinous crime against humanity. The historical record shows that European Powers provoked the enslavement of Africans for economic gain. Indeed, the European demand for sugar and other commodities fueled and prolonged the trade in African bodies. In addition to providing free labor, the slave trade bolstered the British efforts to maintain order in its Caribbean colonies and to retain its hegemony over European foes in the region. Notwithstanding laws abolishing the trade on paper, European powers continued to develop their economies fueled on slave labor in the Caribbean, Latin and Central America, and the United States. Although the slave trade ended, European powers continued to wield power over the Caribbean inhabitants through imperialism and colonialism vehicles. Many years after the slave trade was outlawed, slave labor in the American South, Brazil, and the Caribbean produced cotton and sugar for consumption in Britain and Continental Europe, although British abolitionists decried the products use.

Some of the same drivers in the extra-legal practice of slavery can be found in the current global economy. Today, individuals are being forced to work in inhumane conditions to satiate desires for luxury items and commodities such as cocoa, coffee, and seafood. In October 2019, thirty-nine Chinese citizens were discovered in a refrigerated truck trailer in Essex, United Kingdom. One news report stated the deaths of these individuals was the worst tragedy in the United Kingdom caused by human trafficking. The British Prime Minister, Boris Johnson, vowed to hold the perpetrators responsible. Prime Minister Johnson's reaction to this tragedy, and the greater crisis has dawdled, as human rights scholars have tried to alert the world to the resurgence of chattel slavery in the global supply chain for several years.

This discovery is not the first time in the modern era that human beings were transported to England, the United States, and some Middle Eastern countries for different forms of labor. Our own State Department estimates that thousands of children in the Ivory Coast's cocoa industry work under the worst forms of child labor. The practice of human trafficking challenges domestic and international law. Specifically, these heinous practices implicate the global shipping industry, which falls under domestic, maritime jurisdiction, and international law. The time has come for the international legal system to confront the resurgence of slavery in the global supply chain.

According to the latest statistics from the International Labor Organization (“ILO”), at any given time an estimated 49.6 million people globally are in modern slavery, which includes 27.6 million in forced labor. The global shipping industry is particularly susceptible to the risk of modern slavery given that seafarers often come from nations with human rights, labor rights, and corruption challenges. The fragmentation of regulatory oversight among flag states and the practical limitations on effective enforcement of acceptable living conditions on vessels exacerbate the problem.

Like the transatlantic slave trade, current laws are impotent to wipe out these crimes against humanity. Part of this legal inertia can be attributed to the United States Supreme Court's reluctance to propound liability onto multinational corporations. The Court's current reluctance to offer victims of human trafficking redress under the ATS harkens back to when the law justified and sustained the illegitimacy of the transatlantic slave trade.

Despite the plethora of international human rights legal instruments such as treaties and US domestic legislation like the Traffic Victims Protection Act and the British Modern Slavery Act, human beings are still being trafficked or forced into peonage around the globe and reaching US shores, either through our immigration labor laws or by the effects of forced labor in the global supply chain. The ILO asserts that forced labor is “a serious violation of fundamental human rights and labor rights, the exaction of forced labor is a criminal offence.” But the philosophy of law that helped sustain and legitimize the slave trade for centuries remains central to jurisprudence regarding reparations and the resurgence of slavery-like practices in modern human trafficking and forced labor.

The Author holds the view that when enforcement of the law comes into conflict with commercial interests, natural rights theory is often subjugated in favor of private interests. Maintaining harmony in international trade coupled with the policies of economic liberalization counsel against holding corporations liable for these human rights violations. Indeed, this same view justified and legitimized chattel slavery in the transatlantic slave trade. Viewed in this light, it is not surprising to see the lines running from chattel slavery to modern day slavery in the global supply chain.

The focus of this Article is how to address and combat this problem by looking through jurisprudential relics, which sustained the transatlantic slave trade. The Article will revisit two seminal Slavery cases that were decided ten years apart to show how the commercial interests that animated the transatlantic slave trade is still the driving force that fuels modern-day human trafficking in the global supply chain. (See the map below).

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The concept of human rights resonates throughout modern international law. Actors in the international legal system have agreed through treaties and customs that certain rights are inalienable and, as such, constitute peremptory norms. Nevertheless, these truisms are frequently degraded under concepts of jurisdictional presumptions against extraterritoriality or state sovereignty. The abolition of slavery is among the list of these agreements.

In admiralty law, slavery ranks high on those crimes that are considered hostis humanis generis. The abolition of Western slavery bolstered the concept that the practice is so evil that any nation should have the legal right to prosecute this crime. In modern times, however, the resurgence of slavery is often dismissed on jurisdictional grounds and claims of territorial sovereignty. This results in victims being left without redress and their perpetrators are able to go unpunished and free to continue the trade. If slavery, like piracy, is considered as hostis humanis generis, then any nation would have the right to prosecute perpetrators and obtain redress for human trafficking victims.

The states' hesitation to prosecute human traffickers rests on the flawed premise first proposed by late 18 and 19 century thinkers like David Hume, John Stuart Mill, Von Savigny, Jeremy Bentham and Edmund Burke, that natural rights do not emanate from “real law” but from some “unreal metaphysical phenomenon.” Even today, international law is viewed by many as a phantom law. From John Austin with his Hobbesian pronouncement that the only law is that of the sovereign to the rise of Marxism. This appropriation of human rights by the law of sovereignty has served to degrade the concept of human rights as natural rights.

The specter of human rights in the 1945 Charter of the United Nations and the 1948 Universal Declaration of Human rights has its genesis in this philosophical hijacking of human rights. These treaties do not offer any concrete solutions to the problem of slavery in the 21 century. Unless human rights violations like human trafficking and modern-day slavery are grounded in the principle of natural rights, which constitutes these crimes as hostis humanis generis, then these crimes will continue and the argument for redress or reparations will fail under the dual weights of territorial sovereignty and commercial rationalizations.

Like the global supply chain today, various European nations have seized upon Africans as the cheapest and most expedient labor supply to meet the demands of mining and tropical agriculture. In modern times, however, this resurgence of slavery or forced labor in the global supply chain is dismissed on jurisdictional grounds just like the 18 and 19 century slave cases. Victims are left without redress, while the perpetrators go unpunished free to continue the practice. If slavery, like piracy is considered among the crimes against the law of nations in the international legal system, then under the principle of universal jurisdiction which was pivotal in the Amistad case, any nation should have jurisdiction over the perpetrators of human trafficking.

The Supreme Court's position that corporations cannot be sued under the ATS is as absurd today as Mansfield's position in the 1700s that an African who is free on British soil can be forced onto a ship sitting in a British port and sold as a slave bound for a British plantation in Jamaica because the law of England did not apply to her colonies. The distinctions based on extraterritoriality are as illogical today as they were back then. An American corporation should not be able to violate American human rights laws in another country when the action is illegal in the United States or within its maritime jurisdiction.

The Supreme Court's interpretation of the ATS defies logic. Slavery and other forms of indentured servitude are a violation of the Thirteenth Amendment; these practices violate customary international law and a host of international treaties such as the Convention to Suppress the Slave Trade and the Abolition of Slavery. In the maritime commons, the Law of the Sea Convention and the 1958 High Seas Convention recognize the right of the flag state to prevent and punish those who transport victims of slavery. A warship on the high seas may board any foreign nongovernmental vessel if there are reasonable grounds to believe such vessel is engaged in the slave trade. Finally, Congress revised TVPA to extend its jurisdiction to US Maritime Jurisdictions and territories, including US foreign embassies to provide redress to foreign victims of human trafficking at these locations.

Even if the ATS did not specify slavery as a crime against the law of nations in 1789, the law is not static. To confine the ATS only to piracy and acts against ambassadors is to mummify the statute. The statute should not be interpreted to punish only crimes against the sovereign but to tort violations of the law of nations-crimes against individuals by other individuals like corporations. Today, the enumerated crimes of piracy and wrongs against ambassadors are hardly litigated by private persons. When piracy is litigated, the courts decide these cases largely under the US piracy statute. But for human trafficking, the only positive law available is the ATS. The ATS is sui generis in that the crimes contemplated either arose outside the United States or had effects in the United States. In this vein, inquiries into whether the ATS requires an extraterritorial nexus are unwarranted and the extraterritorial reach of the ATS is axiomatic.

Today, the trafficking of humans today for sexual exploitation, forced labor or services, removal of organs are all crimes against the law of nations. Thus, various US laws and international treaties, such as the Anti-Trafficking treaty, all require states in the international system to take national and international measures to prevent these crimes. The EU as well as Britain created laws to protect these victims and to hold corporations and other individuals liable for such practices.

Some of our founding fathers knew that slavery was repugnant to natural law and were guided by enlightenment thinkers like Montesquieu. These Founders contemplated slavery as a crime against the law of nations in 1789 and so should the courts today. By the 1760s, Montesquieu had placed African slavery into the Enlightenment agenda. Adam Smith's two books, the Wealth of Nations and the Theory of Moral Sentiments, condemned African slavery. So did John Wesley, who by 1774, condemned every slave holder and slave merchant to eternal damnation.

The crime of human trafficking within the current US legal framework reveals how the current patchwork of laws mirror the dualities at work in chattel slavery jurisprudence. A challenge for the rule of laws is how to reconcile the vagaries of US law and international human rights law to bring redress to victims. The presumption against extraterritoriality should not be read into Congress' intent under the ATS or TVPRA.

Justice Alito's interpretation of the ATS is correct and should be countenanced by courts going forward. Under Justice Alito's view, the application of the ATS does not turn on the question of extraterritoriality, but on whether the aiding and abetting conduct that form the basis of the petitioner's complaint is a “specific, universal, and obligatory” international law norm. Justice Alito's position is that the case should be remanded to avoid a holding that translates into general corporate immunity. General, corporate liability that is premised on aiding and abetting actions are analyzed either under a “purposeful” or “knowingly” standard. But a reckless disregard standard should be applied as well. Corporations should not close their eyes to these human rights violations. As Justice Alito opined, the question is whether domestic corporations are immune from liability under the ATS. If a particular claim may be brought under the ATS against a natural person who is a US citizen, a similar claim may be brought against a domestic corporation.

The interpretation should extend Congress' reach to cases involving foreign actors under the rubric of international law and jus cogens jurisprudence. It is only through the United States' long reach can victims gain access to U.S. courts and only then can we begin to combat the resurgence of this evil in the modern age.

Glenys Spence, J.D., LL.M., Admiralty and Maritime Law, Assistant Professor of Law, Dwayne O. Andreas, School of Law (Barry University).