2. Exploitation, racial capitalism, and primitive accumulation in the international order

The underlying claim of this article follows Susan Marks’ challenging assertion that international legal scholars need to reorient their work to engage with the neglected concept of ‘exploitation’, so as to better elucidate the structural embeddedness of the international legal order with imperialism and capitalism, especially focusing on its processes.Footnote ⁵ The critical literature in international law does not go far enough to show how, ‘exploitation belongs to the normal functioning of [the international] system in which capital accumulation depends on labour exploitation’.Footnote ⁶ International law and its institutions, in other words, produce, structure and justify exploitation. Although it presents itself in a humanitarian and rights-based guise, exploitation is a reflection of the logic of the capitalist system as a whole – a process that Marx famously described as coming into the world ‘dripping from head to toe, from every pore, with blood and dirt’.Footnote ⁷ The international legal order is, in turn, a constituent part of the capitalist system. By approaching the ‘world as a structured totality’, international law is exposed as being a part of this bloody process, which it cannot escape.Footnote ⁸

International legal scholars should, therefore, realize the extent to which the international system (including international institutions and law) could not be understood in separation from ‘the wider structures of the [capitalist] production and reproduction of social life’.Footnote ⁹ For this reason, it must be analysed in its contribution to the process of so-called ‘primitive accumulation’, which is at the heart of any understanding of the capitalist mode of production. International law is an integral part of this structural foundation of the capitalist world. Marx referred to the concept of ‘primitive accumulation’ to describe the historical process by which the capitalist mode of production is established. He considered it as a dual process involving ‘the historical origins of … wage labor, as well as … accumulation of the necessary assets in the hands of the capitalist class to employ them’.Footnote ¹⁰ The accumulation of wealth was spawned in the fifteenth century with the plunder of the Americas of its gold and silver, and the enslavement of its indigenous populations, while the making of ‘free’ wage labourers involved the expropriation of the agricultural worker from the soil, the enclosure of the common lands, and the uses of extra-economic methods of coercion to ensure that the peasantry’s only recourse for survival was the selling of their labour power for a wage.Footnote ¹¹ The ever expansive nature of capitalism meant that it constantly moved beyond its national borders in search for raw materials and cheap labour.Footnote ¹² To do this, capitalism and its socio-economic/labour formations needed to be exported as well. Labour had to be ‘freed’ from pre-capitalist social relations and replaced with capitalist structures and its modes of production. The violent expansion of capitalism around the globe, therefore, including the systemic processes of colonization, was facilitated by international law.Footnote ¹³ International law was and remains an integral and constituent part of this entire process – a process whereby labour is expropriated, commodified, and exploited.

There has been a peculiar muteness in TWAIL/critical legal scholarship when it comes to linking international law to the processes of capitalist accumulation, and particularly labour exploitation and commodification. This silence has more recently been pointed out by Adrian A. Smith who asks: ‘Why is the commodification of labour so hard to remember and so easy to forget?’Footnote ¹⁴ This article attempts to fill these gaps by revealing how a certain conception of ‘free wage labour’ not only emerged from the expansive capitalist mode of production, but was also legitimized as being a prerequisite for ‘economic development’. In his monumental history of the imperialism of international law, Antony Anghie showed how the development of labour policy was central to the operations of the mandate system, where labour became the prism through which, ‘native societies were transformed in such a manner as to integrate themselves into the overarching system of the market economy’.Footnote ¹⁵ Labour, he wrote, became the ideological and ‘conceptual category’ invoked by the mechanisms of the mandate system to transform the native to become ‘more productive’ for capitalism and the market economy, and to connect the native to European precepts of ‘economy, progress, and capitalism’.Footnote ¹⁶ However, how exactly did this violent process of primitive accumulation and the ‘freeing’ of native labour (as an international legal process) for capitalist production unfold on the ground? Moreover, how did international institutions – such as the PMC together with the ILO and the working committees of the League – contribute to the legitimization of capitalist accumulation, the expansion of ‘free’ (wage) labour ideology, the commodification of labour, and the justification of imposing a (‘civilized’) European form of labour relations in the Third World?

Critical legal scholars have generally lumped questions of labour with that of economic development.Footnote ¹⁷ In fact, even the most Marxist-oriented scholars of the Third World have oddly not adequately engaged with questions of labour exploitation, let alone capitalist accumulation. B. S. Chimni, for example, who developed a comprehensive Marxist critique of mainstream approaches to international law, has argued that the primacy of ‘the logic of capital’ (amongst other logics) is constitutive of world order.Footnote ¹⁸ However, he does not go on to show how this logic historically operates through international law and institutions on the ground and how it structures labour exploitation in the Third World.Footnote ¹⁹ This is despite the fact that it is the exploitation of labour that explains, according to Marx, the ‘secret of making a profit’, the formation of surplus value, in the context of what he specifically called ‘the secret of primitive accumulation’.Footnote ²⁰ In other words, if international law operates based on the logic of capital, then surely the exploitation of labour must be a part of its current and historical development. However, the question of labour exploitation is seldom considered as being central to any understanding of the international order.

The critical political theorist, Mark Neocleous has argued that the development of the international legal order not only occurred in tandem with, but also facilitated the ‘liberal war of accumulation’ – a class war over (natural) resources and labour (exploitation) around the world.Footnote ²¹ In that sense, the history of international law was part and parcel of the process of primitive accumulation, whereby the peasantry was ‘freed’ from their lands, turning into wage-labourers, whose labour power could then be exploited. In his analysis, Neocleous emphasizes how the entire process of primitive accumulation, starting with the enclosure movement in England in the seventeenth century, where the commons were forcefully expropriated from the common people, not only occurred through the law,Footnote ²² but more specifically through the operations of international law:

In this manner, the violence of primitive accumulation and the European conquest of the world was not only facilitated by international law and its institutions (not to mention the law of private property) but was an integral feature of it. International law was a vital ‘weapon’ that was used by European powers in what was considered a ‘just’ class war against ‘uncivilized barbarians’ and ‘unproductive waste’ – a war that was to be veiled through its articulation in international legal discourse as an ‘ideological form of peace’.Footnote ²⁴ These ‘barbarians’ not only needed to be ‘civilized’ and made ‘productive’, but the ‘wastefulness’ of their lands, which they were unable to develop in capitalist terms could not be tolerated, and for this reason they had to be conquered. This multi-layered process also operated in conjuncture with the production of ‘racial regimes of ownership’ and the uses of property law to commodify native land leading to the dispossession of its indigenous people.Footnote ²⁵

This article suggests that by revisiting the early interwar history of the institutions of the League of Nations one could understand the way in which international law facilitated and structured this overall process of capitalist accumulation, demonstrating how it engaged with the question of labour exploitation in the Third World. During this period, the development of international ‘native’ social/labour policies contributed to the expansion of ‘free labour’ ideology, and in turn international labour standards. The interwar period has generally been left to specialist scholars of international labour law, including those who focus on the history of the ILO, rather than taken more broadly as being an essential part underlying the institutions of the international legal order as a whole.Footnote ²⁶ Even these scholars relegate this period to a secondary one of mere historical background, preferring to focus on the post-1945 decolonization period of technical assistance.Footnote ²⁷ This is unfortunate, since the interwar period and the ‘question of native labour’ in the history of international law reveals the deeply structural way international institutions initially embedded a unique European labour formation into the international legal order that would safeguard capitalist accumulation and labour exploitation in Africa and other parts of the Third World. In addition, it developed the ideological justifications and the legal discourse for a supposedly more ‘humanitarian’ form of capitalist exploitation within the international legal order.

To make this point, I will focus on (sub-Saharan) AfricaFootnote ²⁸ in general where the so-called ‘problem of native labour’ first emerged as a question for international institutions, largely in response to how certain European powers exploited African labour in the most flagrant way.Footnote ²⁹ Africa, of course, played a central part in the history of imperialism. The pan-Africanist, George Padmore once wrote, ‘[w]hat India is to the British Empire, Africa is to world imperialism. It is here that the economic and political interests of all the Western European powers – Great Britain, France, Belgium, Italy, Portugal, Spain and even America … converge’.Footnote ³⁰ The example of Africa therefore could not be studied in isolation from the history of international law, inter-imperial diplomacy, and global capitalist development is useful for understanding how imperialism strategically reformulated its precepts in the early twentieth century through the novel mechanisms of the international legal order.

The internationalization of ‘native labour’ policy, and its reformulation through the drafting of conventions and labour standards, was not only entangled with the ‘civilizing mission’ but also served the purpose of structurally linking Africa and other parts of the Third World to the circuits of the capitalist global economy. In his classic study, How Europe Underdeveloped Africa, the Guianese Marxist scholar-activist, Walter Rodney, vividly exposed the way in which the exploitation of African labour came hand in hand with the extraction of natural resources in the totalizing process of underdevelopment, while the ‘rule of colonial [and international] law’, maintained ‘the conditions most favorable for the expansion of capitalism and the plunder of Africa’.Footnote ³¹ The re-articulation of international labour policy to reconcile with the emerging international legal order was central to this process. ‘What’, after all, asked Padmore, ‘is land to white men in tropical Africa without black labour?’Footnote ³² Re-arranging the exploitation of African labour through its internationalization, juridification and standardization was, therefore, itself a vital part of ‘opening up’ Africa and its workers to global capitalist markets.

A focus on the interwar period also reveals how international law and racism were constitutive of each other. In so doing, it could not only address the gap in the literature concerning labour exploitation and capitalist accumulation, but also the understudied role of race in the history of international law, which is a constitutive part of its totality.Footnote ³³ As Christopher Gevers has argued, the ‘international’ itself was conceived as ‘a racial imaginary – a White International’ institutionalized as a ‘de jure international order’ with the founding of the League of Nations.Footnote ³⁴ This fact – that international law is inherently constituted on the basis of white supremacy – has, however, been rendered ‘conceptually invisible’ by international lawyers.Footnote ³⁵ It is for this reason that the concept of ‘racial capitalism’ is essential to any unpacking of the racist foundations of the international legal order.

Racial capitalism was first theoretically developed by Cedric J. Robinson, who used the term to argue that contrary to orthodox Marxist theory, European capitalism did not rationalize social relations.Footnote ³⁶ Instead, capitalism incorporated the racialism of European feudalism into its capitalist processes, and this explains the centrality of racial violence to the making of the modern world. The significance of Robinson’s intervention in our case is that capitalism could only be understood as racial capitalism – it cannot be understood in any other way.Footnote ³⁷ This is because; ‘capital can only be capital when it is accumulating’ and it can only accumulate through racialized violence.Footnote ³⁸ In this way, racialization and capitalist accumulation merge into the totality of the structures of the international order. International law is, therefore, imbricated in the processes of racial capitalism; it is ‘structurally, rooted in both capital accumulation and racialization. It mediates and articulates the expansion of capital through racialising certain territories and societies. In so doing, it opens them up to penetration of capital, and facilitates their control and management’.Footnote ³⁹

In a similar vein, the concept of ‘primitive accumulation’ should be theorized from ‘within racial capitalism’,Footnote ⁴⁰ so as to more adequately grasp its embeddedness with racialization on a global scale and to emphasize how a colonial prism is central to understanding ongoing primitive accumulation and its racializing logic.Footnote ⁴¹ Hence, primitive accumulation must be understood outside of its traditional nation-state frame or the narrow English experience, and instead must be centred on the basis of the ‘colonial empire’ – the correct ‘politico-legal framework within which to examine the development of global capitalism’.Footnote ⁴² Only then, could one grasp the manner in which the process of primitive accumulation hinges on the ‘takeover of territory, appropriation of material resources, exploitation of labour and interference with political and cultural structures of another territory or nation’, and how the economies of the colonizer and colonized are a part of one unified whole.Footnote ⁴³ Such a wide analysis would in the end reveal how the international legal order was constructed on the basis of white supremacy for the facilitation of racial/colonial accumulation in its expropriation of the labour, land, and resources of the Third World.Footnote ⁴⁴ I will return to an overall analysis of the implications of this to the international order later with my engagement with the Black radical/internationalist tradition.

The international institutions and governing structures articulated the processes of (racial) capitalist accumulation, not only under the principles of ‘trusteeship’ and ‘development,’ but particularly ‘humanitarian intervention’, which emerged after the drafting of international instruments to suppress slavery and regulate forced labour.Footnote ⁴⁵ These instruments made up a part of what could be referred to as the international process of ‘freeing native labour’ from the commons with the ultimate aim of systematically transforming ‘natives’ (dependent on their lands) into ‘wage earners’ (dependent on a wage), and essentially ensuring their availability for exploitation by the colonial state, European colonial companies, and the global capitalist economy at large. It was not only because the ideology of ‘free wage labour’ based on contractual relations was considered to be the epitome of ‘civilized’ labour relations that made it necessary to develop through the emergent international institutions uniform ‘native labour standards’, but a new wage labour class in the Third World was thought to be a vital precondition for the modernization of native life and the initiation of economic development. There were also other concerns, especially the need to reform colonial practices for the new interwar international legal order of Geneva so as to facilitate rather than disturb capitalist processes. In other words, the international concern for the reform of colonial labour polices was largely an attempt to safeguard the capitalist system from any possibility of (revolutionary) rupture. Although, international legal mechanisms would serve this purpose well for some time, it was not long before African workers around the world would be politicized by revolutionary and radical ideas, organizing for their rights, and forming nationalist anti-colonial trade unions and anti-imperialist transnational associations.Footnote ⁴⁶

3. Anti-slavery politics, humanitarian intervention, and the origins of inequality in the international legal order

To understand the role of international institutions in the expansion of free labour ideology and labour exploitation in Africa, one must return to the history of ‘anti-slavery politics’ beginning with the Berlin Conference of 1884–1885, which legitimized European authority over the African continent under international law. The Berlin Conference ‘clothed’ annexation with legitimacy.Footnote ⁴⁷ It regulated certain aspects of imperial and colonial behaviour in relation to Africa, especially the rules of free trade, the international administration of rivers, and most significantly, the suppression of the slave trade.Footnote ⁴⁸ The provision relating to the slave trade made it clear that, ‘trading in slaves is forbidden in conformity with the principles of international law’.Footnote ⁴⁹ This would subsequently be drafted into the Brussels Act of 1890, which would become the first comprehensive multilateral treaty to target slavery under the guise of ‘international responsibility’ and ‘native welfare’.Footnote ⁵⁰ There was, however, no mechanism to enforce either the Berlin Act or the Brussels Act, but it was in the interests of the signatories to keep the spectre of slavery alive to justify continual European intervention in Africa. The Brussels Act, therefore, in fact put an ‘anti-slavery guise on the colonial occupation and exploitation of Africa’.Footnote ⁵¹ Consequently, although in decline, other forms of slavery (especially in domestic or agricultural forms) remained unabated, while the violent Scramble for Africa unfolded. Imperial powers, therefore, only imposed these instruments of anti-slavery in a ‘highly variable manner’, depending on their own interests.Footnote ⁵²

Anti-slavery, as Suzanne Miers has painstakingly shown, was approached by European powers, especially the British, from a position of high morality to further their own colonial and imperial ends.Footnote ⁵³ In other words, it was not for actual concern of the cruelty of slavery towards African peoples that European powers were so keen to abolish the slave trade through international law, but rather as Fredrick Cooper underscores,

Abolitionism, therefore, was unmistakably driven more by the economic considerations of imperial powers and the profit margin rather than humanitarian concerns.Footnote ⁵⁵ In short, the issue of slavery remained a very convenient devise used by imperial powers to further their own political and economic interests whenever they saw fit.Footnote ⁵⁶

The internationalization of ‘anti-slavery politics’ was, moreover, not only a central part of the long durée of international capitalist expansion, but also contributed to the maintenance of the unequal and racialized violent structures of the international legal order.Footnote ⁵⁷ It was because of its interconnection to the promotion of capitalist expansion that, ‘in the long run it failed to contribute substantially either to challenging global economic inequality, or to more far-reaching emancipatory transformations of social relations “on the ground”’.Footnote ⁵⁸ In reality, ‘anti-slavery politics’ further justified Western dominance over Africa and other parts of the Third World in what has been referred to as ‘humanitarian imperialism’.Footnote ⁵⁹ The aim was to replace the slave trade with ‘legitimate’ commerce and economic access for European traders.Footnote ⁶⁰ The illegality of slavery under international law would thereafter become ‘the gold standard of civilization’Footnote ⁶¹ in the international system, being incorporated into customary international law as jus cogens.Footnote ⁶² This humanitarian standard would be used to uphold intervention into the affairs of weaker (Third World) states and justify their ‘collective dependency’ on the (European) international system, compelling conformity to and co-operation with the global capitalist economy.Footnote ⁶³

It was naturally not only crucial for the development of international labour standards, but the expansion of ‘free labour’ ideology. ‘Free labour’ was constructed and pitted against its absolute opposite – ‘slave labour’, which it was argued needed to be abolished with European penetration into the ‘dark continent’, particularly through commerce and trade. Anti-slavery politics and its re-articulation through the mechanisms of international institutions, therefore, sharpened the dichotomy between free and unfree slave labour, ‘constructing freedom and slavery as two mutually exclusive conditions of labour’.Footnote ⁶⁴ This sharp dichotomy, as I will argue, eventually brought about an ideological break within the historical unity and constitutive reality that exists between colonialism and racial capitalism in relation to the totality of the international legal order. In other words, racial capitalism was justified on a world scale through international mechanisms that essentially dis-embedded racialization and colonization (which are inherently part of the global processes of capitalism) from the international legal order, veiling them in a humanitarian/civilizational ideological guise. This also justified a more ‘progressive’ humanitarian form of imperial control of the Third World. ‘Free labour’, became ‘a vital concept distinguishing the progressive colonizer of the early twentieth century from the freebooters, bandits, kidnappers, and buyers of human flesh, who had for the past centuries represented Europe overseas’.Footnote ⁶⁵ Anti-slavery politics, therefore, significantly contributed to the valorization of the ideology of ‘free (wage) labour’. It also stressed the necessity of internationalizing the process of ‘freeing’ labour from slave (and slave-like) labour relations. In this way, it was considered a necessary part of the ‘civilizing mission’ to bring about the social and labour relations needed for capitalist ‘development’ in Africa and the Third World. The ideology of anti-slavery, as well as, abolitionism itself, as Susan Zimmermann demonstrates, was tied to a certain ‘labour ethos’, which was meant to remodel non-European societies into an idealized European vision of ‘capitalist social [and labour] relations’Footnote ⁶⁶ The making of this labour ethos was not only at the heart of the emergent interwar international legal order, but had an ideological function that operated to veil capitalist exploitation and imperialist domination and its racial foundations.

4. The centrality of the ‘question of labour’ to the international order and its institutionalization through the League of Nations

The importance and centrality of the ‘question of labour’ was from the very outset weaved into the emergent international legal order. Part XIII of the Treaty of Versailles emphasized that the maintenance of peace ‘could be established only if it is based upon social justice’; asserting that as long as ‘conditions of labour exist involving such injustice, hardship, and privation … the peace and harmony of the world [was] imperiled’.Footnote ⁶⁷ It was recognized that international action in relation to labour was necessary for the maintenance of world peace. In a similar way, Article 23 of the Covenant of the League contains a general provision that required members states to secure and maintain, ‘fair and humane conditions of labour for men, women, and children’, as well as to ‘undertake to secure just treatment of the native inhabitants of the territories under their control’.Footnote ⁶⁸

The ILO would consequently come into existence as an institution that was meant to operate as ‘an alternative to violent revolution’.Footnote ⁶⁹ It was essentially a conservative reformist response to the Russian Revolution of 1917.Footnote ⁷⁰ Its purpose was to depoliticize the working classes and the ‘question of labour’ as a whole, isolating it from the revolutionary trends of the time. As Guy Fiti Sinclair has shown, the ILO was an international organization that embodied, ‘international law’s aspiration to reform the world’, in particular on European industrial labour standards – standards with which all countries were measured on.Footnote ⁷¹ It would eventually expand its power and influence, experimenting with certain technical practices and legal technologies to address the ‘social question’ of non-European societies and states, many of which would become acceptable standard practices of international organizations and law.Footnote ⁷²

During the interwar period, the ILO was tasked to develop labour standards for all metropolitan and non-metropolitan labour, operating in conjuncture with other international institutions, such as the Permanent Mandates Commission (PMC) of the Mandate system.Footnote ⁷³ The PMC, which included a non-voting seat for an ILO representative, would at times overshadow the work of the ILO in Mandated territories. This separation of functions within League institutions demonstrates just how the dissecting processes of international institutions functioned to structurally detach questions of (native) labour and slavery from the totality of the (racial) international capitalist system.

The League’s attempt to define these new general principles of ‘social peace’ and labour justice in more precise terms in international law first began with the formation of the 1924 Temporary Slavery Commission (TSC), which was made up of eight ‘independent experts’, who were tasked to inquire on the issue of slavery worldwide. The members of the TSC were chosen in consultation with their national governments (all colonial powers). Most had experience as colonial administrators, such as Fredrick Lugard, the former British colonial administrator and architect of the technique of ‘indirect rule’ in tropical Africa, who was also a member of the PMC.Footnote ⁷⁴ The TSC had limited powers, as it was not only temporary, but also, purely advisory, it could not launch investigations and could only take evidence that was already approved by the governments in question. Nevertheless, Lugard and other members like the chief of the Diplomatic Division of the ILO, Harold Grimshaw attempted to push the TSC’s scope much further than the colonial powers were willing to go. In the end, however, although the TSC report affirmed its opposition to slavery ‘in all its forms’, including serfdom, child labour, slave dwelling, and debt-slavery, it settled to outlaw slavery gradually and only legally.Footnote ⁷⁵ Like most colonial governments, it saw the sudden abolition of all forms of slavery to be too disruptive to customary traditions, and most significantly, the capitalist system as a whole.Footnote ⁷⁶

There was, however, more controversy when it came to the question of forced labour. Colonial and mandatory administrations were very protective of their labour policies and resisted any extension of the definition of slavery to forced labour. As we shall see, this was due to the fact that forced labour was integral to the maintenance of the colossal infrastructural projects, which were administered by European companies and concessions. The TSC made it clear that it only envisaged a gradual transition from slavery to free labour, validating the existence of a regulated form of forced labour. Although, it acknowledged that forced labour was ‘a disguised form of slavery’, it recommended that it could only be used for ‘essential’ public works, not for private employers, and that it should always be adequately paid.Footnote ⁷⁷

The TSC recommendations led to the drafting of the 1926 Slavery Convention.Footnote ⁷⁸ Although this Convention became the ideological foundation upon which all other agreements on slavery (including ‘analogous’ forms to slavery) would be based, laying down the principles upon which the treatment of ‘native labour’ would be grounded, it was intentionally drafted to be in the words of Miers: ‘a paper tiger’, lacking any teeth.Footnote ⁷⁹ On a practical level, not only were there no enforcement mechanisms, but slavery was vaguely and narrowly defined only as chattel slavery, i.e., ‘the status of a person over whom all or any rights attaching to ownership are exercised’.Footnote ⁸⁰ Although, slavery, it goes on, had to be suppressed ‘in all its forms’; these forms were not spelled out, while its suppression was to occur ‘progressively’.Footnote ⁸¹ The definition of slavery was, hence, defined as a narrow (legal) isolated ‘single-issue’ concern, rather than a structural one, and this was a deliberate method to sever it from its historical link with the systems of colonialism and capitalism.Footnote ⁸² In this way, the cause of anti-slavery was co-opted by the great powers to ensure that the international legal order and its global economic system was preserved and protected from any radical or revolutionary transformations.

5. The ILO, the 1930 Forced Labour Convention and its material consequences

Most colonial powers, in particular, France, Portugal, Belgium, and Italy, were resistant to any attempt to expand the definition of slavery to that of forced labour, as it would go against their own economic and colonial interests. It was this lack of consensus that led to a compromised position whereby forced labour was not abolished, but rather Article 5 of the 1926 Slavery Convention settled on its regulation.Footnote ⁸³ Forced labour would consequently be relegated to the ‘expertise’ of the ILO, which was given the defensive mandate of conducting a study on how to prevent, ‘compulsory labour or forced labour from developing into conditions analogous to slavery’.Footnote ⁸⁴ The ILO moved to advance a normative solution for the question of forced labour that would not antagonize colonial powers.

As mentioned earlier, during the interwar period, the ILO functioned (like all League institutions) under a racial and colonial framework that differentiated between (non-industrial) ‘native labour’ in the non-metropolitan world from (industrial) ‘metropolitan or European labour’.Footnote ⁸⁵ The ILO’s Constitution contained a ‘Colonial Clause,’ which allowed metropolitan powers to exclude their overseas territories from the ratification of ILO norms and standards.Footnote ⁸⁶ ‘Native’ or ‘colonial’ labour was deemed as a ‘special’ form of labour whereby the application of labour standards was not required to be stringent. Rather than grasping the manner in which the violence and inequality of racial capitalism was a consequence of the structures of the international legal order itself, the ILO saw unequal development in Africa and the Third World as an ‘internal issue’ relating to local conditions that required the formulation of ‘special standards’ to discipline, educate and civilize native labour. Consequently, ‘universal’ labour standards were not applied consistently in the colonies and dependencies, and this was convenient for colonial powers as they used this flexibility to manoeuvre around what they deemed as distinctive ‘local conditions’ of the Third World and ‘special circumstances’ of non-metropolitan labour.Footnote ⁸⁷ This institutional arrangement did not only weaken the application of international labour standards, but (ironically) ended up legitimizing colonial policies, racialized violence, as well as, structuring inequality in the international order even further.

Although the ILO’s first Director-General Albert Thomas preferred to abolish forced labour altogether, he still saw the ILO’s role as a ‘civilizational’ one that was meant ‘to lift the chains that still bind the native so as to prepare him for the next educative step’.Footnote ⁸⁸ The ILO’s task, which it undertook through its permanent Committee of Experts on Native Labour, was to develop ‘civilized’ labour policy for the native so that he begins to ‘work for his own civilization’, and transform his primitive society into a ‘producer and consumer society’.Footnote ⁸⁹ In reality, the ‘standard of civilization’ and its hierarchies clearly operated under a racialized understanding of the world despite its emphasis on cultural differences and economic development – it was not only the standard of so-called ‘European civilization’ but it was the standard that reflected the modern capitalist state.Footnote ⁹⁰ Moreover, it was, as Ntina Tzouvala has shown, a ‘mode of argumentation’ and structure that reflected the capitalist modes of production – one that mediated between the (racial) ‘logic of biology’ and the (developmental) ‘logic of improvement’.Footnote ⁹¹ Despite this, no amount of recognition could render ‘darker’ peoples and states as having reached this ‘civilized standard’ as we already know from the history of the first ‘Black Republic’ of Haiti.Footnote ⁹² In this way, the ‘standard of civilization’ was never meant to be a threshold, but rather a ceiling, and its uses by international institutions, such as the ILO, only veiled the structural racist foundations that constituted the international legal order.Footnote ⁹³

In any case, it was in this context that the ILO’s 1930 Forced Labour Convention was drafted. The Convention’s aim was the ‘amelioration of the lot of peoples … whose progress towards civilization is as yet little advanced’.Footnote ⁹⁴ Although the Convention obliged its signatories to eventually abolish forced labour ‘in all its forms,’ especially for private individuals or companies, it allowed for certain exceptions; it was namely permitted for ‘public purposes’ in transitional periods. The justification behind such an exception was that the ‘the law of work was considered as the law of nature’,Footnote ⁹⁵ forced labour for public purpose would have an ‘educative’ function towards the native (as long as it was regulated, not abused, and fostered native development). Forced labour for public purpose would only be allowed when there was a lack of voluntary labour; it would be restricted to 60 days of the year and would be paid at the market rate. There was no doubt that this exception in relation to public works – such as the building of roads, bridges, railways or ports – was useful for the construction of the vital infrastructure needed for private capitalist investment and expansion – contributing to the ‘arterial networks’ that would ‘open up’ Africa to the global economy.

Forced labour was, therefore, framed as a temporary expedient that needed to be regulated so that it was not abused. However, the reality on the ground was anything but humane, as the varied labour systems of the colonies and mandates were generally entrenched even further into violence, mistreatment, and exploitation. During the twelfth session of the International Labour Conference when the convention was debated in Geneva, most delegates seemed to have justified the necessity of forced labour based on the need to civilize the ‘idle’ and ‘lazy’ native on the benefits of labour and industry.Footnote ⁹⁶ Although, the ILO was firmly against forced labour, it did not question the ‘civilizing mission’, and advocated for a humanitarian imperialism. The French workers’ delegate, Leon Jouhaux illustrated this contradictory logic well when he stated:

The ILO’s goal of abolishing forced labour was, therefore, not to eliminate exploitation tout court because of its cruelties or to target its root cause – that of colonialism and the system of racial capitalism, but rather it was to better serve, preserve and ‘humanize’ the extreme abuses of this system.

Not only was the argument on the importance of labour in civilizing the ‘lazy native’,Footnote ⁹⁸ an argument that was already prevalent in the colonies, but also the British technique of ‘indirect rule’, whereby labour which was recruited by native chiefs was reconciled with the Convention, opening up the door for further abuse.Footnote ⁹⁹ This occurred in the Belgian mandate of Rwanda and Burundi, for example, where the PMC legitimized such forms of compulsion under the banner of custom to deal with the problem of food shortage and famine.Footnote ¹⁰⁰ In this case, forced labour (whether communal or tribute labour) was asserted to be for the benefit of the community and its ‘development’, because it was a part of ‘native tradition’, which must be preserved. This was, however, more often in actuality the ‘invention of tradition’ for the maintenance of colonial relations rather than the preservation of custom.Footnote ¹⁰¹

The passing of the Convention merely ‘pushed forced labor underground’,Footnote ¹⁰² as coercion continued to be regularly practiced, whether it was in the Belgian Congo,Footnote ¹⁰³ the Portuguese colonies of Angola,Footnote ¹⁰⁴ Guinea-Bissau and Mozambique,Footnote ¹⁰⁵ French Cameroon, or mandated Tanganyika and Togo. Coercion was varied, and diverse methods were used, such as tax collection; corvée labour; recruitment of labour brigades and battalions; the uses of labour recruitment agents (who often took women and girls as hostages to round up African male labour); and convict labour.Footnote ¹⁰⁶

Forced labour could not therefore be properly regulated and it continued to increase. Many times, it was disguised as wage labour. In colonial Mozambique, for instance, ‘administrators camouflaged their coercion of Africans behind the legal fiction of “contracts”’.Footnote ¹⁰⁷ The natives signed these ‘contracts’, although they did not know their rights since laws were seldom written in African languages.Footnote ¹⁰⁸ Another example was the Portuguese shibalo system of forced labour, which considered all African males as being ‘idle by law’, and unless they could prove to the contrary, they would be conscripted to undertake forced labour on public works for six months.Footnote ¹⁰⁹ One account in Raymond Buell’s encyclopedic study, The Native Problem in Africa, described the consequences of labour recruitment and the dire condition of native labour in the Kilimanjaro region of British administered Tanganyika, the site where the Central Railway was being constructed. Buell refers to the Tanganyika Labour Commissioner, who described the long journeys of the African labourer in his report:

This account illustrates the miserable reality of these workers in many African territories at the time, and the manipulative uses of contract and ‘free wage labour’ to enlist compulsory forms of labour, a practice that continued long after making domestic legislation ‘consistent’ with the 1930 Convention.Footnote ¹¹¹ A significant number of these workers died in this process of constructing ‘public’ infrastructure. For instance, at least 25 per cent of the labour force, according to Rodney, died annually of starvation and disease between 1922 and 1933 in the course of building the Brazzaville to Point-Noir railway between the Congo and Chad.Footnote ¹¹² It was no surprise then that most Africans who lived through this period would come to refer to wage labour as merely another form of slavery.Footnote ¹¹³

Why then did the 1930 Convention, which was hailed as a ‘breakthrough’ and ‘success’Footnote ¹¹⁴ for opponents of forced labour, result in the further legitimizing and structuring of labour exploitation? If one were to explore the significance of forced labour to the development (or rather underdevelopment) of Africa, it would become clear that forced labour could not be entirely abolished, not merely because of the pressures of certain colonial powers, but also the fact that it was intimately connected to the capitalist modes of production, and so it was, in fact, as we shall see, the other side of free labour.

Besides, considering the persistent problem of labour shortage in many African countries, wage labour could not be voluntarily hired, for the African farmer relied on his land, he did not feel the need to travel long distances to work for a European plantation in appalling conditions. Accordingly, ‘if the African would not be willingly [made] to work for Europeans, then he had to be [forced]’.Footnote ¹¹⁵ Colonization and capitalism, therefore, necessarily required the application of non-economic compulsion to turn Africans into ‘civilized’ wage earners, for ‘unfree labour’ could not be entirely abolished (let alone regulated) without overthrowing its root cause – the capitalist system in toto, and its expansion into the colonies. The notorious leader of the white settlers in Kenya, Col. Grogan, emphasized the importance of forced labour to settler colonialism quite clearly when he infamously said, ‘we have stolen his [i.e., the African’s] land. Now we must steal his limbs. Compulsory labour is the corollary of our occupation of the country’.Footnote ¹¹⁶ This quote highlights the manner in which (settler) colonialism, compulsion and labour exploitation were a part of the same continuum.

In the end, the ILO’s definition of forced labour was so narrow, that it ended up providing legitimacy for all sorts of racialized violent practices that were certainly as brutal if not worse than slavery, for whatever practices that were not identified as being coerced within this narrow definition were exonerated by international law and its institutions.Footnote ¹¹⁷ The international process of ‘freeing’ native labour turned out to be about the ideological sharpening of the dichotomy between forced labour and free labour under international law, so as to create the impression that these were two absolute opposites; isolating ‘free labour’ from the violence of colonial and racial capitalism and equating it with actual economic emancipation. This, however, could not have been further from the truth. As will be shown, only a wide interpretation of wage and forced labour that takes into account their interconnections to slavery and racialized violence, and which exposes the international order’s role in maintaining the exploitation and subjugation of the peoples of the Third World to the capitalist system could bring about a meaningful rearticulation of labour emancipation on a world scale.

6. The Black radical/internationalist tradition and the critique of ‘international order as enslavement’

To better understand how the ambivalence of the free/unfree labour continuum described above was resolved through the mechanisms of international institutions in a way that preserved the capitalist mode of production in the colonial world, I will draw on the expansive critique of what has been referred to as the ‘Black radical/internationalist tradition’, represented by the work of W. E. Du Bois, Eric Williams and C. L. R. James. These radical Black activist-writers persistently exposed the manner in which the (white) international order was intimately constitutive of racism – what Du Bois referred to as, the global ‘colour line’.Footnote ¹¹⁸ In their critiques, they argued that one could not fully grasp the structures of the world order without looking into the history of slavery and enslavement that was embedded into it.Footnote ¹¹⁹ This was an expansive and ‘dual critique of empire as a form of enslavement and international racial hierarchy’.Footnote ¹²⁰ The very structures of the international legal order should, therefore, be considered as perpetuating and maintaining the ‘enslavement’ of weaker states and coloured peoples of the Third World. Slavery, here, is not defined in a narrow sense, but rather in an expansive way, which certainly includes all forms of exploitation and racialized violence, whether it is in the form of ‘free’ or ‘unfree’ labour.

Rewriting the history of slavery, these Black radical internationalists exposed how it was central to the making of the world order. Eric Williams used economic data to expose how it was the vast profits from the transatlantic slave trade that sparked the industrial revolution in Britain.Footnote ¹²¹ His argument echoed Marx, who made a similar point when he wrote:

C. L. R. James’ classic study, The Black Jacobins (1938) revisited the history of the Haitian revolution of 1791, recounting the struggles of the Haitian people for emancipation from slavery under the leadership of the Black revolutionary Toussaint L’Ouverture.Footnote ¹²³ James overturns the notion that it was (European) abolitionists in the nineteenth century who initiated the process of emancipation from slavery. It was rather, he showed, black slaves ‘from below’ with their own agencyFootnote ¹²⁴ and revolutionary actions that sparked the process of their liberation from the chains of slavery, and this certainly had an impact on international law.Footnote ¹²⁵ This approach, therefore, turned the liberal narrative of international order on its head; underlining the continuities between New World slavery, the colonial scramble for Africa, and the conquest of the Third World.

The Black radical tradition analysed slavery itself as being a form of labour exploitation that continues to endure in other modern capitalist forms.Footnote ¹²⁶ As Padmore explains, although chattel slavery ended, imperial expansion in Africa ‘forced the natives into wage-slavery’.Footnote ¹²⁷ The humanitarianism, which imperialism used to cloak itself with, is exposed for what it is – an ideological reformulation of hegemony and imperial power, especially through the mechanisms of international law. It was for this reason that from the outset these Black scholars argued that re-establishing international order on the basis of concrete equality was the only way to begin the process of repairing the injustices of the past.

As Secretary of the Pan-African Congress, Du Bois drafted the ‘Manifesto to the League of Nations’ in September 1921, urging the emergent international institution to directly address the ‘question of native labour’ as one pertaining to global (racial) capitalism and labour exploitation rather than an isolated problem:

It was, in other words, only by grasping the manner in which the violent exploitation of racial capitalism was an integral part of the totality of international order could one truly begin to engage with the question of world emancipation of all peoples from the labour exploitation of global capitalism.

The expansive approach of the Black radical/internationalist critique, therefore, which views the structure of the international order as amounting to a form of ‘enslavement’ to racial capitalism, elucidates the manner in which the labour exploitation of the peoples of the Third World was central to the making of the international legal order. Moreover, it shows how ‘free wage labour’ has more in common with unfree labour. Therefore, it turns out that it was the dialectical characteristics of the processes of capitalist accumulation that the ‘freeing’ of labour was (and remains) not only always incomplete, but necessarily reliant on various forms of violent compulsion, including the extra-economic forms of unfree labour. As Nick Bernards has pointed out in his reading of Marx, capitalist accumulation is a ‘contingent process’ that reproduces ‘various forms of irregular labour alongside proletarian free labour’.Footnote ¹²⁹ Violent compulsion of unfree labour and the ‘silent compulsion’ of free labour worked hand in hand in the overall process of capitalist accumulation and exploitation.Footnote ¹³⁰ Consequently, although the process of ‘freeing’ labour or its proletarianization is never complete,Footnote ¹³¹ this is not because ‘unfree labour’ is excluded or left out from the ‘normal’ operations of capitalist markets. Rather, it is precisely because it is a part of the processes of capitalism and the expansion of its markets around the world. In this way, ‘the historical genesis of capitalist accumulation [always] depended on the incorporation of a variety of different unfree forms of labour’.Footnote ¹³² Free and unfree labour, therefore, should be viewed as being a part of the same continuum of capitalist accumulation and not as opposing categories.

The role of international law and institutions, particularly the ILO, in the process of capitalist accumulation was clearly to sharpen the ideological differences between free and unfree labour, essentially legitimatizing some forms of compulsion in the Third world. The aim was merely to deal with the excesses of colonialism rather than eliminate the root cause of its violence – that of the racial capitalist system itself. International law, therefore, served the purpose of ‘cocooning’ certain colonial practices from the wider operations of capitalist accumulation.Footnote ¹³³ In so doing, ‘free wage labour’ was in turn validated and turned into a precondition for the economic ‘development’ of the Third World. It also resulted in the preservation of capitalist expansion by ideologically reformulating it as a humanitarian endeavour that ‘civilizes’ and develops native social life.Footnote ¹³⁴ The whole process, including the regulation of forced labour, therefore amounted to the valorization of ‘free labour’ ideology, so as to safely integrate ‘“freely” performed “native wage labour” into the expanding capitalist world economy, in turn, preserving the racial violence of the capitalist system, albeit in a veiled legal form’.Footnote ¹³⁵

The Forced Labour Convention, as one of the four ‘core’ ILO Conventions,Footnote ¹³⁶ and the oldest and most ratified ILO convention, has barely been altered in the near century of its existence.Footnote ¹³⁷ It has been affirmed more recently in 2014 with the passing of the Protocol to the Forced Labour Convention (No.29), which recognized that novel labour standards will eventually need to be developed to deal with the different forms of unfree labour that have emerged in the past few decades. This is revealing, since despite its evolution, the root problems of unfree labour remain unhindered to this day.

The post-1945 era saw forced labour approached in universal terms as a human rights issue, particularly in the context of its use in Nazi concentration camps. It was also during this period that the ILO’s principal method of developmental action moved from a purely standard setting function to technical-legal assistance, bringing about the ‘technicalization of its legal functions’, and accentuating the administration of legal rules through scientific expertise and social engineering.Footnote ¹³⁸ The ILO would later, once again, reorient its focus away from exclusively looking into economic development in the Third World, moving towards questions of ‘freedom of association’ and political repression. The drafting of the Abolition of Forced Labour Convention in 1957, for instance, was a product of an ideological struggle between contested conceptions of labour relations in the context of Cold War politics.Footnote ¹³⁹

Ultimately, however, instead of approaching forced labour as an outcome of the exploitation of the capitalist system, the depoliticizing effects of these strategic shifts and realignments would further make international institutions, like the ILO, ineffective in bringing about any substantial structural change. The convergence of human rights discourse with international labour law, which equates labour rights with human rights, was one way that international labour law was depoliticized, eradicating the ‘centrality of the conflict and structural power disparity, between labour and capital’.Footnote ¹⁴⁰ Another is the focus on criminal law to deal with certain forms of trafficking with the passing of the UN Convention Against Transnational Organized Crime (2000), which includes the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children’.Footnote ¹⁴¹ The latter contains the first legal definition of ‘exploitation’ in any treaty and yet quite narrowly highlights sexual exploitation as its main focus. Similarly, by assuming that the underlying issues that lead to exploitation could be dealt with through international law (whether labour law, human rights, or criminal law), the root cause of economic exploitation, which requires more structural transformation of the entire system, is once again ignored. International law and its institutions, therefore, turned out to be instruments of depoliticization, as well as concealment – contradictorily veiling the inherent structural violence of racial capitalism.

It has generally been argued that the ILO contributed to the shifting of attitudes about ‘colonial hardship’, turning into a ‘centre for documenting labour abuses’ and eventually the first ‘depositories’ for human rights abuses.Footnote ¹⁴² It provided for a ‘profound’ normative shift, which established ‘an international conscience’ that applied pressure on states to guarantee better working conditions.Footnote ¹⁴³ Although true, one should not underestimate the depoliticizing effects of the ILO’s international legal mechanisms and ideological underpinnings, which guaranteed the improvement of the material conditions of native labour, but rather than overthrowing the existing capitalist system, preserved its exploitative structural apparatus. It comes as no surprise, then, that the current era of neoliberalism has in fact led to a marked increase in forms of unfree labour, particularly in Africa.Footnote ¹⁴⁴ The informal workers of the present era have come to replace the native labourers of old as those who, ‘stand at the centre of some of the largest governance questions of our time’, in the name of a ‘global economic good’ that they are hardly benefitting from rather than colonial development.Footnote ¹⁴⁵ Despite all these efforts, the ILO has put the latest number of those living under ‘modern forms of slavery’ at over 40 million.Footnote ¹⁴⁶ International law and its mechanisms it seems have been more effective in organizing, structuring and standardizing capitalist exploitation – re-articulating its racialized violence through regulation and reform rather than its elimination.