Disaggregating Slavery and the Slave Trade

16 FL. INT’L U. L. REV. 515 (2022)

Cardozo Legal Studies Research Paper No. 639

69 Pages Posted: 7 Apr 2021 Last revised: 15 Jun 2022

See all articles by Jocelyn Getgen Kestenbaum

Jocelyn Getgen Kestenbaum

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: April 6, 2021

Abstract

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Indeed, the incorrect implementation of human trafficking completely subsumes the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for these abuses and denying justice to survivors in both international and domestic forums.

This Article disaggregates slavery from the slave trade and slavery and the slave trade from human trafficking, arguing that untangling these overlapping, yet distinct prohibitions is important for several reasons. First, slavery and the slave trade persist as harms today as evidenced by, inter alia, kafala system abuses in Lebanon, slave market auctions in Libya, and Islamic State (IS) crimes perpetrated against Yazidis. Second, slavery and the slave trade enjoy peremptory status, offering the highest form of protection, in international law. Human trafficking does not. Third, naming and addressing violations of the slave trade—the precursory acts to slavery—helps to identify, provide redress, and prevent perpetration of slavery and slave trade harms. Distinguishing the slave trade from slavery, and the slave trade and slavery from human trafficking, affords additional avenues for redress, maximizing full expressive accountability for states’ obligations to prohibit slavery and the slave trade at the international and domestic levels.

Finally, delineating these prohibitions provides legal clarity and accuracy, both by correctly characterizing harms and by properly interpreting treaty provisions and jurisdictional mandates. In the short term, playing “fast and loose” with distinct prohibitions undermines international law’s institutional legitimacy. In the long term, state practice and opinio juris that moves away from enforcing against slavery and slave trade harms might lessen or even erode these protective customary international law prohibitions.

Suggested Citation

Getgen Kestenbaum, Jocelyn, Disaggregating Slavery and the Slave Trade (April 6, 2021). 16 FL. INT’L U. L. REV. 515 (2022), Cardozo Legal Studies Research Paper No. 639, Available at SSRN: https://ssrn.com/abstract=3821202

Jocelyn Getgen Kestenbaum (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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