II. “Neo-Abolitionism” Depends on a Comparison of “Old” and “New” Slavery

One of the most common slogans of today's new abolitionist movement is that “There are 27 million slaves in the world today … more than at any time in human history.”Footnote ¹⁶ This figure comes from Disposable People, by Kevin Bales, the president of the nongovernmental organization (NGO) Free The Slaves. Sometimes this is stated in terms of there being twice as many slaves in the world today as at the height of the Atlantic slave trade, or even double the number of slaves today as that of all of the slaves transported from Africa via the Atlantic slave trade. Another comparative theme is that today's slave is “disposable,” because the price of a slave is only $90, whereas the price in today's dollars of a slave in 1850 would be $40,000.Footnote ¹⁷ All of these comparisons are designed to maximize the horror of contemporary slavery.

Legality is also key to this comparison. Kevin Bales, one of the leaders of the new abolitionist movement, begins his book, Disposable People, by asserting that “slavery is not a horror safely consigned to the past.”Footnote ¹⁸ He goes on to draw out the comparison: “In the past, slavery entailed one person legally owning another person, but modern slavery is different. Today slavery is illegal everywhere, and there is no more legal ownership of human beings.”Footnote ¹⁹ Not only is modern slavery more pernicious because legal ownership is avoided, but slaves’ bodies are disposable rather than worthy of maintenance.Footnote ²⁰

Karen Bravo has examined “the uses made of the transatlantic slave trade in contemporary anti-trafficking discourse.”Footnote ²¹ “Often the implicit or explicit hypothesis appears to be that modern trafficking in humans is more widespread and awful, and involves greater victimization and human degradation than did the transatlantic slave trade.” As she argues, this discourse has often been “superficial, counterproductive, and harmful.”Footnote ²²

The division between “old” and “new” slavery also posits a clean break between slavery that existed only in the deep past, and something that has emerged recently, as opposed to practices of coercive labor that have taken different forms in different places over the last several centuries, but have rarely disappeared entirely.Footnote ²³ For example, George W. Bush expressed this view when he declared, “Nearly two centuries after the abolition of the transatlantic slave trade, and more than a century after slavery was officially ended in its last strongholds, the trade in human beings for any purpose must not be allowed to thrive in our time.”Footnote ²⁴ As Bravo notes, repeated references to one's own country's abolition of slavery, followed by mention of the “return” of slavery today, in the passive voice, reinforces the “denial of any complicity … in slavery's reemergence” or even its continuation in other guises, coupled with “condemnation of developing countries” that are responsible for modern slavery.Footnote ²⁵ This “use of the transatlantic slave trade analogy denies the reality that transatlantic slavery did not end with abolition,” writes Bravo, noting the various forms of forced labor that persisted in the United States, including peonage and convict leasing under Jim Crow.Footnote ²⁶

A better historical analogy than the transatlantic slave trade for contemporary practices of “human trafficking” may actually be the campaign against “white slavery” in the late nineteenth and twentieth centuries. The moral panic about white women being “trafficked” across state lines for the purposes of prostitution led to the passage of the Mann Act; the same kind of sex panic has led to the preoccupation of many (especially conservative) politicians with the sex trade and international trafficking of women for prostitution rather than other forms of forced labor or ownership of human beings.Footnote ²⁷ For example, President George W. Bush's initiatives on human trafficking emphasized sex trafficking over other forms of coerced labor, and often equated slavery with sex trafficking or prostitution more generally.Footnote ²⁸

In fact, striking parallels connect the “white slavery” era and the contemporary era. International law provides one: as with the adoption of the contemporary Trafficking Protocol in the same year, 2000, as the founding United States statute on antitrafficking, the Mann Act against white slavery was adopted in the same year, 1910, as the establishment of an international treaty, the International Convention for the Suppression of White Slave Traffic.Footnote ²⁹ International law reflected and reinforced local and national reform measures advanced by social movements focused on prostitution.Footnote ³⁰ Both “moral panics” also arose in the context of broad-based social change and transformation, marked particularly by high levels of immigration in both eras.Footnote ³¹ The analogy of prostitution to slavery, in both cases, may have helped to anchor and mobilize opposition to a perception of social threat related, in complicated ways, to interlocking dynamics of increasing border openness.

III. Memorialization of Slavery and Abolition

The analogy and comparison between the Atlantic slave trade and contemporary slavery is also increasingly featured in memorials to the slave trade. Both the United States and France have seen a burgeoning of the memorialization of slavery, the slave trade, and their abolition in recent years. In 2001, the passage in France of the Taubira Law, declaring slavery and the slave trade a crime against humanity, marked a new kind of legal memorialization that had before then been reserved for the Holocaust in Europe.Footnote ³² The law provided for teaching, research, and public commemoration of slavery, the slave trade, and their abolition in French schools and in the public sphere.

In the United States, the success of Holocaust reparations claims against Swiss banks and other institutions sparked a renewed interest in slavery reparations in the 1990s and 2000s, and a series of lawsuits against corporations and other entities (eventually consolidated in the Northern District of Illinois, where they were summarily dismissed).Footnote ³³ At the same time, a number of universities in the North and South began to examine their own histories with slavery, and several museums and historical societies launched major exhibitions regarding slavery and abolition.Footnote ³⁴ In both the United Kingdom and France, national commemorations took place in the late 1990s and early 2000s marking the anniversaries of the abolition of their slave trades.Footnote ³⁵ Each of these initiatives varied in its motivation—some were spurred by local movements of slave descendants, and others by institutions or governments seeking to commemorate but also to move beyond a shameful past—and certain patterns can be discerned. Although some of these efforts, especially those based in universities or in grassroots movements that have spurred new research into institutional histories of slavery, have been enormously fruitful and at times politically radical, whereas the more official commemorations, as well as many of the popular cultural manifestations, are somewhat more triumphalist.

In particular, as one of us has argued elsewhere in greater detail, liberal and conservative political movements can join together in certain forms of slavery memorialization, especially those that emphasize the moment of abolition, or the narrative of slavery to freedom, in a way that serves to blunt the more radical demands of racial politics. In France and the United States, movements to oppose race-conscious laws to redress the harmful legacies of slavery and its aftermath often portray slavery as part of the deep past, whereas those seeking some form of recognition or reparation emphasize that slavery is “not even past.”Footnote ³⁶

The teleological narrative of “slavery to freedom” that is so common in United States popular culture as well as in much political and legal writing, presents slavery as a prelude to the inevitable unfolding of freedom. In Europe as well as in the United States, the tendency to memorialize abolition rather than slavery itself contributes to expressions of national identity tied to a freedom principle. In contemporary conservative writings in the United States, abolitionism is also celebrated as uniquely Western, American, Christian, and/or white, which undergirds an argument that the debt of slavery has already been paid (by antislavery movements and by the Civil War).Footnote ³⁷ Furthermore, conservatives wed the slavery-to-freedom narrative to a claim about a continuous color-blind principle in the American tradition. They argue that the 1787 Constitution contained within it timeless principles of antislavery and equality, vindicating the Framers from criticism, and making slavery appear to be a temporary deviation from those principles, rather than a bedrock of United States institutions.Footnote ³⁸

In both France and the United States, another common conservative narrative emphasizes the omnipresence of slavery in world history, thereby decoupling slavery from race. For example, in France, opponents of the Taubira Law's focus on France's role in the Atlantic slave trade call attention to the fact that slavery was “practiced widely, including by Arabs and Africans themselves,” and thereby imply that France bears no special responsibility for the part it played in the slave trade.Footnote ³⁹ Opponents of the law also deplore the identification of blacks as descendants of slaves, arguing that this is a chosen identity, and deploy notions of French republican citizenship to tie race-blindness to a tradition of freedom.Footnote ⁴⁰

Furthermore, in both countries, the originary revolutionary moment—in France, associated with the Declaration of the Rights of Man and “republicanism,” and in the United States, with the 1787 Constitution, the Declaration of Independence, and the vision of the “Founding Fathers”—is invoked to create a sense of the timeless continuity of the principle of color-blindness, with slavery (and affirmative action) temporary deviations.Footnote ⁴¹ The final abolition of slavery in France in 1848, and in the United States through the Civil War and Reconstruction, then appear as affirmations of those timeless principles.

More recently, however, both liberals and conservatives have embraced another kind of historical narrative, one that not only emphasizes abolition, but also embraces a history of abolitions and abolitionism that connects the past to the present day. The connections between the “slavery to freedom” story and the new abolitionism can be seen in Jacques Chirac's presidential address commemorating abolition.

The “slavery to freedom” story was epitomized in France by the slogan of the 1998 commemoration of abolition, “Tous nés en 1848”: “All born in 1848.”Footnote ⁴² In his presidential address, Jacques Chirac focused on 1848 in order to draw a line between the monarchical past of slavery and the republican present of freedom, unifying the nation in freedom and symbolically wiping the slate clean of responsibility for slavery.Footnote ⁴³ President Chirac then drew the connection from France's abolitionist past to its neo-abolitionist future, rooting out slavery wherever it continues to exist—elsewhere in the world.Footnote ⁴⁴ By drawing a line from France's slave past to a contemporary problem that exists elsewhere in the world, it becomes easier to absolve France of responsibility for these continuing harms. Although early drafts of the Taubira Law included a proposal for a committee to study reparations, this was tabled in the face of political opposition, and the current National Committee for the Memory and History of Slavery has as its mandate only teaching, research, and commemorations.Footnote ⁴⁵ The fact that redress would not be part of the goal of the Taubira Law has been central to its success.

IV. Memorial Narratives and New Abolitionism: The Nantes Memorial

The narrative of “slavery to freedom to neo-abolitionism” is expressed as well in the texts promoting the Memorial to the Abolition of Slavery in Nantes, as well as those featured on its walls. The Nantes Memorial web site asserts, “The Nantes Memorial to the abolition of slavery also has a role to play in reminding us of the dramatic urgency of the situation of slaves today.”Footnote ⁴⁶ It then repeats the claim frequently made by new abolitionists about the absolute number of slaves today being greater than at any time in the past: “Today, it is estimated that 27 million people across the world live in slavery; twice as many as the total number of slaves deported by the Atlantic slave trade over four centuries.”Footnote ⁴⁷ The chronology on the web site is not a chronology of slavery and race relations in France, or even across the world; it is a “chronology of abolitions” that proceeds from the first abolition of slavery in an American state (Vermont in 1777) through the various French abolitions of 1794–1848, to the present day adoption of French and international laws against human trafficking.Footnote ⁴⁸

As the Nantes tourism web site explains, “Under the quayside, a 90 meter-long underground passage evokes the captives in the ships’ holds, inciting us to think about fighting for the abolition of slavery and the modern form it takes today.”Footnote ⁴⁹ The texts in the underground passageway of the memorial itself move from poems and speeches about slavery and the slave trade to quotations regarding abolitions and slave resistance, and the final three texts are the Taubira Law, a report by the Joint Information Taskforce on Modern Day Slavery to the French National Assembly regarding human trafficking in France, and Article 212-1 of the French Criminal Code regarding enslavement of human beings.Footnote ⁵⁰

Although originally a museum space had been planned that would have displayed some of the historic relics of slavery in Nantes, and could have provided a narrative of Nantes’ history of involvement in the slave trade, that structure was never built. Instead, there is an exhibit on slavery at the city museum several kilometers away. The memorial itself is quite abstract, evoking the holds of slave ships without any physical embodiments of enslaved people or enslavers. Critics of the memorial claim that it emphasizes abolition rather than slavery itself.Footnote ⁵¹ As Franck Barrau explains, “this isn't a Memorial in memory of the victims, it commemorates the abolitionists, which to me, is a big difference.”Footnote ⁵² However, Barrau, a secretary general of the International Forum of Human Rights in Nantes, wants the focus of the memorialization project in Nantes to be abolition in the contemporary sense: “Nantes has to lead a new network of cities that are trying to fight different forms of contemporary slavery … The history of slavery concerns all of Europe and fighting its modern forms is a national and European responsibility.”Footnote ⁵³

The memorial itself has a history: it was the product of several decades of activism by black slave descendants in Nantes, as well as partisan political battles in which the memorial became an important part of the resurgence of the Left in city politics. First, in 1985, the 300th anniversary of the Code Noir prompted Nantes historians to propose a memorial event that would mix an academic conference with cultural activities in the city around the memory and legacies of slavery.Footnote ⁵⁴ However, a newly elected right-wing city council unexpectedly cancelled funding for the public event, so that only the academic portion of the program was held.Footnote ⁵⁵

The opposition to a public commemoration crystallized the sense among black residents of Nantes that their neighbors refused to acknowledge the city's slaving past. They began to hold annual commemorations, and also to ally with left-wing political challengers to the city council. In 1998, a statue of a freedman was erected by an Antillean association to commemorate the 1848 abolition, and was destroyed the night after its unveiling.Footnote ⁵⁶ That crisis prompted the mayor's promise to erect a public memorial; however, it took another 14 years to build the memorial because of political opposition to “excess memory activism,” high costs, and “technical obstacles.”Footnote ⁵⁷ The decision to frame the memorial in terms that do not connote “repentance”—and certainly not “reparation”— was a conscious one.Footnote ⁵⁸ Therefore, it should not be a surprise that those who want to make the memorial meaningful in the present have turned instead to contemporary slavery as a frame of reference rather than the legacies of the slave trade in Nantes, or in France as a whole.

V. International Law Objections to the Slavery–Trafficking Nexus

Thus, the “slavery–trafficking nexus,” or the comparison between slavery past and present, has become a powerful cultural, political, and legal referent. Turning in particular to the legal realm, one finds that several types of objection have been offered to the “slavery–trafficking nexus” as a framework for addressing human exploitation: legal, factual, and policy based. The legal objection is that trafficking and slavery are actually two separate juristic frameworks. The definition of “trafficking in persons” in the Trafficking Protocol involves the use of force, fraud, or coercion against persons for the purposes of their exploitation.Footnote ⁵⁹ Specifically, in the protocol, “trafficking” means “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.”Footnote ⁶⁰ Trafficking, therefore, turns on three elements of action, means, and purpose.

By contrast, several international lawyers, most prominently Jean Allain, have argued that the term “slavery” properly receives its definition under the 1926 Slavery Convention, which provides that “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.”Footnote ⁶¹ If “slavery” regards property or ownership, or exercising the powers attached to the right of ownership, that is something different than forced labor or trafficking.

In part, this objection stems from lawyerly irritation with imprecise use of the term “slavery” by “scholar-activists” such as Bales, who defines “slavery” broadly as the “use or threat of violence, loss of free will, and appropriation of labor power.”Footnote ⁶² But the legal objection is also a factual objection. Some of the international lawyers are “legal minimalists,”Footnote ⁶³ such as Allain and Anne Gallagher, who argue that not only should the Slavery Convention be used to define slavery, but that it applies to a much smaller population than trafficked persons.Footnote ⁶⁴ The factual objection is that the term “slavery” is now being stretched to encompass a broader range of exploitative practices, which include trafficking in persons and debt bondage. Gallagher argues that out of the population of trafficked persons, only a tiny percentage could be accurately characterized as slaves.Footnote ⁶⁵

However, it is not clear that using the Slavery Convention resolves the messy problems of defining contemporary slavery, or that the Slavery Convention should be the only authoritative instrument on slavery. Furthermore, the text of the convention is actually quite vague: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”Footnote ⁶⁶ One could interpret this quite narrowly, as referring only to de jure exercise of ownership, as expounded in the 2005 case in the European Court of Human Rights, Siliadin v. France, which ruled that slavery could only exist where there existed a “genuine right of legal ownership.”Footnote ⁶⁷ But that would make the Slavery Convention largely irrelevant, because de jure slavery is now abolished almost everywhere; subsequent decisions of the European Court have found that such a narrow reading should not be permitted, as it deprives victims of “practical and effective protection.”Footnote ⁶⁸

Consequently, most commentators have instead argued that de facto exercise of the rights attached to ownership should be encompassed, and this view has been picked up in practice: the 2008 Australian High Court opinion, The Queen v. Tang, applied “the 1926 definition to de facto situations.”Footnote ⁶⁹

Here, some legal minimalists have argued that even if de facto, the de facto conditions that designate slavery must be very severe to distinguish them from lesser servitude; they must amount to total control or subjection.Footnote ⁷⁰ The expert-drafted Bellagio-Harvard guidelines take a somewhat more open-ended stance, shying away from the insistence on total control, but still providing that a factual threshold has to have been reached. The guidelines provide that “control tantamount to possession” must be established before any of the acts of ownership, such as buying, selling, transferring, or using can be acts of slavery.Footnote ⁷¹ The problem with the guidelines’ de facto definition of slavery is that the term becomes circular. The way one determines that “control tantamount to possession” is present is on the basis of evidence of the exercise of one of the powers of ownership, such as an act of using a person. In other words, an act of using a person will be slavery only if there is control tantamount to possession; however, control tantamount to possession will be determined to exist on the basis of whether there is an act of using a person (or another listed act of ownership). One would be hard pressed to resolve this circularity by establishing a cumulative requirement that more than one act of ownership exist, because this seems to run contrary to the explicit text of the 1926 Slavery Convention, which provides that exercise of “any or all” of the powers attaching to the right of ownership can meet the definition.

Fundamentally, then, the text of the 1926 Slavery Convention is quite open ended, and several interpretations are available. This means that, even if a guiding text in international law exists, such as the Convention, we must inevitably turn to policy considerations to define its parameters in application.

Beyond the legal and factual objections, then, is ultimately a policy objection about the implications of using the term. Legal minimalists warn against an expansionist understanding of slavery for policy reasons.Footnote ⁷² The first problem is dilution: the prohibition on slavery is recognized as a rule of customary international law and regularly is identified as a legal obligation erga omnes and as part of jus cogens. This is heavy artillery under international law. Anne Gallagher has noted: “Unfortunately, as the concept of slavery expands to fit the needs of scholar-activists, its legal worth diminishes.”Footnote ⁷³ This is the crux of a dilemma about the interaction of law with social movements and reform efforts. The force of the term “slavery” is precisely that we do not require a definition to bring to mind the image of the chattel slave; the term relies on that intuitive and rhetorical force, even though the vast majority of situations to which it is applied today do not resemble chattel slavery. But in using the term so freely, do we do a disservice to the term?

We have already suggested some of the regressive possibilities in expansionism: antislavery rhetoric both uses and dismisses the legacy of chattel slavery. Furthermore, in the present day, the slavery analogy could play a normalizing or legitimating function such that garden-variety labor abuses will not receive the same attention or concern. Rather than seeing exploitation as endemic to a global economy, we may write it off as an exceptional condition attributable to individual criminal acts. If conditions of exploitation do not rise to the level of slavery, according to this concern, then they implicitly can be ignored because we do not have another viable and robust framework in which to discuss them. This leads to the second policy problem, which is about the remedy. The slavery framework casts the problem of labor exploitation in criminal law terms and suggests that the remedy is individual criminal prosecution. However, this individualized model ignores the larger forces of globalization that set up structural exploitation.

VI. Alternative Paradigms to the Slavery–Trafficking Nexus

By contrast, alternative paradigms, such as those of labor law or immigration law, might address these larger structural concerns. A labor law paradigm would focus on regulatory reform—both improving the legal conditions of work and better enforcing the existing legal rules—and not just on penalizing lawbreakers. The two paradigms, criminal law and labor law, do not have to work separately; in Brazil, both are used.Footnote ⁷⁴ In the United States, however, up to now there has been relatively little interaction between the agencies charged with enforcing labor and employment law, and the antitrafficking laws. There are signs this is changing, however, assisted by the fact that the United States trafficking law permits civil as well as criminal remedies.Footnote ⁷⁵

Even where criminal and labor legal structures are not formally interconnected, the discourse of trafficking can frame investigations into labor infractions. For example, “The Price of Nice Nails,” a recent New York Times series, investigated 2000 nail salons in New York City, revealing rampant withholding of wages and terrible working conditions.Footnote ⁷⁶ One could call this a form of slavery, although the level of de facto possession or subjection is unclear, and although severe exploitation is clearly present. Despite the factual ambiguity, this case was framed in the context of trafficking and modern-day slavery. Rather than seeking prosecutions against the nail salon owners as slaveowners/traffickers, however, New York State responded with a targeted increase in labor inspections and regulation enforcement.Footnote ⁷⁷

In many cases, an immigration lens may provide even greater insight into the conditions affecting vulnerability. Both in the United States and Western Europe, immigration controls may well constitute the single greatest formal legal factor contributing to exploitation amounting to trafficking or modern day slavery.Footnote ⁷⁸ Most of the cases of the slave trade cite undocumented immigrants; others cite immigrants who are legal but in highly constrained situations, such as depending on temporary visas that rest on employment sponsorship.Footnote ⁷⁹ Some of the labor law issues are immigration law issues. For example, “[a]lmost all of the [nail salon] workers interviewed by The Times, like Ms. Ren, had limited English; many are in the country illegally. The combination leaves them vulnerable.”Footnote ⁸⁰ These workers are bargaining in the shadow of immigration law, paying off debts to smugglers, and fearing deportation.

Thus, the slavery–trafficking nexus may have limitations as a framework for understanding modern labor exploitation, and immigration law reform may be more worthy of our attention. Of course, such reform may have political pitfalls and raise its own host of legal questions; it may even require reimagination of our world as territorially bounded. Perhaps our “abolitionism” is misplaced, if we are concerned about eradicating modern day slavery. To address human exploitation, should we be abolishing borders?Footnote ⁸¹

This question also touches on the conceptually deeper interaction among slavery, citizenship, and immigration status. The United States Civil War was fought over whether slaves and their descendants could exercise powers of citizenship, and the Reconstruction Amendments effectively overturned the Dred Scott v. Sandford holding that they could not.Footnote ⁸² Today, slavery is abolished as a category, but citizenship as a marker of particular legal rights and privileges continues. If the distinguishing legal characteristic of a slave is, according to some international law experts, “some destruction of the juridical personality,”Footnote ⁸³ and if citizenship remains one of the accepted bases for deprivation of legal personality in terms of nonrecognition of rights, then the perpetuation of citizenship as a valid legal category and basis for exclusion may not be entirely benign.Footnote ⁸⁴

Citizenship is constitutive, politically, of our social contract; and, legally, to international law and sovereignty. However, sovereignty and citizenship, as markers of particularity and embodiments of specific relations of power and identity, remain in tension with international human rights norms, which argues for the recognition and protection of rights and entitlements on universalistic grounds. The rights of migrants, as noncitizens, provide a particularly sharp expression of this tension. To some degree, the contemporary focus on “slavery” is just another manifestation of this tension between international human rights and citizenship as alternate grounds for the exercise of rights.